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SANT'ANNA LEGAL STUDIES
STALS RESEARCH PAPER 3/2011

Leonardo Pierdominici

Constitutional adjudication and the 'dimensions' of judicial activism. Legal and institutional heuristics

Sant'Anna School of Advanced Studies
Department of Law
http://stals.sssup.it
ISSN: 1974-5656

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Electronic copy available at: http://ssrn.com/abstract=1889042

Constitutional adjudication and the 'dimensions' of judicial activism. Legal and institutional heuristics
Leonardo Pierdominici
Abstract
The dominant approach to constitutional law, and even more so to constitutional theory, has historically been judicial review-centered. Constitutional scholarship has often seemed “strong on positions and weak on analysis”, based on “foundationalist”/organic theories of judicial review, trying to justify or to reject the practice in toto and dictating its parameters. Behind such strong positions, and behind the search for “first-best principles” of legitimacy, one can see a series of latent and intractable tensions, inherent in traditional constitutional theories of interpretation and adjudication: these tensions are the consequences of the unavoidably creative function of the judicial role. A pragmatic, second-best inquiry must probe the degree of such creativity, focusing on the questions of mode, limits, level of acceptability of law-making through the courts, and issues of institutional performance and systemic effects of adjudication. In light of all this, the paper will provide a taxonomy of the different types of criticisms that constitutional theory has raised regarding what we can broadly describe as the democratic legitimacy concerns of constitutional review. These are often lumped together under the concept of 'judicial activism', ranging from the very existence of judicial review, the different forms of conceptualizing the proper role of judicial interventions and the different modalities of constitutional adjudication.

The paper will deal both with American and Continental historical constitutional theories as well as the most recent trends of Comparative Institutional Analysis. T he objective is to sketch a useful framework and some heuristic devices for the study of courts, different kinds of constitutional adjudication, and the spaces of discretion which are thereby implied.

Key-words
Judicial review, Constitutional theory, Judicial activism, Comparative Institutional Analysis

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Electronic copy available at: http://ssrn.com/abstract=1889042

Constitutional adjudication and the 'dimensions' of judicial activism. Legal and institutional heuristics.

Leonardo Pierdominici*

The dominant approach to constitutional law, and even more so to constitutional theory, is undoubtedly judicial review-centered. The debates on the role of courts in constitutional legal orders, on the related process of adjudication, and on the proper balance of power between the judiciary and the political process have filled libraries for centuries, with an overwhelming body of literature on almost every imaginable aspect of the so-called domain of 'judicial policymaking'. This is true for the United States as well as other legal orders, including continental European orders, despite deep-rooted cultural differences. The general attempt is to construct - directly or indirectly – organic theories of judicial review, trying to justify it or to reject it, and dictating its parameters. At the level of principle, the eternal question of the legitimacy of the constitutional jurisdiction appears to be of fundamental importance in all modern democratic legal orders, establishing a structural link between the theory of the constitution, on the one hand, and the theory of constitutional interpretation, on the other. This has historically drawn a sort of osmotic continuum of the characterizing factors and called for systemic criteria in the study of them. 1 But it has also led to a kind of 'foundationalist' structure of constitutional...
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