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38 Revus: J. Const. Theory & Phil. Law 7 (2019)

handle is hein.journals/revus38 and id is 1 raw text is: SYMPOSIUM Where our protection lies: Separation of powers and constitutional review A discussion with Dimitrios Kyritsis Guest-edited by Donald Bello Hutt It is hard to say something new and relevant about the justification of judicial review of legislation, or lack thereof. The amount of literature on the topic is nothing short of overwhelming. And yet, in his Where Our Protection Lies: Separation of Powers and Constitutional Revi- ew (OUP, 2017), Dimitrios Kyritsis does precisely that. The book is an elegant account of the institution of constitutional review that impro- ves the literature by effectively relying on central principles of political morality and institutional design. One promising way of achieving the legitimacy of a system of gover- nment, Kyritsis avows, hinges on realising the values underpinning the principle of separation of powers. The realisation, in turn, depends on striking a middle point between those who imagine institutional dialogue as fundamentally driven by representative institutions, and those who look at courts as the ideal embodiment of constitutiona- lism. Against the first group, Kyritsis argues that judicial review is a morally legitimate institutional arrangement because it can effectively control the risks in which legislatures may incur. Against the second, he claims that the protection of fundamental rights is not the exclusive province of the courts, but the responsibility of both the legislature and the judiciary. This summary barely scratches the surface of the arguments advanced in the book, and it may suggest that the overall project is to seek a compromise between two opposing views. This would be a mistake. Kyritsis' is an original and powerful idea of institutional dialogue un- derstood as a joint project of government that is inspired and justified by a well-grounded moralised constitutional theory. While concerned with the demands of justice imposed on institutions, his theory is also strongly committed to preserving the value of political legitimacy. That balance is no compromise, but rather a principled goal that Kyrit- sis manages to achieve. Constitutional theorists are strongly advised to read this book and to engage with its arguments.

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