Continental Constitutionalism, Systemic Legitimacy, and Judicial Review

Abstract

This article elaborates on the justification and legitimacy of judicial review in continental constitutionalism. After the Second World War, continental constitutionalism shifted from a Kelsenian conception of constitutional courts to a strong model of judicial review whose legitimacy requires maintaining distance both from the U.S. model built around checks and balances and from the model embodied by the New Commonwealth constitutionalism. I suggest that the legitimacy of continental judicial review should not depend on the degree to which it resists the countermajoritarian objection, but rather that it should follow a logic of protective efficacy that takes a systemic perspective. On this basis, I propose coordinating judicial review in terms of a weak form of constitutionalism that I call “cooperative constitutionalism”, whose three main axes are: a democratic culture of justification, a conception of fundamental rights as qualified mandatory goals and a systemic approach to the proportionality test.