5 Legisprudence 1 (2011)

handle is hein.journals/legisp5 and id is 1 raw text is: NEITHER DIALOGUE NOR LAST WORD:
DELIBERATIVE SEPARATION OF POWERS III
Conrado H. Mendes
Abstract
This article is the third and last of a series that tries to understand and reconcile
'theories of last word' and 'theories of dialogue' with respect to the proper place of
constitutional courts within democratic regimes. It claims that there is a
complementarity between both approaches: the design of the separation of powers
needs to decide, contextually, whether elected parliaments or constitutional courts
should bear the burden of the 'provisional' last word upon constitutional meaning; it
should not neglect, however, the fact that institutions inevitably interact and can
challenge each other's decisions over time, a datum that needs to be factored into the
discussion about the legitimacy of judicial review. The article further claims that, if
some sort of interaction between branches is inevitable over time, constitutional
theory should elaborate on which sort is more desirable and legitimate than others.
An interaction inspired by a normative ideal of dialogue and of deliberative
performance, I contend, increases the epistemic capacity of the separation of powers.
Keywords
Democracy and constitutionalism; judicial review of legislation; constitutional
courts; separation of powers; dialogue
A. INTRODUCTION
'Deliberative separation of powers' sounds like an exemplary oxymoron. Such blend
of apparently irreconcilable political ingredients may not be, indeed, a felicitous
phrasal construction when read against the history of political concepts. This first
Conrado ITUbner Mendes has a Ph.D. in legal philosophy at the University of Edinburgh, a Ph.D.
and a M.Phil. in political science at the University of Sao Paulo, and has been Hauser Research
Scholar at the New York University School of Law (2009-2010). 1 would like to thank Neil
MacCormick, Neil Walker. Zenon Bankowski, Claudio Michelon. Mattias Kumm. Alvaro de Vita,
Matthew Taylor, Cicero de Araujo, Marcos Verissimo, Oscar Vilhena and Virgilio Afonso da Silva
for their helpful comments.

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