Proceduralismo e judicial review: critica, difesa, approccio condizionale.

This article examines the tension between judicial review and the procedural conception of democracy, critically analyzing the legitimacy of judges’ power to strike down laws passed by democratically elected representatives. The research initially articulates the procedural critique of judicial review, highlighting how it deprives citizens of the capacity to decide and correct their decisions autonomously through equal participation. Subsequently, it explores the procedural defense of judicial review as an essential tool for protecting democratic structure and the fundamental values that sustain it. The article then proposes a conditional approach that transcends the critique/defense dichotomy by introducing the concepts of “majoritarian non-neutrality” and “majoritarian defeasibility”. On these grounds, it argues that judicial review can find shared procedural legitimacy through the adoption of a qualified majority in constitutional court voting, thereby recognizing both the presumption of constitutionality of democratically approved laws and the necessity of protecting the procedural and axiological foundations of democracy from potential majoritarian drift.

Publication Details

Journal
CINECA IRIS Institutial Research Information System (University of Genoa)
Published
2025-01-01
Primary Topic
Judicial and Constitutional Studies
Type
article
Field-Weighted Citation Impact
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article

Proceduralismo e judicial review: critica, difesa, approccio condizionale.

CINECA IRIS Institutial Research Information System (University of Genoa)
Judicial and Constitutional Studies
article

Proceduralismo e judicial review: critica, difesa, approccio condizionale.

article en

Abstract

This article examines the tension between judicial review and the procedural conception of democracy, critically analyzing the legitimacy of judges’ power to strike down laws passed by democratically elected representatives. The research initially articulates the procedural critique of judicial review, highlighting how it deprives citizens of the capacity to decide and correct their decisions autonomously through equal participation. Subsequently, it explores the procedural defense of judicial review as an essential tool for protecting democratic structure and the fundamental values that sustain it. The article then proposes a conditional approach that transcends the critique/defense dichotomy by introducing the concepts of “majoritarian non-neutrality” and “majoritarian defeasibility”. On these grounds, it argues that judicial review can find shared procedural legitimacy through the adoption of a qualified majority in constitutional court voting, thereby recognizing both the presumption of constitutionality of democratically approved laws and the necessity of protecting the procedural and axiological foundations of democracy from potential majoritarian drift.

CINECA IRIS Institutial Research Information System (University of Genoa)
Peace, Justice and strong institutions
Openalex Percentile: Top 34%
Judicial and Constitutional Studies
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Proceduralismo e judicial review: critica, difesa, approccio condizionale. · CINECA IRIS Institutial Research Information System (University of Genoa) (2025) | TGRS Research Map | TGRS