Global Constitutionalism, Human Rights and Proportionality: Institutionalizing Socratic Contestation
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Global Constitutionalists have described and analyzed how with the spread of rights based judicial review after the end of the Cold War proportionality analysis has become a central feature of reasoning about rights. Yet one of the core questions such a practice raises concerns the legal point of such a practice and the role of courts applying such an open ended test. The institutionalization of a rights-based proportionality review shares a number of salient features and puzzles with the practice of contestation that the Socrates of the early Platonic dialogues became famous for. Understanding the point of Socratic contestation, and its role in a democratic polity, is also the key to understanding the point of proportionality-based rights review. When judges decide human or constitutional rights cases within the proportionality framework, they do not primarily interpret authority. They assess reasons. Not surprisingly, they, like Socrates, have been prone to the charge that they offend the values and traditions of the community, when they critically examine and sometimes reject positions held by public authorities and widely endorsed by citizens. Proportionality-based judicial review institutionalizes a right to contest the acts of public authorities and demand a public reasons-based justification. There are four types of pathologies that occasionally infect democratic decision-making, that rights-based proportionality analysis is well suited to identify: first, restrictions based on tradition, convention or preference that are not connected tom plausible policy concerns. Second, restrictions based on reasons relating to “the good”, which are off limits as a reason to justify restrictions of human and constitutional rights. Third, the problem of government hyperbole or ideology. Here government policies are loosely related to legitimate purposes, but they lack a firm and sufficiently concrete base in reality. Fourth, there is the problem of capture of the legislative process by rent seeking interest groups. Socrates was right to insist that the practice of contestation he engaged in deserves the highest praise in a democratic polity. It is equally true that an impartial and independent court engaged in rights-based proportionality review deserves to be embraced as a vital element of liberal constitutional democracy. The right to contest complements the right to vote as a core legal mechanism empowering citizens to participate and ensuring that government is held accountable.
Abstract
Global Constitutionalists have described and analyzed how with the spread of rights based judicial review after the end of the Cold War proportionality analysis has become a central feature of reasoning about rights. Yet one of the core questions such a practice raises concerns the legal point of such a practice and the role of courts applying such an open ended test. The institutionalization of a rights-based proportionality review shares a number of salient features and puzzles with the practice of contestation that the Socrates of the early Platonic dialogues became famous for. Understanding the point of Socratic contestation, and its role in a democratic polity, is also the key to understanding the point of proportionality-based rights review. When judges decide human or constitutional rights cases within the proportionality framework, they do not primarily interpret authority. They assess reasons. Not surprisingly, they, like Socrates, have been prone to the charge that they offend the values and traditions of the community, when they critically examine and sometimes reject positions held by public authorities and widely endorsed by citizens. Proportionality-based judicial review institutionalizes a right to contest the acts of public authorities and demand a public reasons-based justification. There are four types of pathologies that occasionally infect democratic decision-making, that rights-based proportionality analysis is well suited to identify: first, restrictions based on tradition, convention or preference that are not connected tom plausible policy concerns. Second, restrictions based on reasons relating to “the good”, which are off limits as a reason to justify restrictions of human and constitutional rights. Third, the problem of government hyperbole or ideology. Here government policies are loosely related to legitimate purposes, but they lack a firm and sufficiently concrete base in reality. Fourth, there is the problem of capture of the legislative process by rent seeking interest groups. Socrates was right to insist that the practice of contestation he engaged in deserves the highest praise in a democratic polity. It is equally true that an impartial and independent court engaged in rights-based proportionality review deserves to be embraced as a vital element of liberal constitutional democracy. The right to contest complements the right to vote as a core legal mechanism empowering citizens to participate and ensuring that government is held accountable.
참고문헌 (87)
- "Charter of Fundamental Rights of the European Union", ~
- "European Convention on Human Rights", ~
- "Grundgesetz für die Bundesrepublik Deutschland", ~
- "The Canadian Charter of Rights and Freedoms", ~
- "The Constitution of the Republic of South Africa", ~
- "Belcacemi, App. no. 37798", 13, Eur. Ct. H.R, 2017
- "Boumediene v. Bush, 553 U.S. 723, 128 S Ct 2229", ~ (2008)
- "BVerfG, 1 Bvr 1778", 01, 2004
- "BVerfG, 1 Bvr 3198", 07, 2008
- "BVerfGE 54, 143", ~
- "BVerfGE 6, 32 (“Elfes”)", ~
- "BVerfGE 80, 137", ~
- "C-117", 76, Ruckdeschel & Co v. Hauptzollamt Hamburg-St Annen, 1977, E.C.R. 01753, 1977
- "C-280", 93, Germany v. Council, 1994, E.C.R. I-4973, 1994
- "Dakir, App. No. 4619", 12, Eur. Ct. H.R (, 2017
- "Dobbs v. Jackson Women’s Health Organization, 597 U.S. __ (2022), No. 19-1392", ~ (2022)
- "Hamdan v. Rumsfeld, 548 U.S. 557, 126 S Ct 2749", ~ (2006)
- "Hamdi v. Rumsfeld, 542 U.S. 507, 124 S Ct 2633", ~ (2004)
- "Handyside v. The United Kingdom, App. no. 5493", 72, Eur. Ct. H.R, 1976
- "Korematsu v. United States, 323 U.S. 214", ~ (1944)
- "Lustig-Prean and Beckett v. The United Kingdom, App. nos. 31417", 96 and32377, pp.2000, ~
- "New York State Rifle & Pistol Association, Inc. v. Bruen, 597 U.S", ~ (2022)
- "Rasul v. Bush, 542 U.S. 466, 124 S Ct 2686", ~ (2004)
- "S.A.S. v. France, 2014-III Eur. Ct. H.R. 341", ~
- Adrian Vermeule, "Law and the Limits of Reason" (2009), Oxford University Press
- Adrian Vermeule, "Mechanisms of Democracy: Institutional Design Writ Small" (2007), Oxford University Press
- Aharon Barak, "Proportionality" (2012), Cambridge University Press
- Alec Stone Sweet, "Proportionality, Balancing and Global Constitutionalism", Colum. J. Transnat’l L, 47, pp.73~ (2008)
- Alec Stone Sweet, "Governing with Judges: Constitutional Politics in Europe" (2000), Oxford University Press
- Alec Walen, "Judicial Review in Review: A Four-Part Defense of Legal Constitutionalism—A Review Essay on Political Constitutionalism, by Richard Bellamy", Int’l J. Const. L, 7, pp.329~ (2009)
- Alexander Bickel, "The Least Dangerous Branch: The Supreme Court at the Bar of Politics" (1986), Yale University Press
- Allan Bloom, "The Closing of the American Mind" (1987), Simon & Schuster
- Barry Friedman, "The Countermajoritarian Problem and the Pathology of Constitutional Scholarship", Nw. U. L. Rev, 95, pp.933~ (2001)
- Charles Fried, "Right and Wrong" (1978), Harvard University Press
- Christopher Eisgruber, "Constitutional Self-Government" (2007), Harvard University Press
- Dana Villa, "Socratic Citizenship" (2001), Princeton University Press
- David Beatty, "The Ultimate Rule of Law" (2004), Oxford University Press
- Eyal Benvenisti, "Counterterrorism:Democracy’s Challenge" (2008), Bloomsbury
- Gerald Neuman, "Human Rights and Constitutional Rights: Harmony and Dissonance", Stan. L. Rev, 55, pp.1863~ (2003)
- Grant Huscroft, "Proportionality and the Rule of Law" (2015), Cambridge University Press
- Gregory Vlastos, "The Socratic Elenchus", Oxford Studies in Ancient Philosophy, 1, pp.27~58 (1983)
- Gustav Gilbert, "Nuremberg Diary" (1961), Da Capo Press
- Hannah Arendt, "The Origins of Totalitarianism" (1951), Schocken Books
- Jamal Greene, "How Rights Went Wrong: Why Our Obsession with Rights Is Tearing America Apart" (2016), Houghton Mifflin
- Jeremy Waldron, "A Rights-Based Critique of Constitutional Rights", Oxford J. Legal Stud, 13, pp.18~ (1993)
- Jeremy Waldron, "The Case Against Judicial Review", Yale L. J, 115, pp.1348~ (2006)
- Jeremy Waldron, "Torture and Positive Law: Jurisprudence for the White House", Colum. L. Rev, 105, pp.1681~ (2005)
- Jeremy Waldron, "Law and Disagreement" (1999), Clarendon Press
- John Ely, "Democracy and D istrust: A Theory of Judicial Review" (1981), Harvard University Press
- John Rawls, "Political Liberalism" (1993), Columbia University Press
- John Rawls, "The Law of Peoples" (2001), Harvard University Press
- John Stuart Mill, "Considerations on Representative Government" (1861)
- Larry Kramer, "The People Themselves: Popular Constitutionalism and Judicial Review" (2004), Cambridge University Press
- Lawrence Sager, "A Theory of American Constitutional Practice" (2004), Yale University Press
- Leo Strauss, "Persecution and the Art of Writing" (1952), The University of Chicago Press
- Leo Strauss, "The City and Man" (1964), The University of Chicago Press
- Lorraine Weinrib, "The Migration of Constitutional Ideas", pp.83~113 (2006), Cambridge University Press
- Marie Anne Glendon, "Rights Talk: The Impoverishment of Political D iscourse" (1993), Simon & Schuster
- Mark Tushnet, "Taking the Constitution Away from the Courts" (1999), Princeton University Press
- Mattias Kumm, "Constitutional Courts and Legislatures: Institutional Terms of Engagement", Católica Law Review, 1(1), pp.55~66 (2017)
- Mattias Kumm, "Constitutional Rights as Principles: On the Structure and Domain of Constitutional Justice", Int’l J. Const. L, 2, pp.574~ (2004)
- Mattias Kumm, "The Past and Future of EU Law: The Classics of EU Law Revisited on the 50thAnniversaryoftheTreatyofRome 106", pp.106~118 (2009), Hart Publishing
- Mattias Kumm, "Law, Rights, Discourse: The Legal Philosophy of Robert A lexy", pp.131~166 (2007), Hart Publishing
- Mattias Kumm, "The Idea of Socratic Contestation and the Right to Justification:The Point of Rights-Based Proportionality Review", Law & Ethics Of Human Rights, 4(2), pp.142~175 (2010)
- Moshe Halbertal, "Concealment and Revelation" (2007), Princeton University Press
- Pierre Hadot, "Philosophy as a Way of Life: Spiritual Exercises from Socrates to Foucault" (1995), Wiley-Blackwell
- Pierre Hadot, "What Is Ancient Philosophy?" (2002), Harvard University Press
- "Plato, Apology of Socrates", ~
- "Plato, Gorgias", ~
- "Plato, Menon", ~
- "Plato, Republic", ~
- Rainer Forst, "Das Recht auf Rechtfertigung" (2007), Suhrkamp
- Richard Bellamy, "Political Constitutionalism: A Republican Defense of the Constitutionality of Democracy" (2007), Cambridge University Press
- Richard Fallon, "The Core of an Uneasy Case for Judicial Review", Harv.L. Rev, 121, pp.1693~ (2008)
- Richard Robinson, "Plato’s Earlier Dialectic" (1953), Clarendon Press
- Richard Tuck, "Free Riding" (2008), Harvard University Press
- Robert Alexy, "A Theory of Constitutional Rights" (2002), Oxford University Press
- Robert Alexy, "A Theory of Legal Argumentation: The Theory of Rational Discourse as Theory of Legal Justification" (1989), Clarendon Press
- Robert Bork, "Freedom’s Laws: The Moral Reading of the American Constitution" (1996), Harvard University Press
- Robert George, "In Defense of Natural Law" (2001), Oxford University Press
- Rosalind Dixon, "The Forms, Function and Varieties of Weakened Judicial Review", International Journal of Constitutional Law, 17(3), pp.904~930 (2019)
- Stephen Gardbaum, "The New Commonwealth Model of Constitutionalism", Am. J. Comp. L, 49, pp.707~ (2001)
- Stephen Harrard, "Backsliding" (2021), Cambridge University Press
- Steven Calabresi, "Term Limits for the Supreme Court: Life Tenure Reconsidered", Harv. J. L. & Pub. Policy, 29, pp.769~ (2006)
- Steven Livitski, "How Democracies Die" (2018), Random House
- Vicki Jackson, "Proportionality: New Challenges, New Frontiers" (2017), Cambridge University Press
- Wil Waluchow, "A Common Law Theory of Judicial Review: The Living Tree" (2007), Cambridge University Press