Judicial review without shortcuts: A vindication of the knower from a pragmatist and critical theoretical approach

The institution of judicial review allows the examination of judicial decisions and laws by evaluating their inconsistency with respect to principles of higher rank, generally of a constitutional nature. A judicial review, then, seeks to establish whether or not there is a constitutional infraction. The possibility of a disagreement about the ‘right’ application or interpretation of a norm, says Lafont, stems from the problem of indeterminacy, since ‘even written constitutions contain abstract and open-textured provisions that require further specification when applied to specific cases and in the face of societal changes’ (Lafont, 2020: 222). In that sense, she concludes, ‘the inherent indeterminacy of many constitutional provisions makes constitutional review both unavoidable and problematic’ (Lafont, 2020: 222).

The main question to answer here is who and with what criteria does it establish when this inconsistency occurs. And it is precisely on this crucial question that Lafont’s response can be problematic by not drawing all the consequences of her own premises in terms of a democratic theory that overcome the limits imposed by a liberal constructivism.

For Lafont, it cannot be only the ‘knowers’ in the sense of judges of the Supreme Court or similar who decide about the better interpretation of a problematic issue. Given her emphasis placed on the principle of self-government, for Lafont this task needs, in some way, the participation of citizens. This is the expertocratic and juricentric ‘shortcut’ that Lafont wants to avoid in her book, in order to develop the whole potential of judicial review as a democratic institution. In this spirit, coinciding with Waldron, she affirms that ‘those citizens directly affected by the contested statutes or policies are more likely to reliably detect the specific ways in which they infringe upon their rights than other citizens or politicians’ (Lafont, 2020: 231). The problem is that this ‘epistemic privilege’ that for Lafont citizens now enjoy makes it contradictory to continue to sustain the strong difference between the knower (as the one oriented to discover an alleged truth about the ‘right’ interpretation) and the citizen (as the one with the political right to be heard, although she factually does not participate in the decision-making processes), on which she bases a significant part of her argument against epistocracy (Lafont, 2020: 80f).

Contrary to Lafont’s dichotomy and following a pragmatist point of view, one could say that what in this context makes a citizen a knower is not her cognitive competence to reach a single ‘truth’ or the more accurate interpretation of those high-rank constitutional principles, but rather her (always relational) locations in the social structure, which allow her to perceive more clearly certain problems – what Iris Young calls a situated social perspective. These different modes of experiencing problematic situations enable citizens to possess different partial – and ideally also mutually complementary – ‘knowledges’. Thus, those affected are knowers in the wider sense of having access to some problems (or some aspects of a problem) that for other members of the society may not exist, but that could help them to correct and enhance their understanding of the problematic issue (Young 2000, chap. 3).

This brings me to a second question. Although those affected are in a privileged position to make something visible as a violation of fundamental rights or freedoms, it is often the case – as Lafont also recognizes – that those are never taken seriously because their perspective is incompatible with the majority position and the status quo (Lafont, 2020: 231–33). This unbridgeable gap between those affected and the rest of society (including judges), which difficult to achieve deliberative outcomes, is the basis of Lafont’s argument against the Waldron’s ‘instrumental’ approach. Thus, since there are few possibilities for majorities to be persuaded and change their opinions in the field of political debate, there must be a superior legal complement of a binding nature (Lafont, 2020: 12–13, 231–34). That is to say, what is not achieved through epistemic or political means is done through legal ones. ¹ In this sense, assuming a strong division between a legal obligation and a moral duty (where, as for Habermas, Right is a kind of ‘functional complement’ of morality), it emerges for Lafont as a main virtue of judicial review its role as an institutional and legal guarantee for the proper functioning of participatory democracy (Habermas, 1992: esp. chaps. 3, 4).

In fact, Lafont’s argument against the epistemic and ‘outcome-based’ understanding of judicial review is based on the distinction between the legal obligation to be heard and the moral and epistemic duty to take seriously the perspective of the other. But since the latter is rarely fulfilled, judicial review must be satisfied only by establishing the institutional conditions so that everyone has the opportunity to be heard. However, in the words of Iris Young, this would only guarantee external inclusion, but not necessarily internal inclusion, and it is precisely the latter that is relevant to a real transformation that effectively complies with the principle of self-government (Young 2000, chap. 2). For it seems reasonable to assume that the goal of legal contestation is the real and effective resignification and transformation of the norms and institutions, so that the contradictions detected by those affected in the statute or judicial decision in question are overcome. In other words, I have doubts about whether the self-government requirement is satisfied by only formally guaranteeing citizens the right to participate in the processes.

In this regard, it could be helpful to Lafont’s project to concentrate more on the epistemic potential of the social actors and movements – as real situated knowers in the sense above indicated – who, without necessarily resorting to an argumentative exchange, can express their discontent creatively and successfully by other means, in order to reach an immanent reconfiguration of the space of reasons when they have to face normative structures for which they are an ‘other’ with nothing relevant to say. ² But this does not mean to confer on them only a negative critical role, as Lafont seems to suggest by recognizing them the right to ‘initiate a debate’ about a norm or institution they consider problematic, even if they do not really manage to modify it or influence the decision-making processes about its validity. In addition to this role as a social sensor that allows groups, from their epistemically privileged position, to indicate when a modification is required, it is also necessary to raise the socio-ontological question about what in the constitution of the normative social structure makes the demands legitimate. And this is where Lafont problematically resorts to non-saturated constitutional principles as the ultimate reference, instead of developing a more comprehensive theoretical framework that explains, as I have indicated above, how the affected themselves could track the normative contradictions in search of greater internal consistency or a better solution to social problems. ³ This would also weaken the appearance of formalism which, after all, is not the intention of Lafont’s proposal. But perhaps this can be material for another book.