Argumentative Representation and Democracy: A Critique of Alexy's Defense of Judicial Review of Legislation

• Published date: 01 June 2023
• Author: Esteban Buriticá‐Arango,Julián Gaviria‐Mira
• Date: 01 June 2023
• DOI: http://doi.org/10.1111/raju.12375

© 2023 University of Bologna and John Wiley & Sons Ltd.

Ratio Juris. Vol. 36 No. 2 June (160–177)

Argumentative Representation and

Democracy: A Critique of Alexy’s

Defense of Judicial Review of

Legislation

ESTEBAN BURITICÁ- ARANGO and JULIÁN GAVIRIA- MIRA*

Abstract. Robert Alexy has argued that the democratic objection to judicial review of legislation

can be successfully addressed by assuming that judges exercise a special form of argumentative

representation. In this article we argue that Alexy does not explain (as he should) under what

circumstances judicial review tends to produce better decisions than parliamentary procedure,

nor does he explain how judicial review can have a greater intrinsic value than parliamentary

procedure. Subsequently, we argue that the intrinsic value of argumentative representation de-

pends on the promotion of citizen deliberation, whereas its instrumental value depends on

judges being committed to the rights of discrete and insular minorities in the face of hostile

majorities.

1. Introduction

Robert Alexy has argued in recent years that the role of constitutional judges in con-

temporary democracies should be conceived as a special form of political represen-

tation not based on voting and majority rule— such as volitional or parliamentary

representation. This “argumentative representation,” as he calls it, is based on the

ability of judges to make correct decisions on constitutional matters and the exis-

tence of rational citizens who accept those decisions only because they are correct

(Alexy2005, 577; 2014, 208). Alexy argues that this kind of representation can suc-

cessfully face the democratic objection to the judicial review of legislation and tries

to prove it through his main theories about principles, rational practical discourse,

the claim to correctness, and the dual nature of law. However, his arguments diverge

considerably from those used in traditional philosophical discussions about the jus-

tification of judicial review of legislation. Often the (apparent) gaps in his theory

must be filled with assumptions and speculations, so an analysis of his work, while

necessary, is particularly challenging.

Other authors have also suggested that the justification for judicial review de-

pends on the representative role that judges should play when interpreting the

constitution. Ely argued that courts in the United States should not only strengthen

* The authors would like to extend their gratitude to the anonymous blind reviewers for their

valuable feedback and suggestions, which greatly improved the quality of our manuscript.

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Ratio Juris, Vol. 36, No. 2 © 2023 University of Bologna and John Wiley & Sons Ltd.

Argumentative Representation and Democracy

representative legislative processes through judicial review, but also virtually rep-

resent excluded or underrepresented groups, such as aliens, homosexuals, African

Americans, and even women from representative political processes. Through vir-

tual representation, mandated by the Fourteenth Amendment, judges can tie “the

interests of those without political power to the interests of those with it” and ensure

that “a majority does not systematically treat others less well than it treats itself”

(Ely1980, 83– 101). More recently, Pettit has suggested that judges can enjoy dem-

ocratic legitimacy when they indicatively represent citizens. The representation is

indicative if the representative, whether or not elected by the citizens, is not obliged

to track the interests of representees but does share their “general attitudes, whether

on procedural or substantive matters, and is likely to vote accordingly” (Pettit2010,

427). From this viewpoint, the representative is “an indicative proxy rather than a

responsive deputy:” Representatives in this sense enjoy “democratic credentials in

their own right” (ibid., 431) by being subject to political and institutional control.

As proxies, judges should “ensure that those in any potentially disadvantaged sec-

tor of society can be represented by one of their kind, or someone sympathetic, in

challenging and testing the measures at issue” (Pettit2012, 237). Both Ely and Pettit

argue, like Alexy, that virtual or indicative judicial representation is consistent with

the democratic ideal. However, Alexy’s account is quite different in nature and scope.

Alexy argues that argumentative representation by judges is not volitional repre-

sentation, so they do not need to directly represent the will of the people. Judges are

not required to directly track or share the desires, interests, and values of actual citi-

zens, nor to take them into account in their votes and arguments. Rather, judges are

expected to identify correct answers to constitutional issues and justify them in ways

that rational citizens, if they exist, can accept (Alexy 2014, 209). As we argue in

Section2, the argumentative representation thus defined seems to have both intrinsic

and instrumental value. In general, a political decision- making process has intrinsic

value when it reflects the values of political morality, such as self- government or

equal respect, no matter how valuable the outcomes. In Alexy’s theory, argumenta-

tive representation seems to loosely reflect self- government and equal respect be-

cause it requires judges to make decisions based on what reasonable citizens can

accept and to include all reasonable points of view. Furthermore, a political decision-

making process has instrumental value when it probably leads to correct or desirable

outcomes, as Alexy argues to be the case with judicial review.1 Alexy bases this sin-

gular conception of representation on theses that have influenced both the practice

and the theory of judicial review in some countries of Europe and Latin America, so

we will focus specifically on his theory.

This article discusses Alexy’s defense of judicial review of legislation. We pro-

pose a reconstruction of the concept of argumentative representation and argue that

it is insufficient or inadequate to defeat the democratic objection. First, we argue

that Alexy does not explain (as he should) under what circumstances argumentative

representation can have greater instrumental value than parliamentary representa-

tion, nor does he explain how reasonable disagreements in pluralistic societies can

be satisfactorily resolved. Second, we argue that argumentative representation gen-

erally fails to realize some moral values associated with parliamentary representa-

tion. Finally, we propose an alternative conception of argumentative representation

1 Both expressions are used in a similar way in Bayón2009, 191, and Lafont2020, 79, 231.