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Braslia Volume 13 Nmero 100 Jul/Set 2011

Centro de Estudos Jurdicos da Presidncia Subchea para Assuntos Jurdicos da Casa Civil Presidncia da Repblica

Presidenta da Repblica Dilma Vana Rousseff Ministra-Chefe da Casa Civil da Presidncia da Repblica Gleisi Helena Hoffmann Subchefe para Assuntos Jurdicos da Casa Civil e Presidente do Centro de Estudos Jurdicos da Presidncia Ivo da Motta Azevedo Corra Coordenadoras do Centro de Estudos Jurdicos da Presidncia Mariana Barbosa Cirne Carolina Costa Ferreira Monique Isabelle Martins Pacheco

Revista Jurdica da Presidncia / Presidncia da Repblica Centro de Estudos Jurdicos da Presidncia Vol. 1, n. 1, maio de 1999. Braslia: Centro de Estudos Jurdicos da Presidncia, 1999-. Quadrimestral Ttulo anterior: Revista Jurdica Virtual Mensal: 1999 a 2005; bimestral: 2005 a 2008. ISSN (at fevereiro de 2011): 1808-2807 ISSN (a partir de maro de 2011): 2236-3645 1. Direito. Brasil. Presidncia da Repblica, Centro de Estudos Jurdicos da Presidncia. CDD 341 CDU 342(81)

Centro de Estudos Jurdicos da Presidncia Praa dos Trs Poderes, Palcio do Planalto Anexo II superior - Sala 204 A CEP 70.150-900 - Braslia/DF Telefone: (61)3411-2937 E-mail: revista@presidencia.gov.br http://www.presidencia.gov.br/revistajuridica

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Human Rights adjudication in contemporary democracies: Courts specific moral insight as a decisive advantage over legislatures (a modest and partial response to Jeremy Waldrons core case against judicial review)
Francisco Verbic
Advogado. especialista em direito civil (Universidad Nacional de La Plata). LLM em International Legal Studies (New York University NYU). Artigo recebido em 22/03/2011 e aprovado em 28/09/2011.

SUMMARY: 1 Introduction 2 Empirical and theoretical framework 3 Waldrons (conditional) case against judicial review 4 The legitimacy of Courts as an appropriate institutional setting for final HRs adjudication: one decisive outcome-related reason that can make a case for judicial review 5 Advocacy groups strategies (falling outside the core case?) 6 How individual cases come into the legislative process 7 Final remarks 8 References

ABStRAct: the paper confronts some of the arguments presented by Jeremy Waldron against the mechanism of judicial review and tries to provide a modest contribution for supporting the legitimacy of courts as an adequate institutional setting to adjudicate human rights within contemporary democratic systems. The first part presents the twofold framework of my position, i.e, the particular open structure and expansive scope that human rights have acquired in the international field, and Rainer Forsts theory about the foundations of this kind of rights. the second one describes a limited piece of Jeremy Waldrons core case against judicial review, focusing on the reasons he provides to discard the specific moral insight of courts in this area of rights adjudication as an outcome-related advantage that can support the mechanism of judicial review. Finally, the paper develops a critique of Waldrons position regarding that advantage. Without contesting his four demanding assumptions about how democratic institutions work in an ideal context, I argue that the specific moral insight that Courts have as a consequence of how individual cases are presented before them is a strong advantage over legislatures and can be dispositive in the case for judicial review in this field of law if we think about it from within the empirical and theoretical framework described in the first part of the work. KeYWoRdS: Human Rights Judicial Review democracy Right to Justification.

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A adjudicao dos Direitos Humanos nas democracias contemporneas: a reflexo moral especfica dos tribunais como uma vantagem decisiva sobre os parlamentos uma resposta modesta e parcial ao principal argumento de Jeremy Waldron contra o controle judicial
ReSUMo: o artigo confronta alguns dos argumentos apresentados por Jeremy Waldron contra o mecanismo de controle judicial e tenta dar uma modesta contribuio para reafirmar a legitimidade das Cortes como uma ferramenta institucional adequada para promover direitos Humanos, nos sistemas democrticos contemporneos. o artigo est dividido em trs partes: a primeira apresenta as duas bases da minha posio, isto , a particular estrutura aberta e o escopo amplo que o conceito de direitos Humanos tem adquirido no campo internacional, e a teoria de Rainer Forst sobre a fundao deste tipo de direitos. A segunda parte descreve uma parte limitada do argumento central de Jeremy Waldron contra o controle judicial, focando nos argumentos desenvolvidos pelo autor para descartar a moral especfica das Cortes nesta rea de adjudicao de direitos como uma vantagem relacionada que pode apoiar o mecanismo do controle judicial. Finalmente, o artigo desenvolve uma crtica da posio de Waldron, recomendando tal vantagem. Sem contestar seus quatro pressupostos sobre como as instituies democrticas trabalham num contexto ideal, argumento que a moral especfica das Cortes como uma consequncia de como casos individuais so apresentados, pois uma grande vantagem em detrimento dos Poderes Legislativos e podem ser dispostos no caso de controle judicial no campo do Direito, se houver a reflexo por meio dos aspectos emprico e terico descritos na primeira parte do artigo. PALAvRAS-cHAve: direitos Humanos controle judicial democracia direito de justificao.

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Ladjudication des Droits de lHomme dans les dmocraties contemporaines : la rflexion morale specifique des tribunaux comme un avantage dcisif sur les parlements [une rponse modeste et partielle largument principal de Jeremy Waldron contre le contrle juridictionnel amricain (judicial review)]
RSUM: cet article confronte certains des arguments prsents par Jeremy Waldron contre le mcanisme de contrle juridictionnel et tente modestement de fournir une contribution la soutenance de la lgitimit des tribunaux en tant que cadres institutionnels appropris pour statuer sur les droits de lHomme au sein des systmes dmocratiques contemporains. cet article est divis en trois parties. La premire prsente le double cadre de ma position, cest dire, la structure ouverte et le champ expansif que les droits de lHomme ont acquis dans le domaine international, et la thorie de Rainer Forst sur ltablissement de ce genre de droit. La deuxime partie dcrit partiellement largument principal de Jeremy Waldron contre le contrle juridictionnel, en se concentrant sur les raisons quil fournit pour carter les rflexions morales des tribunaux dans ce domaine du droit comme un avantage li aux rsultats qui peut appuyer le mcanisme de du contrle juridictionnel. la fin, larticle dveloppe une critique de la position de Waldron concernant cet avantage. Sans contester ses quatre hypothses sur le fonctionnement des institutions dmocratiques dans un contexte idal, je soutiens que les rflexions morales des tribunaux qui ont comme consquence un changement de la faon dont les cas sont introduits devant ces cours sont un avantage fort sur les parlements et peuvent tre dterminantes dans les cas de contrle juridictionnel dans ce domaine du droit si lon pense ce sujet au sein du cadre empirique et thorique dcrit dans la premire partie de ce travail. MotS-cLS: droits de lHomme contrle juridictionnel dmocratie droit de justification.

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1 Introduction
purpose of this paper is to discuss some of the arguments presented by Jeremy Waldron against the mechanism of judicial review, and try to provide a modest contribution for supporting the legitimacy of courts as an adequate institutional setting to adjudicate human rights (hereinafter HRs) within contemporary democratic systems. Lot of work has been produced in the field of individual rights adjudication, and most of the presented for and against judicial review are very well known. My aim is to revisit and defend only one of them under the light provided by the conjunction of: (i) the open structure and expansive scope of contemporary HRs; and (ii) a specific theory of justification about them, that of Rainer Forst and his idea of a moral right to justification as the foundation of HRs. Given that empirical and theoretical framework, I will argue that courts are in a better position than legislatures to assess HRs issues even assuming that all democratic institutions are working in a reasonable manner within the society. The paper is divided in three parts. In the first one I briefly present the twofold framework of my position. one of the premises is represented by the particular open structure and expansive scope that HRs have acquired in the international field, and how that characteristic has led to the use of the proportionality test as a means to determine their limits (both empirical facts that I will take for granted without further discussion). the second premise is Rainer Forsts theory about the foundations of HRs, which provides an interesting argument to support the advantage of adjudicating HRs within an institutional setting where anyone can be sure to be able to discuss her case with real chances of both being heard about the issues at stake and influencing the outcome of the adjudication process. In the second part I describe a limited piece of Jeremy Waldrons core case against judicial review, and then present the reasons he provides to discard one of the outcome-related advantages that is often stated to defend the mechanism of judicial review: the specific moral insight that Courts have and legislatures lack when it comes to assess HRs issues. In the third and last part of the paper I develop my critique of Waldrons position regarding that advantage. Without contesting his four demanding assumptions about how democratic institutions work in an ideal context, I will try to show that the specific moral insight that Courts have as a consequence of how individual cases are

the

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presented before them is a strong advantage over legislatures and can be dispositive in the case for judicial review if we think about it considering the aforementioned empirical and theoretical framework.

2 Empirical and theoretical framework


as a means to determine their limits (empirical framework)

2.1 The open structure and expansive scope of HRs and the proportionality analysis

Individual rights did not appear into scene as political-legal claims implying limitations and obligations upon society and the government until modern times1; formerly, they were something just granted by the Sovereign2. It is mostly since the 18th century that rights documents have referred to them in terms of something inherent to human nature, and because of that as being universal, inalienable and imprescriptible3. However, this was not the only shift regarding HRs along the History. they have also suffered a metamorphosis regarding their formulation. As Kumm (2010) suggests, even though some of the rights contained in international HRs instruments and in domestic constitutions are structured as rules (e.g. No one shall be subjected to torture or inhuman or degrading treatment or punishment)4, contemporary HRs practice clearly shows right provisions which are quite different. Indeed, many of them do not establish rule-like statements but abstract requirements such as a right to freedom of speech.
1 Louis Henkin (1979, p. 3) considers that HRs today trace their authentic origins to seventeenth and eighteenth-century concepts. 2 Magna carta (1215), article 1: We have also granted to all freemen of out kingdom, for us and our heirs forever, all the underwritten liberties, to be had and held by them and their heirs, of us and our heirs forever. According to Henkin (1979, p. 3) this document can be considered as a limitation on monarchy and a seed of constitutionalism. 3 See the virginia declaration of Rights, 1776 (Art. 1: that all men are by nature equally free and independent, and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity); declaration of the Rights of Man and of the citizen, 1789 (Preamble: the Representatives of the French people [] have resolved to set forth, in a solemn declaration, these natural, inalienable and sacred rights of man; Art. II: the end of every political association is the preservation of the natural and imprescriptibly rights of man); Universal declaration of Human Rights, 1948 (Preamble: Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world; Art. 1: All human beings are born free and equal in dignity and rights). 4 charter of Fundamental Rights of the european Union, Article 4.

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that transformation has converted many HRs into standards or principles, rather than rules5. And this fact, in turn, demands to find a method to determine which the limits of those open rights are6. the demarcation of limits is relevant in two different ways: it is useful to find out the scope of valid governmental regulation over rights, while at the same time it allows a reasonable cohabitation within a given society not only among rights and public regulation, but also among individuals (remember the maxim: my rights end where yours begin). No matter how the text of the written instruments helps (or not) to find the limits and determine the scope of HRs, most of contemporary constitutional and HRs courts around the world are employing the proportionality test as a means to reach that goal. this test can be considered as an analytical framework to assess the necessary and sufficient conditions under which a right takes precedence over competing considerations (KUMM, 2010), and its characteristic three-prong structure is very well known7. Although I will not discuss the issue here, it is worth to mention that there is one salient cost derived from employing that test: rights can not be considered as trumps in a dworkinian sense8. So, before going ahead, it should be clear that my discussion about judicial review and the legitimacy of courts to adjudicate HRs issues will take place in a context where HRs are mostly presented as open-structure principles or standards that not necessarily always trump over policy issues, and where courts engage in proportionality analysis as a means to find the limits and the proper scope of those rights.

5 For an account of the different features between rules, standards and principles see cass R. Sunstein (w/y, p. 4-6, 8-11). 6 Among the text of HRs instruments, Kumm (2010) identifies three different approaches to the issue of how to determine their limits: (i) not to say anything at all about them; (ii) define the right in the first part of the article, and describes its limits in the second one; and (iii) substitute the specific limitations by a general default limitation clause. 7 For a comprehensive analysis of the test, how it spread around the world and what is the impact it has on law and politics, see StoNe; MAttHeWS, 2008. 8 dWoRKIN, 1978. See PILdeS, 1998 (arguing that individual rights are tools courts use to evaluate the social meanings and expressive dimension of governmental action). See also KUMM, 2010 (arguing that interest protected as rights and countervailing policy considerations compete on the same level and are subject to the same equation within the proportionality analysis).

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framework)

2.2 The moral right to justification as a plausible foundation of HRs (theoretical

to determine what rights can be considered as HRs and which function this specific kind of rights is supposed to accomplish in legal discourse within contemporary democratic societies, is not an easy task. Among the philosophical discussions about their justification it is possible to find dissimilar perspectives that, by according priority to different aspects of the phenomenon, have led to the development of theories grounded on ethical, political and moral considerations9. For the purpose of this paper I have chosen Rainer Forsts position as theoretical framework. Forst poses a strong critique over both ethical and political theories about HRs and suggests a new line of argument based on a universal moral right to justification. As I will try to show, this premise provides a useful tool to defend the role of courts in HRs adjudication. According to Forst (2010, p. 718-719), the moral basis of HRs is
[] the respect for the human person as an autonomous agent who possesses a right to justification, that is, a right to be recognized as an agent who can demand acceptable reasons for any action that claims to be morally justified and for any social or political structure or law that claims to be binding upon him or her.

In this sense, he suggests that all HRs contain an essential political message, understood as the individual claim to be treated as a political subject who, on the one hand, is free from arbitrary domination and, on the other, has to be recognized as someone with dignity. In his description dignity is understood as a relational term, and its concrete implications can be ascertained only by way of discursive justification (FORST, 2010, p. 734). From that point of view, the main purpose of rights discourse is to claim the right to participate in the political structures that determine which rights and duties those subjected to them have (FoRSt, 2010, p. 717). Under this light, HRs emphasize standards of treatment that no human being could justifiably deny to others and that should be secured in a legitimate social order (the influence of Habermas

9 See FORST, 2010, p. 714. For a sample of ethical justifications and its implications regarding the scope and functions of HRs, see the critics of James Griffins work on the aforementioned Forsts work and also in HOOKER, 2010; WRIGHT, 2010; GARDNER, 2008. Regarding political justifications see RAZ, 2007.

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doctrine in this facet of Forsts analysis is apparent)10. Furthermore, Forst states that underlying all HRs there is a claim to be respected as autonomous agents who have the right not to be subjected to certain actions or institutional norms that cannot be adequately justified to them. This is what the right to justification is all about: it demands that there can be no legitimate social or political order that cannot be adequately justified to its subjects (FORST, 2010, p. 711, 712, 717). the question that follows is how we are supposed to determine which interests can be qualified as HRs. According to Forst (2010, p. 711, 735, 740), the criteria of justification are those of reciprocity and generality within political structures of justification. In this way, HRs turn out to be those rights, which cannot be rejected with reciprocally and generally valid reasons. they express forms of mutual recognition and, in their concrete form, they are results of procedures of discursive construction. Last but not least, it is worth to highlight three points regarding this theory. the first one is that it matches quite well even with that strong version of democracy which accepts that there is no one set of rights entitlements or practical realization of them that will always be superior (HUtcHINSoN, 2008). the second is that it allows reaching a much broader conception about the scope of HRs than the ethical or political justifications, a conception which is open to include therein all kind of liberty interests and not only the fundamental ones11. Finally, according to its author, the theory has three corollaries: (i) all HRs have a common basis in a fundamental right to justification, understood as a basic moral right; (ii) the legal and political function of HRs is to make this right to justification socially effective, both substantively and procedurally; and (iii) this way of explaining HRs is not open to the charge of ethnocentrism usually employed to attack other kind of justifications (FoRSt, 2010, p. 711-712). From the aforementioned corollaries we have to bear in mind especially the second one, particularly to the extent that it refers to procedure. According to Forst (2010, p. 711-712), the procedural aspect of his theory emphasizes the essential condition that no one should be subjected to a set of rights and duties to a political-legal rights regime the determination of which he or she cannot participate in
10 See BARtHoLoMeW (2003), arguing that [] ultimately, the thrust of Habermass discourse-theoretic approach to legitimacy indicates that the determination and legitimation of human rights standards must rest on public justification and deliberation, aimed at producing mutual understanding, under procedural conditions of freedom, political equality and publicity. 11 According to Kumm (2010, p. 151), this is not a corollary of the theoretical foundation of HRs but of the proportionality oriented human and constitutional rights practice.

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as an autonomous agent of justification. I will come back to this assertion because it is relevant for understanding the institutional implications of Forsts approach. In assuming Forsts theory as the theoretical framework for my discussion, I am implying that persons have the basic right to live in a society where they themselves are the social and political agents who determine which rights they can claim and have to recognize. Hence, HRs protect individuals not only from the infliction of social harms which can not be justified, but also (and above that) they protect them against the harm of not being part of the political determination of what counts as such harms (FoRSt, 2010, p. 737). In my view, these premises cast an interesting new light on the issue of judicial adjudication of rights and invite to revisit some of the traditional arguments related to the question of which institutional setting is more appropriate to provide final adjudication on HRs issues, especially if we also consider the open structure and expansive scope of most contemporary HRs provisions.

3 Waldrons (conditional) case against judicial review


to develop my argument, I will focus on Jeremy Waldrons well known article the core of the case Against Judicial Review (2006)12: in this work he states that judicial review of legislation is inappropriate as a mode of final decisionmaking in a free and democratic society. even though he proposes two fronts of attack toward the doctrine, for the purpose of this paper I will discuss only one of them: the allegedly political illegitimacy of judicial review so far as democratic values are concerned. According to Waldron, the problem with that mechanism of decisionmaking is that by privileging majority voting among a small number of unelected and unaccountable judges, it disenfranchises ordinary citizens and brushes aside cherished principles of representation and political equality in the final resolution of issues about rights 13. I will try to show that this is not completely accurate. Waldrons article received a strong response from FALLoN JR. (2008). there, Fallon argues that the best case for judicial review in politically and morally heal-

12 For another interesting approach toward the supposedly illegitimacy of judicial review in democratic societies, see HUtcHINSoN (2008), arguing that [] while a multiplicity of deliberative institutions can play a useful role in a democratic polity, there is no reason at all why judicial review, as presently constituted, should be one of them. Accordingly, an unrelenting commitment to democracy offers a more hard core and convincing case against judicial review. 13 WALdRoN (2006, p. 1353). He had already discussed some of the arguments presented in this article in a former one (see WALdRoN, 1998).

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thy societies does not rest (as has often been asserted) on the idea that courts are more likely than legislatures to make correct decisions about how to define vague rights of the kind commonly included in bills of rights but on the subtly different ground that legislatures and courts should both be enlisted in protecting fundamental rights, and that both should have veto powers over legislation that might reasonably be thought to violate such rights (FALLoN JR, 2008, p. 1695). He concludes that it is reasonable to believe that a constitutional democracy with a well-designed system of judicial review would produce a morally better pattern of outcomes than a political democracy without judicial review, even if Waldrons four conditions hold, under circumstances that plausibly exist (FALLoN JR., 2008, p. 1715). My approach toward the issue, however, is not the same. In his work, Fallon concedes (at the outset and for the sake of his argument) that there is no reason to think courts more likely than legislatures to determine unerringly what rights people actually have (FALLoN JR., 2008, p. 1696, 1702). even though he acknowledges that courts have institutional advantages in resolving disputed rights questions, he sustains that so many of the arguments presented in favor of courts as a better institutional setting to determine whether legislation violates individual rights have a troubingly elitist cast (FALLoN JR., 2008, 1697). In the same line, Hutchinson (2008) refers to the judiciary aristocracy as a kind of elite power that should be distrusted within a democracy. Fallons case for judicial review is grounded on the premise that it works as a means of minimizing the number of cases in which underenforcement occurs (FALLoN JR, 2008, p. 1700, 1704-1715). In my opinion, as I will try to show, there is at least one reason to consider that courts are in a better position than legislatures to achieve better decisions about HRs issues if we assume the theoretical background already mentioned in this work: a moral right to justification as the basis of every HR. Quoting Fallon once again in order to explain my position:
For me to believe that reasonable disagreement about rights is possible, while continuing to believe in a nonskeptical way that people nevertheless possess particular rights, I have to believe that I have identified the pertinent moral truth in a relatively, even if not perfectly, epistemically reliable way. (FALLoN JR., 2008, p. 1703)

In my view, Forsts theory can be considered as an epistemically reliable way to identify the scope and limits of HRs. And when it comes to assess the moral right

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to justification in a given situation regarding certain HRs claim, I think that the institutional advantages mentioned by Fallon come into play to tip the scale in favor of courts as a matter of principle, and not only when general legislation violates individual rights (as Fallon argues, see FALLoN JR., 2008, p. 45). to be honest, when I started my research I expected a more radical attack against the doctrine of judicial review. Well, to state my point better, a more general one. I say that because the attack is radical indeed, but, as Waldron acknowledges from the very beginning of his essay, it is based on a series of assumptions regarding how the democratic institutions function in the society where the mechanism is supposed to be employed, and also regarding certain attitudes of the individuals and public officers who work within that institutions. As a consequence, his argument is a conditional one and he concedes that judicial review might be deemed appropriate as an anomalous provision to deal with special pathologies (i.e. with situations where any of the conditions is absent) (WALdRoN, 2006)14. the four assumptions underlying Waldrons arguments are the following: (1) democratic institutions in reasonably good working order, including a representative legislature elected on the basis of universal adult suffrage15; (2) a set of judicial institutions, again in reasonably good order, set up on a nonrepresentative basis to hear individual lawsuits, settle disputes, and uphold the rule of law; (3) a commitment on the part of most members of the society and most of its officials to the

14 In fact, he himself dedicates a substantial part of his article to discuss those pathological situations (which he calls non-core cases). Waldron recognizes that his four assumptions are quite demanding and that for many people the case for judicial review rests on the refusal to accept them: Judicial review is in part a response to perceived failures of democratic institutions, or it is in part a response to the fact that many people do not take rights sufficiently seriously (so they need a court to do it for them). In sum, supporters of the practice will say we need judicial review of legislation in the real world, not the ideal world defined by my assumptions. (WALDRON, 2006, p. 1401) 15 Waldron (2006, p. 1346) says that [t]his legislature is a large deliberative body, accustomed to dealing with difficult issues, including important issues of justice and social policy. The legislators deliberate and vote on public issues, and the procedures for lawmaking are elaborate and responsible, and incorporate various safeguards, such as bicameralism, robust committee scrutiny, and multiple levels of consideration, debate, and voting. I assume that these processes connect both formally (through public hearings and consultation procedures) and informally with wider debates in the society. Members of the legislature think of themselves as representatives, in a variety of ways, sometimes making the interests and opinions of their constituents key to their participation, sometimes thinking more in terms of virtual representation of interests and opinions throughout the society as a whole. I assume too that there are political parties, and that legislators party affiliations are key to their taking a view that ranges more broadly than the interests and opinions of their immediate constituents.

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idea of individual and minority rights16; and (4) persisting, substantial, and good faith disagreement about rights (i.e., about what the commitment to rights actually amounts to and what its implications are) among the members of the society who are committed to the idea of rights (WALdRoN, 2006, p. 1360)17. Taking these conditions as background, Waldron first discusses the argument grounded on the lack of predictability, on the part of legislators, regarding the issues of rights that might arise from the application of certain statute to a concrete situation. That flaw of the legislature could lead to consider as adequate a mechanism like judicial review, to the extent that it allows citizens to bring these issues to everyones attention as they arise. However, he rejects this argument because it would only apply to what he calls weak judicial review and not to a strong form of the practice in which the abstract question of right that has been identified is settled in the way that a court deems appropriate (WALdRoN, 2006, p. 1.370)18. Afterwards, he discusses the argument which considers the role of courts in this field as a sort of mechanism for correcting legislative mistakes. According to this position, it is generally stated that the legislatures decisions should be respected, unless they violate rights19. However, Waldron argues that this approach to the issue is erroneous if we face it bearing in mind his fourth assumption (that the members
16 I assume that there is a strong commitment on the part of most members of the society we are contemplating to the idea of individual and minority rights. Although they believe in the pursuit of the general good under some broad utilitarian conception, and although they believe in majority rule as a rough general principle for politics, they accept that individuals have certain interests and are entitled to certain liberties that should not be denied simply because it would be more convenient for most people to deny them. they believe that minorities are entitled to a degree of support, recognition, and insulation that is not necessarily guaranteed by their numbers or by their political weight. (WALdRoN, 2006, p. 1364) 17 According to Fallon Jr. (2008, p. 1702), the fourth assumption would be the more relevant: If people reasonably disagree about rights, we might interpret Waldron as arguing, then we must explain not only how they disagree, but also how it is reasonable for them to disagree; and if disagreement is reasonable because no epistemically reliable method of identifying rights exists, as he may seem to suggest, then it is impossible to say that one decisionmaker is more likely than another to decide correctly. 18 But see ALLAN, w/y, p. 521-524, arguing that there is no difference between strong and weak judicial review. 19 See LITTLE, w/y, p. 89, citing, as many other authors in this field, the influence of James Thayer who suggested that federal courts grant the utmost respect to other branches of government and invalidate statutes on constitutional grounds only when congress has not merely made a mistake, but ha[s] made a very clear one,--so clear that it is not open to rational question. See also SMItH, w/y, p. 379-387.

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of society disagree about rights). If people disagree about rights, they will also disagree about whether a given legislative proposal violates rights. therefore, so goes the argument, there will always be disagreement in order to determine whether there is a legislative mistake or not. Within the framework he proposes, the relevant point is to find a way, a procedure of decisionmaking, for settling that disagreement. And this path (always according to Waldron) requires a shared theory of legitimacy about the decision-procedure itself (WALdRoN, 2006, p. 1.371-1.372). conceding that no solution will be perfect, Waldron (2006, p. 1.375) states that there are two kinds of grounds to be considered in order to design or to evaluate a decision-procedure for settling disagreements about rights: outcome-related and process-related reasons. the latter are reasons for insisting that some person make, or participate in making, a given decision that stands independently of considerations about the appropriate outcome (the most familiar of them being, in politics, those based on political equality and the right to vote). the outcome-related reasons, in turn, are reasons for designing the decision-procedure in a way that will ensure the appropriate outcome (i.e, a good, just or right decision) (WALdRoN, 2006, p. 1.375). He argues that the process-related reasons operate to discredit judicial review but leave safe and sound the legislative decisionmaking process; and that the outcome-related reasons do not establish anything like a clear case for judicial review. therefore, in Waldrons opinion, the core of the case against judicial review is that the legislative branch wins the discussion on both fields and, as a result, it should be considered the legitimate forum to deal with rights issues in a democratic society (WALdRoN, 2006, p. 1375-1376). Leaving aside process related-reasons (I will not discuss any of them), what are Waldrons general bases to discard outcome-related reasons as a plausible ground to justify judicial review? to begin with, he says that not only legislatures but judges as well are subject to political pressures that result in neglect of rights. Besides, he argues that it is false that the structures of democratic participation blindly empower the majority without consideration to the independent importance of securing appropriate outcomes. Moreover, the outcome-related reasons, so goes his discourse, tend to be supported by an unrealistic picture of what judicial decisionmaking is like20. Within this background, Waldrons scrutinizes three outcome-related advantages

20 He specifically sustains that this picture pay no attention to the influence of the political pressures already mentioned, to the judges political agendas and to ideologically motivated clerks which interfere with what could be seen as a meaningful collegial deliberation (WALdRoN, 2006, p. 1.377-1.379).

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that are often claimed by the defenders of judicial review to be inherent to courts and, at the same time, to be absent -or at least diminished in legislatures. I will present a critique of his position regarding one of those arguments, the one that I consider the most relevant to be adopted in a case for judicial review if we assume the moral right to justification as the foundation of HRs. due to the restrictions imposed to the length of this paper, I will not address two other outcome-related reasons discussed by Waldron. one argument is labeled as orientation to the text of a Bill of Rights (courts analysis of rights issues is oriented toward the text of the bill of rights, which has been adopted by the people to protect individual and minority rights). Although the written formulation can help disputants to focus on the abstract right-issue at stake, Waldron argues that this is a problem rather than an advantage. First of all, because the written formulation of rights tends to encourage a certain rigid textual formalism in their interpretation. Secondly, because judges have a propensity to be distracted in their arguments about rights by side arguments about how a text like the Bill of Rights is best approached by judges. thirdly, he thinks that the general and abstract wording in which rights are formulated in the Bill of Rights seems to be precisely because of that- the wrong source to focus clear-headed, responsible, and good faith explorations of rights-disagreements. Finally, the text of the Bill of Rights can distort judicial reasoning not only by what it includes but also by what it omits because, always according to Waldron, a dges understand (and deal with) those that are included (WALdRoN, 2006, p. 13801382). the other argument is labeled as Stating Reasons (the one related to the fact that reasoning and reason-giving play a prominent role in judicial deliberation, while this is not what happens in the legislative process). He rejects the argument on the ground that it presents a false contrast. In his opinion legislators give reasons for their votes just as judges do. those reasons are given in the debate and published in the congressional record. the real difference, so goes his argument, is that lawyers are more trained to study the reasons given in judicial cases rather than those given in the legislative process. From another point of view, he also discards the argument to the extent that it can be linked to the quality of the given reasons. In relation to that point, he presents a strong critique based on how judges interpretation is too oriented toward the Bill of Rights and how they spend too much time discussing precedents and trying to show analogies and disanalogies between them and the actual case at hand. this methodology, Waldron states, leads

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judges to push the issue at stake to the margins of the discussion, to dedicate to it just a paragraph or two of the twenty pages or more devoted to an opinion, and to seldom address it directly. Legislators, in contrast, tend at least to go directly to the heart of the matter (WALdRoN, 2006, p. 1382-1386).

cation: one decisive outcome-related reason that can make a case for judicial review

4 The legitimacy of Courts as an appropriate institutional setting for final HRs adjudi-

The argument in favor of Courts and judicial review that I want to discuss finds support in the fact that issues of rights are presented to courts in the context of specific cases. This particular way in which the cases are presented before Courts is supposed to give judges a better position than legislatures for moral insight. However, Waldron rejects the argument considering it mostly a myth (maybe that is why he dedicates to it only three paragraphs of his essay). He justifies that strong assertion in different grounds. First, he argues that legislatures are able to deal with individual cases because they come into the legislative discussion through lobbying, in hearings, and in debate. Second, he states that when cases reach high appellate levels within the judicial structure the discussion turn to be around abstract issues of the rights in dispute without regard to the original flesh-and-blood right-holders. Besides, he says that plaintiffs are selected by advocacy groups precisely in order to embody the abstract characteristics that the groups want to emphasize as part of a general public policy argument. Hence, according to Waldron legislatures: (i) do have specific moral insight about rights; and (ii) are in a better position than courts to assess the significance of the individual cases in relation to the whole society when the time of adjudication comes (WALdRoN, 2006, p. 1.379-1.380). Some different but related arguments can be presented to contest Waldrons objections and to defend the legitimacy of courts to deal with HRs issues within a democratic system on the ground of their particular moral insight about those issues.

4.1 The oblivion of litigants flesh and blood


the fact that cases tend to turn into an abstract discussion about the meaning, scope and limits of certain HRs when they reach the highest instances of the judicial structure, does not mean that courts necessarily lose their different (because specific) moral insight of the questions at hand. even assuming that they can forget the

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flesh and blood of the parties, an assertion that can certainly be discussed, a fact remains: the general issues will always be framed and influenced by the facts of the specific case at hand. The situation created by specific claims regarding particular controversies allows the system to test rights in the real life against other rights and public policies. Absent that specific moral insight, it would be really difficult to define with reasonable determinacy the scope and limits of HRs. If we take into account the open structure and expansive scope of contemporary instruments in this arena, that definition appears to be relevant in order to allow individuals to take informed and responsible decisions about their lives in situations where their rights might be at stake21. that concretization of HRs within courts takes place in an evolutionary process which provides, over time, the possibility of improving the equilibrium between different rights in tension by taking into account the evolution of the society where that tension arises and the specificities that every single case (almost always different from the other) presents. Legislatures seldom revisit the same statute every time a new individual challenge arises or a particular sociological phenomenon develops, what means that they might not be able to provide individuals with a better setting where to find justification about how and why their rights are being affected by governmental action every time they demand that justification. Courts, in turn, must discuss and adjudicate the cases presented before them, and that functional duty has led to the development of not only specific but also deeper moral insight about rights (the kind of expertise that Besson considers as one of the five relevant criteria for HRs institutional design)22. I said that HRs jurisprudence develops through an evolutionary process. Judges do not start over again each time a conflict about rights appears before them. They rely on precedents, a fundamental constitutional doctrine (whether the constitution is written or not), history, tradition and scholarly works23. even more important is the
21 this is a claim which is present in almost every theory about the Rule of Law, a claim for clarity. See RAZ, 1979, p. 214, arguing that an ambiguous, vague, obscure, or imprecise law is likely to mislead or confuse at least some of those who desire to be guided by it. 22 See BeSSoN, 2006, p. 323-342, arguing that [] only an institution which can place human rights at the core of its internal and external governance can be deemed a human rights institution. See also SWeet, MAtHeWS, 2008, p. 91, arguing that It is a core function of constitutional and supreme courts to supervise the work of the legislature and the executive regarding the protection and enhancing of rights. 23 A very brief but helpful enumeration of sources of constitutional law when it comes to identify fundamental rights in the US courts can be seen in ABeRNAtHY, w/y, p. 417-421.

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fact that they can count on the first-hand testimony and arguments of the individuals involved in the actual dispute (both from the one whose rights have been violated, and from the agent responsible for the violation). this last source of information is lacking within legislatures. therefore, their moral insight about HRs issues will never be as complete and accurate as the one of a court24. It can be argued that, even if what I have argued is true, courts lack something that Legislatures have. Something that should level the equation between both institutional settings when it comes to discuss their legitimacy to adjudicate HRs issues. It can be said that courts lack political and popular input, which could be considered as an essential component of decisions concerning rights in Waldrons world of disagreement about them (remember his fourth assumption). In my view this is not true. to assume that courts lack political and popular input and, so, a general insight about the issue at hand especially during these hectic times of global internet and mass media communication would be to forget that judges are human beings and part of the society in which they perform their job. It can not be ignored that courts as institutions and judges as individuals and members of those institutions are not blind (nor immune) to political signals, civil manifestations, and partisan pressures. All of those political factors are introduced in the daily function of courts not only by institutionalized social voices (like political parties or labor unions), but also by informal and influential groups of power with interests at stake in the results of that kind of controversies25. Although it is not very common, from time to time courts expressly recognized this political element of the judicial function and plainly discuss it in their opinions26. Whether it plays a
24 In this same line of reasoning, see FALLoN JR., 2008, p. 1693-1710, arguing that courts are likely to have a distinctive perspective, involving both a focus on particular facts and a sensitivity to historical understandings of the scope of certain rights, that would heighten their sensitivity to some actual or reasonably arguable violations that legislatures would fail to apprehend. 25 See RoSeN, 2008, explaining the political mobilization and the lobby of the chamber of commerce over the Supreme court. of course, we can not forget to mention the political ideology of every judge. See tAHA, w/y, p. 1007-1035, arguing that the political orientation of federal district judges affects which cases are filed in federal courts and that the effect of judges political orientations on case filings may even be stronger than this Articles analyses suggest. Regarding circuit Judges, see SUNSteIN, 2004, arguing on the base of empirical data that the political party of the appointing President is a fairly good predictor of how individual judges will vote. 26 Waldron himself presents a sample of that political insight when he cites Scalias dissenting opinion in Planned Parenthood of Se. Pa. v. casey, 505 U.S. 833. the Justice acknowledges being really upset, true; but his (written) irritation can be seen without effort as an example of the influence that political movements effectively do generate over judges.

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decisive role at the end of the day, only judges know. But it is present there, whether we like it or not, whether we discuss it or not. Maybe the way in which courts received a political insight about HRs issues is not as direct as the way in which legislatures do. Maybe courts are not allowed to justify their opinions by expressly using it. However, once again, a fact remains: they do receive it and, according to some scholars, it does play a strong role when they decide27. It is worth to remember here the empirical background I described in Part II of this work: nowadays most courts employ the proportionality analysis as a framework for the discussions about HRs. this is not a trivial fact because, according to Kumm, that test has heightened the legitimacy of courts in the arena of HRs adjudication. Why does that happen? Because the open structure and expansive scope of HRs has derived in a world where practically all legislation can in principle be challenged on human rights grounds, leading to an assessment of its justification in terms of public reasons as prescribed by the proportionality test (KUMM, 2010, P. 164). to deny that judges have political and popular input would be almost the same as to deny that they can deal with public reasoning (which is the heart of the mechanism) in a reasonable manner. I insist: judges are part of the society where they perform their job. the fact that they are, at the same time, part of an independent and impartial institutional setting does not entail that they are aliens in terms of political and popular insight. Another counterargument to my position which I want to consider, different but related with the one I have just discussed, is that of eisgruberg (cited by Waldron in support of his position). In his view, the problem with the Courts specific insight is that the issues come to them in a way that is incomplete. So, while recognizing the existence of a different moral insight between courts and legislatures, he argues that this sort of specific insight is a problem rather than a virtue. According to Eisgruberg, the discussion about rights within a court of justice is only partial due to the procedural context in which it is developed. In his opinion, the existence of the standing to sue doctrine, the limited hearings and the rules about the admissibility of evidence lead judges to take decisions without the presence of all the parties that will be affected by that decision, and without the necessary information to gain a comprehensive perspective on the fairness of an entire social, political, or economic system (WALdRoN, 2006). I think this is not completely true. First of all, regarding the presence of all the par27 See JooNdePH, w/y, p. 377-378, arguing that judges occasionally respond to political pressure from external power centers, such as Congress, the President, state governments, and the general public. And at bottom, courts always act within a framework of judicial authority created by external power holders and thus generally in furtherance of the political objectives of others.

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ties that will be affected by the decision it should be noted that this is not a real picture of what happens even within legislatures. the legislative process is more open than the judicial one, I can admit that. But this fact in no way means that all the parties that will be affected by legislative decisions are going to be present and to take part in the discussion therein, at least in the meaningful manner that the moral right to justification demands28. Second, the relevant individuals that will be affected by the decision are able to take part in the discussion when it comes to deal with HRs in a court of Justice. When those individuals are not vested with the right to be a formal litigant in the proceedings because they lack sufficient direct interest in the issue (standing to sue doctrine)29, they have other channels to participate, like the possibility of presenting an amicus curiae briefs30. Maybe we can not assure that all the parties will be present in the court, but as I have already said the same happens within legislatures. In that case, if the presence will be incomplete in both institutional settings, why should we prefer Courts? A relevant reason, apart from the specific moral insight, is that within a court those who are going to be affected have more chances to be heard and to influence the outcome of the procedure31. I will further discuss this point. Below, for now it is enough to say that this difference really matters a lot if individuals want to receive a real justification about the interference on their rights. So far, I have faced eisgrubergs argument regarding the supposedly incomplete participation as a defining character (a flaw) of the judicial proceedings. Let us now turn to the issue of the supposed lack of sufficient information. For the purpose of
28 I feel this disclaimer necessary because the automatic answer to my statement will be that all of us are present within the legislature through our representatives, elected by our equal right to vote. Regarding this point, I share with Kumm that in contemporary complex democratic societies is utterly implausible to claim that through ordinary legislative procedures the people themselves decide political questions, whereas decision of duly appointed judges are cast as platonic guardians imposing their will externally to the people; and I also share his argument about the little, if any, influence we can produce as individuals by participating in the political process only through our equal right to vote (KUMM, 2010, p. 167). But see also HUtcHINSoN, 2008, p. 34, arguing that In a society that takes democracy seriously, there is no privileged place for judicial proconsuls or their scholarly cohorts citizens can govern best when they govern themselves. 29 For a general overview of the functions that the doctrine is supposed to perform within contemporary legal practice see eLLIot, w/y, p. 459. 30 What is more, the trend particularly in appellate courts, is to accept and even invite the participation of amici curiae with partisan interests (4 Am. Jur. 2d Amicus curiae 6). 31 See KUMM, 2010, p. 167-168, arguing that the most likely way that an individual citizen is ever going to change the outcomes of a national political process as a citizen (rather than an office-holder), is by going to court and claiming that his rights have been violated by public authorities.

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this paper, what matters is whether legislatures count on with more information than courts to take decisions. But the question would be incomplete if we forget the particular context where it should be answered. It is plausible to say that, in general terms and because of the availability of more open proceedings, legislatures have access to more information than courts do in order to decide. Nonetheless, I think that in the particular context of HRs adjudication courts can get, most of the times, not only equal but even better information than legislatures. A short disclaimer before going on: it is somewhat difficult to be certain about what exactly does eisgruberg means by necessary information to gain a comprehensive perspective on the fairness of an entire social, political, or economic system. For the sake of the argument, let us assume that he refers to information regarding the scope and limits of the particular right in discussion, on the one hand; and information about the holistic consequences of adjudicating that right in certain manner, on the other. In my view, it is hard to deny that both kinds of information have a strong presence within the judicial proceedings. In relevant HRs cases, the presentation of amici curiae briefs from different institutions and on behalf of both parties usually provides a lot of input of this type. this information comes from different perspectives, and it is not only about the actual case but -very often also about the economic impact, the collateral effects and even the political implications and consequences of the judgment to be rendered32. Furthermore, amici curiae briefs and of course the pleadings of the parties involved in the dispute are not the only sources of relevant information available to Courts. They can count on a very specific tool (which is not present in legislative proceedings) when it is necessary to handle technical and scientific information about the issue in dispute: expert witnesses, whose testimonys quality is strongly

32 See Gregory A. Caldeira and John R. Wright Organized Interests and Agenda-Setting in the U.S. Supreme court, the American Political Science Review, vol. 82, No. 4, (dec., 1988), pp. 1109-1127, available at http://epstein.law.northwestern.edu/research/supctLawcaldeira.pdf (arguing that amicus curiae participation by organized interests provides information, or signals --otherwise largely unavailable-- about the political, social, and economic significance of cases); James F. Spriggs and Paul J. Wahlbeck Amicus curiae and the Role of Information at the Supreme court, Political Research Quarterly, Vol. 50, No. 2. (Jun., 1997), pp. 365-386, available at http://www.uwyo.edu/POLS/ courses/3100/11.1.pdf (arguing that amici curiae briefs are important because they reduce information problems at the court by helping the justices anticipate the impact of their opinions); comment, the Amicus curiae, 55 Nw. U. L. Rev. 469, 480 (1960) (showing that governmental amicus curiae are particularly useful to courts because they can provide a lot of useful political, economic and social information available in public sources).

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controlled by the interested parties through the cross examination process33. the relevance of this tool in order to achieve a comprehensive perspective of any HR issue is apparent, Brown v. Board of education being one of the best examples34. to sum up the discussion of Waldron and eisgrubergs arguments: if the particular moral insight is absent within legislatures (at least with the degree of specificity that it presents in a court), if the individuals and groups with interests at stake in the dispute are able to participate in the judicial proceedings and to do it with a reasonable chance of influencing the outcome, and if Courts have access to huge amounts of information through expert witnesses and amici curiae briefs (not only about the specific issue at hand, but also about the eventual consequences of its adjudication), I am far from sure that we can still sustain as Waldron does- that legislatures are in a better position than courts when it comes to adjudicate HRs issues.

5 Advocacy groups strategies (falling outside the core case?)


Let me now turn to the second aspect I want to discuss about Waldrons position regarding this particular point. It has to do with his reference to advocacy groups that chose and litigate cases with the aim of improving and developing the law in certain areas (very often, I would add, areas where the law affects disadvantaged groups of people). Remember that, according to Waldron, the fact that these groups chose exemplary cases in order to discuss not only concrete but also abstract issues about certain HRs shows that courts are not in a better position than legislatures to reason about rights. As a first step, I recall here what I have already said regarding the fact that the discussion about general aspects of certain HR within a judicial proceeding does not imply the lost of the specific insight which follows from the way in which the disputes are presented before the courts. Hence, the way how these organizations do their job does not imply a negative consequence regarding this advantage of courts over legislatures. Second, I would emphasize that this phenomenon is not fortuitous. I mean that the existence of this kind of groups is a result of certain political and social circums33 Federal Rules of evidence 701-706. 34 Remember that the finding of the Supreme Court about the harmful effects of segregation in educational institutions was based on the testimony of Kenneth clark, a social psychologist. the closing argument for the plaintiffs contains several references to the expert testimonies (see http://www.crawfordsworld.com/rob/HEG/HEG_Government/HEGSeparate%20But%20Equal/Closingarguments.htm).

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tances. to use a very well known example: can we consider the creation of the NAAcP as a real choice? I think not35. the only choice was when to do it, but at the end of the day it was a necessity imposed by the fact that legislatures did not pay attention to what was happening in the streets, did not hear the lobby, did not recognize the rights of a huge group of people who had been displaced from the political dialogue by laws enacted through the same legislature that was supposed to protect them as members of a democratic society. Waldron might say ok, but this is not a core case because my third assumption is not present here. I would answer: exactly, that is my point. even assuming for a moment that these groups do play some role in the way Waldron suggests (diluting the specific insight of Courts), their existence and the way in which they develop their job is not an argument that can be employed against the legitimacy of courts to adjudicate HRs issues within Waldrons world (because within that ideal world of strong respect for individual and minority rights this kind of groups should not exist).

6 How individual cases come into the legislative process


the third an last argument that I want to present has to do with Waldrons statement regarding how particular cases about rights do provide specific insight to legislatures by entering the discussion through lobby, in hearings and along the debate. conceding that this is what ordinarily happens in the legislative process, there are a couple of issues that Waldron does not consider: the degree of effective attention paid to those individual cases even within a healthy legislature, and the fact that HRs can be violated in almost infinite manners. It is really difficult to know whether the arguments presented by lobbyists are considered in the legislative process in order to take decisions about HRs, as well as to discern the weight given to a testimony in a hearing or to the arguments presented by some legislator along the debate. this is not entirely true within a court, where judges have a functional duty to assess the admissible and relevant evidence (always) and at least some of the arguments presented by the parties in order to adjudicate the dispute36. If we take seriously the moral right to justification as the foundation of HRs, that
35 See http://www.naacp.org/pages/naacp-legal-history. 36 In the US, FRCP 52(a)(1) (the court must find the fact specially and states its conclusions of law separately). See 344 F.2d 747 (stating that The findings of fact and conclusions of law must be sufficient to indicate the bases of the trial judges decision).

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characteristic of courts decisionmaking procedure can be considered as a powerful advantage in order to improve the democratic system to the extent that it assures that the individual insight of the affected person will be considered to reach the decision. The right to justification demands an institutional setting where reasons are not only passively received, but where sufficient attention to them can be assured in every single occasion. Legislatures seem not prepared to provide that guarantee to the same extent that courts do. Although it is true that certain individual cases have triggered some legislation (as Waldron argues), this is not the ordinary situation. And when it is the case, it is frequently because a conflict involving some specific right either has acquired public impact or involves many people in the same situation. In my view, we should not rely on these fortuitous characteristics of the cases as a reason to provide an adequate forum to discuss whether certain state interference over individuals HRs is justified or not. Remember that the moral right to justification allows considering as HRs not only the fundamental human interests that ethical justifications have in mind, but almost any individual interest that people regard as relevant (because part of their personhood). the violation of some of those interests probably will not achieve public impact, but they deserve the same attention as those which will because only in this way we can consider that the individual is being respected as such. Finally, we have to take into account that HRs can be violated in many different ways and that their scope and limits can be attacked and defended on many different grounds. So, once again, if we take seriously the moral right to justification we would agree in that every single situation deserves specific insight and specific treatment in order to respect individuals as such. It would be difficult (not to say impossible) for legislatures to deal with those specificities and to translate them in the wording of a statute, and because of that their adjudication of HRs issues would never be as complete and accurate as that of the courts.

7 Final Remarks
the political participation of individuals in contemporary democracies should not be limited to the right to vote37. When Forst demands the individuals participation in
37 See KUMM, 2010, p. 144, arguing that proportionality based judicial review is not only compatible with liberal democracy, but that it institutionalizes a right to justification that should be regarded as basic an institutional commitment of liberal-democratic constitutionalism as electoral accountability based on an equal right to vote.

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the society as an autonomous agent of justification in order to validate his subjection to a set of rights and duties, we should assume that this participation has to be effective and not only formal. By effective I mean capable of providing feedback to the individual regarding her particular and unique situation, and at the same time capable of influencing the governmental decision (at least to the extent of compelling the government to reanalyze its conduct when the individual is convinced that certain interference is not justified). Therefore, it is apparent that the kind of participation which is deemed to be necessary to legitimize decisions about HRs issues in particular cases hardly (if at all) will be achieved in the legislature through representatives chosen by our equal right to vote. In contrast, courts do provide an adequate institutional setting to enforce and adjudicate HRs. As I tried to show, there is at least one outcome-related reason which can be dispositive in the case for judicial review: the specific moral insight over the issue, something which legislatures lack. this moral insight, in turn, is displayed in a procedural context characterized by the following features: (i) reasonable level of participation by the people that will eventually be affected by the decision; (ii) permeability to political and popular insight; (iii) availability of information regarding both the concrete issue at hand and the eventual systemic consequences of its adjudication; and (iv) functional duty to assess the evidence and at least some of the reasons presented by the parties before deciding. All these characteristics allow courts to reach a particular answer for every single case, thus respecting the moral right to justification and enforcing individuals dignity every time they claim for that. As I have anticipated, my response to Waldrons core case against judicial review is partial and modest. Nevertheless, I think I have presented some plausible arguments to show that the advantage of Courts over legislatures in the field of HRs adjudication, represented by the specific moral insight in hands of the former, is not a myth and can be dispositive to support judicial review in a democratic system.

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8 References
ABeRNAtHY, charles. Law in the United states. Minnesota, thomson-West ed., w/y, p. 417-421. ALLAN, James. the Author doth protest too much, methinks. new Zealands University Law review, W/Y, n. 20, p. 519-524. BARtHoLoMeW, Amy. Human Rights and Post-Imperialism: arguing for a deliberative legitimation of Human Rights. buffalo Human ruights Law review, 2003, n. 9, p. 25-46. BeSSoN, Samantha. the european Union and Human Rights: towards a Post-National Human Rights Institution? Human rigths Law review, 2006, n. 6, p. 323-342. dWoRKIN, Ronald, Taking rights seriously. Harvard University Press, 1978. eLLIot, Heather. the Functions of Standing. stanford Law review, n. 61, p. 459. FALLoN JR., Richard. the core of an Uneasy case for Judicial Review. Harvard Law review, 2008, n. 121, p. 1.672-1.693. FORST, Rainer. The Justification of Human Rights and the Basic Right to Justification: A Reflexive Approach. ethics, 2010, n. 120, p. 711-714. GARDNER, John. Simply in Virtue of Being Human: The Whos and Whys of Human Rights, JeTHsP, 2008, n. 2. HeNKIN, Louis. The rights of Man Today. Stevens ed, 1979. HOOKER, Brad. Griffin on Human Rights, oxford Journal Legal studies, 2010, n. 30, p. 193-211. HUtcHINSoN, Allan c. A Hard core case against judicial review. Harvard Law review, 2008, n. 120, p.57-59. JooNdePH, Bradley W. the many meanings of Politics in judicial decision making. University of Missouri-Kansas city Law review, w/y, n. 77, 347-378. KUMM, Mattias. Internationale Handelsgesellschaft, Nold and the New Human Rights Paradigm. In: MADURO, Miguel; AZOUALI, Loic (Eds.). The Past and Future of eU Law: the classics of eU Law Revisited on the 50th Anniversary of the Rome treaty, Hart Publishing Ltd, 2010.

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Revista Jurdica da Presidncia

Braslia

v. 13 n100

Jul/Set 2011

p. 201 a 226