Конституционные суды и делиберативная демократия
Author refers to the problem of the legitimacy of constitutional review and proposes to solve this problem through deliberative communication. The problem of legitimacy arises from the fact that the legislator has been democratically elected while judges were not. Therefore, court decisions as a result of reviewing the unconstitutional rules, seem to be not legitimate.
To justify the legitimacy of these decisions, Van Hoecke offers the concept of "circular relationship" and "communicative circles". Circular relationship is found in the case when the European judges are controlling national legislators, and also at the level of the relationship between courts within the national court structure. This circular relationship is one of the ways in which a new conception of democratic legitimation of law creation is currently developing, including at the level of international law.
As law is constantly made in and through legal practice, legitimation too is constantly achieved through deliberative communication. The first communicative circle is to be found in a trial, when parties try to convince each other and the court, then the court try to make both parties to accept its decision. Further, if the court decision fails to convince both parties, one of them takes the case to a higher court. So, it is a second communicative circle. If the case will be interesting enough for publishing, the legal community will offer its view on the decision - this is the third communicative circle with a professional interpretive community.
If the discussion of this case will be discussed not only within the legal community, but also by non-legal audience in media, this is a fourth communicative circle involving a public forum. And finally, the fifth communicative circle involves the whole public sphere of that society.
Discussing these processes of deliberative communication, Van Hoecke shows how the public debate is a necessary condition for democracy and, hence, for democratic legitimation.