Diritto Pubblico Comparato ed Europeo

Sommario

1. Premessa: giudici e democrazia. – 2. Il dialogo tra Corti e legislativi in Canada: i punti chiave della questione. – 3. La critica al judicial review in Canada. – 4. La metafora del dialogo nella teoria di Peter W. Hogg e Allison A. Bushell. – 5. Critiche e apprezzamenti alla teoria di Peter W. Hogg e Allison A. Bushell. – 6. Dalla dottrina alla giurisprudenza: il (problematico) utilizzo della metafora del dialogo da parte della Corte suprema. – 7. Conclusioni.

Abstract

The proper scope and legitimacy of judicial review, which has been the central issue in academic constitutional theory in the twentieth century. Although the legitimacy of the basic practice of judicial review has been widely accepted by both political actors and commentators since the early nineteenth century, the scope of that practice has been intermittently politically controversial and intellectually troubling (in the US constitutional case law, Lochner v. New York and Brown v. Board of Education are two excellent examples of the political controversy concerning judicial review). There is substantial disagreement as to how the practice should or could be justified. Consequently, there are substantial disagreements as to when and how the power of judicial review should be exercised. This normative debate, with particular applications to judicial cases and doctrine, largely defines contemporary constitutional theory. Scholars have established a relationship between the court’s “activism” and the problem of judicial review. The problem, generally known as “countermajoritarian difficulty” (see Alexander Bickel, The least dangerous branch), is that in striking down unconstitutional laws – this is the objective of judicial review –, judges contradict the democratic will. So, because of the fact that court’s “activism” – in other words the so-called “law-making powers of judges” (left oriented or right oriented) is inherent (implicit) in judicial review, some scholars argue that judicial review is undemocratic. As a response to the “countermajoritarian difficulty” in 1997 two Canadian scholars (P.W. Hogg and A.A. Bushell, now Thorton) published an article titled The Charter Dialogue Between Courts and Legislatures (Or Perhaps The Charter Of Rights Isn’t Such A Bad Thing After All). From the perspective of the authors, judicial review is best understood as part of a dialogue between the judges and the legislatures. The functional essence of this dialogue is the ability of legislatures to reverse, modify, or avoid judicial nullification through the enactment of alternative statutes. One year after this article became the principal source used by the Supreme Court of Canada to describe Court’s function under the Charter.