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A Matter of Pedigree: Legal Interpretation and Judicial Review

Published online by Cambridge University Press:  20 November 2025

Sebastian Reyes Molina Open the ORCID record for Sebastian Reyes Molina [Opens in a new window]
Sebastian Reyes Molina*
Affiliation:
Maastricht University, Netherlands
*
Email: sebastian.reyesmolina@maastrichtuniversity.nl

Abstract

Countermajoritarianism is the view that judicial review is antidemocratic because it allows an unelected and unaccountable minority (judges) to overrule laws that represent the will of the majority. The core claim of this view stresses the conflict between agents with a democratic and a non-democratic pedigree. I call this conflict the ‘pedigree problem’ of judicial review. Against countermajoritarianism, I argue that the pedigree problem does not affect some forms of judicial review: specifically, the judicial review that declares a norm inapplicable in a specific case due to the unconstitutional effects that this application brings about. Countermajoritarianism fails when objecting to the inapplicability model because the agents involved in judicial review—the constitutional court and the judge—have the same pedigree, i.e., non-democratic. In order to justify this claim, I draw insights from legal interpretation literature, specifically, the distinction between ‘norm formulation’ and ‘norm’.

Keywords

legal philosophyjudicial reviewlegal interpretationconstitutional theory

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Type
Research Article
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Canadian Journal of Law & Jurisprudence , First View , pp. 1 - 15
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Creative Common License - CCCreative Common License - BY
This is an Open Access article, distributed under the terms of the Creative Commons Attribution licence (https://creativecommons.org/licenses/by/4.0/), which permits unrestricted re-use, distribution and reproduction, provided the original article is properly cited.
Copyright
© The Author(s), 2025. Published by Cambridge University Press on behalf of Faculty of Law, Western University

1. Introduction

‘Countermajoritarianism’ is the view that judicial review is antidemocratic because it allows an unelected and unaccountable minority—judges—to overrule laws that represent the will of the majority. The core claim of this view stresses the clash between agents with democratic and undemocratic pedigree.Footnote 1 I call this clash the ‘pedigree problem’ of judicial review.

The countermajoritarian claim has a descriptive and a normative dimension. The descriptive dimension holds that judicial review undermines democracy. The pedigree problem is an explanatory model of the interaction between judicial review powers and democratic legislation. The normative dimension prescribes that democratic systems should not have judicial review mechanisms; the pedigree problem here is a justification for preserving democratic integrity in legislation and thus rejecting providing courts with judicial review powers. In this paper, I am interested in the first aspect—the descriptive dimension of contermajoritarianism.

Against countermajoritarianism, I argue that the pedigree problem does not affect some forms of judicial review: specifically, the judicial review that declares a norm inapplicable in a particular case due to the unconstitutional effects that this application brings about. Thus, the scope of my argument is restricted to this kind of judicial review. My claim is that countermajoritarianism fails when objecting to the inapplicability model because the agents involved in judicial review—the constitutional court and the judge—have the same pedigree, i.e., non-democratic.

To advance my argument, I draw insights from the distinction between ‘norm formulation’ and ‘norm’ widely shared in legal interpretation.Footnote 2 Roughly put, a ‘norm formulation’ refers to the so-called ‘black-letter’ law, and a ‘norm’ is the interpretation ascribed to the norm formulation. Although the norm formulation/norm distinction might sound familiar to most legal philosophers,Footnote 3 its insights have not been used in exploring topics in other areas of the law, such as judicial review.Footnote 4 I argue that this distinction is relevant to identify the scope and strength of countermajoritarianism.Footnote 5

The success of my argument depends on one background condition: namely, that the judges are not democratically elected.Footnote 6

The structure of the paper is as follows: In section 2, I address the countermajoritarianist’s claim and identify the pedigree problem. In section 3, I propose a solution to defuse the pedigree problem. In section 4, I advance and reply to predictable objections to the arguments deployed in the previous section. I end with conclusions in section 5.

2. Countermajoritarianism

The debate about who ought to have ‘the last word’ on constitutional review is pervasive in constitutional law theory.Footnote 7 Arguments are deployed for or against the justification of judicial review—that is, the competence of courts to enforce and protect rights from legislative infringement within a democratic system via striking down laws declared unconstitutional.Footnote 8 As Kavanagh notes, the ‘last word’ debate “poses the problem of constitutional judicial review in a disjunctive way, [i.e.,] as a choice between the courts or the legislature, or between democracy or ‘juristocracy’.”Footnote 9 It is within this debate that countermajoritarian claims are developed.

‘Countermajoritarianism’ is the view that judicial review is antidemocratic because it allows an unelected and unaccountable minority—judges—to overrule laws that represent the will of the majority. This view highlights the clash between the democratic pedigree of the legislator and the undemocratic pedigree of courts: the pedigree problem.

At its core, the pedigree problem relies on the argument that it is illegitimate that an organization with a non-democratic pedigree control or overrule the acts of an organization with a democratic pedigree. Thus, when a court exercises judicial review, “it thwarts the will of representatives of the actual people of the here and now; it exercises control, not in behalf of the prevailing majority, but against it.”Footnote 10 Bickel voices a central countermajoritarianist assumption, the notion of the ‘will of the majority’ as an abstract and timeless identity.Footnote 11 The interests of this abstract entity, the argument goes, are to be ‘represented’ by agents with democratic pedigree.Footnote 12

The pedigree problem embodies a more fundamental concern: It weakens the relationship between representation and democracy. As Klarman notes, “the question of whether the democratic principle of majority rule can be reconciled with the practice of remotely accountable judges invalidating legislation enacted by electorally accountable representatives.”Footnote 13 If representative agencies yield to non-representative agencies, then the very notion of democracy is undermined. This is Bickel’s main point when he says:

But nothing can finally depreciate the central function that is assigned in democratic theory and practice to the electoral process; nor can it be denied that the policy-making power of representative institutions, born of the electoral process, is the distinguishing characteristic of the system. Judicial review works counter to this characteristic.Footnote 14

This point is echoed by Tushnet when he claims, “if the courts have the last word, as with strong-form review, the people run the risk of losing their ability to govern themselves by regulating fundamental rights pursuant to their reasonable interpretation of the constitution’s constraints on self-governance.”Footnote 15

Countermajoritarianism seems to work with a notion of representation closely connected to democratic elections. In this view, representation derives from the fact that authorities are elected by the people.Footnote 16 The democratic pedigree of an organization—or lack thereof—thus depends on whether the appointment of its authorities is the result of a democratic election.

Against countermajoritarianism, scholars have developed several strategies to deal with the pedigree problem. These strategies can be classified into two groups. The first group acknowledges the pedigree problem but claims that there are strong normative reasons to opt for non-democratic devices—such as judicial review—to enforce the rights of the people. I call these views ‘justificatory’ views. One formulation of this strategy is Dworkin’s ‘constitutional democracy’ thesis, which states:

When majoritarian institutions provide and respect the democratic conditions, then the verdicts of these institutions should be accepted by everyone for that reason. But when they do not, or when their provision or respect is defective, there can be no objection, in the name of democracy, to other procedures that protect and respect them better.Footnote 17

That is, when the majority rule fails to protect rights, then judicial review—a countermajoritarian device—is justified.Footnote 18

Another kind of a justificatory view advances claims in favor of coupling judicial review with procedural devices that empower the legislature to have the ‘last word’; this is typically referred to as a ‘weak’ judicial review model.Footnote 19 According to its proponents, there are several reasons why a weak judicial review system is desirable. For instance, it promotes deference between constitutional courts and the legislative body; it reinforces the (democratic) legitimacy of the legal system as a whole; and it helps with “legislative ‘blind spots’.”Footnote 20 Nevertheless, a main criticism against this model, albeit contingent in nature, is that the legislature rarely exercises its overriding constitutional power.Footnote 21 As Dixon notes:

[F]ormal powers of legislative override have had almost no direct effect on the strength of judicial review in Commonwealth countries, compared to the United States, because Commonwealth parliaments have made almost no actual use of such powers to override courts.Footnote 22

It is unclear how these measures have addressed the countermajoritarian concern solely by establishing institutional mechanisms that might translate the last word to the legislature.Footnote 23 However, the proponents of weak judicial review see in these institutional mechanisms a suitable trade-off, aimed at lessening the countermajoritarian worry in a relevant way. This ‘lessening’ power is good enough reason to justify the implementation of (weak) judicial review.

The second group of strategies against countermajoritarianism attempts to defuse the pedigree problem by arguing that judicial review has a democratic pedigree. I call this set of views ‘defusing’ views. Defusing views can take different formulations. One version claims that courts are democratic because institutions with democratic pedigree appoint them; in this way, courts are ‘indirectly’ democratic. Another version claims that there are two kinds of lawmaking: the one that results from normal ‘everyday’ politics, and a higher lawmaking instance reserved for ‘constitutional moments’, wherein judicial review is an integral part.Footnote 24 A third version advances arguments supporting the claim that the argumentative dimension of judicial review is a manifestation of democratic representation.Footnote 25

It is beyond the scope of this paper to deal with these views. However, both groups of strategies face strong objections, which undermine their efforts to deal with countermajoritarianism.Footnote 26

In the next section, I advance a new kind of defusing view by exploring a different path than the ones taken by the previous strategies. I develop my argument by focusing on the interpretative activity of courts; specifically, I focus on the pedigree of the norms that are subjected to judicial review. My argument addresses the kind of judicial review that declares a norm inapplicable in a specific case due to the unconstitutional effects that this application brings about. Notwithstanding the broader implications of my view, its scope is restricted to this kind of model of judicial review.

I maintain that in cases where this kind of judicial review power is exercised, the pedigree problem disappears because the object of judicial review—the norm declared unconstitutional—lacks democratic pedigree. Since both the norm and the judicial review power have a non-democratic pedigree, there is no pedigree problem. Thus, countermajoritarianism fails.

3. Defusing the Pedigree Problem

In order to address the countermajoritarianism claim, two distinctions are in order. First, we must distinguish between two models (or kinds) of judicial review: the ‘negative legislator’ and the ‘inapplicability’ models.Footnote 27 The negative legislator model allows the courts to eliminate laws declared unconstitutional from the legal system.Footnote 28 The inapplicability model allows the courts to refrain from applying laws in a specific case whenever the application of these laws is unconstitutional.

My claim is that countermajoritarianism fails when objecting to the inapplicability model because the agents involved in judicial review—the constitutional court and the judge—have the same pedigree, i.e., non-democratic.

To justify my claim, a second distinction is in order. We must distinguish between ‘norm formulation’ and ‘norm’. A ‘norm formulation’ is an authoritative legal text, which originated from the sources of law of a given community, i.e., black-letter law. A ‘norm’ is typically referred to as the meaning that the interpreter has ascribed to a norm formulation, i.e., the result of the process of legal interpretation.Footnote 29 A norm can be the result of the interpretation of one or several norm formulations.Footnote 30 Interpretation “can be seen as the step from a norm-formulation to a norm.”Footnote 31 The ascription of meaning is guided and constrained by the set of interpretative directives contained in the legal system. I understand legal interpretation to be the ascription of meaning to a text originated by a source of law following certain interpretative guidelines.Footnote 32

The distinction between norm formulation and norm serves as an explanatory model of legal interpretation. It is not meant to determine how interpreters ought to interpret the law but rather to depict what they actually do when interpreting.

Yet one might wonder in which way interpreters elicit norms from norm formulations. Legal systems typically contain interpretative codes that guide and constrain the interpretation of norm formulations. An interpretative code is the set of interpretative directives and interpretative arguments used by courts—and other interpreters—in a given legal system. The interpretative directives are second-order norm formulations that provide legal grounds for the justification of the norm ascribed to the norm formulation. Some examples of interpretative directives include the plain meaning of the text—also known as the ‘literal sense rule’; the history of the legislation; and the intention of the legislator. These different interpretative directives provide grounds for potentially different—and sometimes incompatible—norms. That is, the content of the norm is legally justified in light of the interpretative directive chosen by the courts. The ‘plain meaning of the text’ interpretative directive can potentially justify a different norm than the one grounded in the ‘intention of the legislator’. In turn, norms are the grounds for the legal decisions made by courts. Whatever the content of the decision is, it will be legally valid and produce legal consequences if it is grounded in a norm.

Generally, normative debates in legal interpretation provide arguments for or against the use of a specific interpretative directive. In practice, the multiplicity of norms ascribable to norm formulations provides an array of justificatory strategies for courts to ground their decisions.

Using the norm formulation/norm distinction in the context of judicial review, two interpretations come into play: the interpretation of one or several ‘constitutional norm formulations’ (CNF); and the interpretation of one or several ‘legal norm formulations’ (LNF). From the interpretation of the CNF, a ‘constitutional norm’ (CN) will be obtained. From the interpretation of the LNF, a ‘legal norm’ (LN) will be obtained. The first interpretation is done by the judicial review court; the second interpretation is typically done by the trial courts.

The court will make the compatibility decision by exercising judicial review. Thus, judicial review is the judgment regarding the compatibility or incompatibility between the CN and LN. If the CN and LN are compatible, then the constitutionality decision will declare it as such. However, if the CN and LN are incompatible, then the effects will differ depending on the model of judicial review. In the negative legislator model, the incompatibility decision entails the expulsion of the LNF from the legal system. In the inapplicability model, the incompatibility decision entails the expulsion of the LN and not the LNF.

In practice, different judicial review models can be reconstructed as the ‘compatibility decision’ between the CN and the LN. For example, under the UK’s declaration of incompatibility system, the task of the judge is to assess whether a LNF is compatible with the norm formulation contained in the ECHR, according to the UK Human Rights Act.Footnote 33 UK courts must interpret the LNF and the relevant ECHR-NF. Once the interpretation has been carried out and norms have been ascribed to the relevant norm formulations in play, the compatibility judgment can be executed.

Another example can be found in the German system. When exercising its judicial review powers, the Federal Constitutional Court must examine whether norm formulations—either laws or other kinds of norm formulation—infringe fundamental rights contained in the Basic Law.Footnote 34 Infringing fundamental rights via norm formulations requires the application of said norm formulations. An interpretation of a norm formulation is necessary to apply a norm formulation. Thus, a norm is ultimately the grounds for justification of the act that infringes a person’s fundamental rights. To determine whether there is an infringement, the Federal Constitutional Court must examine the norm that is grounds for such infringement in light of the content of the norm formulations contained in the Basic Law. Such content is nothing but the norm, obtained from interpreting the relevant norm formulations in the Basic Law. To identify an infringement of rights is to engage in the compatibility judgement between the norms and the Basic Law norms in dispute.

Although the effects of the compatibility decision will vary according to which model of judicial review is adopted by a particular legal system, the norm formulation/norm distinction offers a useful explanatory model for the reconstruction and description of judicial review decisions.

The norm formulation/norm distinction provides the following insight regarding the pedigree problem: The legal norm formulation has a democratic pedigree because it is the result of the legislative process, while the legal norm does not have a democratic pedigree because it is the result of the court’s interpretation.

The norm formulation/norm distinction also provides clarity regarding the scope of judicial review: The negative legislator model focuses on the norm formulation, while the inapplicability model focuses on the norm.

Note that as an explanatory model, the norm formulation/norm distinction is compatible with different views about the legislator’s role in lawmaking. A narrow view defends the argument that the legislator’s contribution is merely to provide the text of the norm formulation that courts will interpret. A robust view defends the claim that the legislator ‘imbues’ norm formulations with ends and goals which courts are somehow expected to identify when engaging in legal interpretation. Whatever the defended view, it is possible to advance claims regarding the pedigree of both norm formulation and norms.

Having made these distinctions, I am now in a position to justify my claim: Since the inapplicability model focuses on the unconstitutional effects that the norm—and not the norm formulation—brings about, the pedigree problem disappears. This is so because neither judicial review nor the norm has a democratic pedigree.

4. Predictable Objections

A plausible avenue to counter my defusing argument against the pedigree problem is to attack the norm formulation/norm distinction. Countermajoritarians can adopt either of the following strategies: a) denying that there is such a distinction, or b) acknowledging the distinction but claiming that norms have a democratic pedigree.

a) I will call the first strategy—denying the norm formulation/norm distinction—the ‘sameness’ objection. The sameness objection claims that the pedigree problem persists because the norm formulation and the norm are the same thing: The terms ‘norm formulation’ and ‘norm’ are perceived to be synonymous. If the objection holds, then both norm formulations and norms have a democratic pedigree.

This objection relies on a dubious assumption of legal interpretation, one that does not track legal practice. Among other things, if norm formulations and norms are the same thing, then it is not possible to account for the interpretation of indeterminate formulations. There is no room for interpretative legal disagreements under this view, i.e., different interpretations of the same norm formulation. However, courts do resolve indeterminacy issues and do disagree on how norm formulations are to be interpreted. In both cases, the norm—and not the norm formulation—explains the phenomenon. The norm formulation/norm distinction is a better explanatory model of our legal interpretative practices than the core claim of the sameness objection.

b) The second strategy that countermajoritarians can adopt is to acknowledge the norm formulation and norm distinction but defend the view that norms have a democratic pedigree. If the objection holds, then the pedigree problem persists. There are at least three ways that this objection can be formulated.

b.1) The ‘biunivocal correspondence’ objection claims that each norm formulation corresponds to one norm, and vice versa. Norm formulations have one unique meaning (i.e., the norm in question), and it is the task of the courts to find it. This implies that norms pre-exist the courts’ legal interpretation. Norms are ‘imbued’ with a democratic pedigree by the biunivocal correspondence relationship with the norm formulation, which has a democratic pedigree.

Depending on how this objection is formulated, there are two possible answers. First, if the biunivocal correspondence relation is assumed without further argumentation, then the objection suffers from the fallacy of begging the question. That is, the objection is built under the assumption that there is in fact a biunivocal correspondence relationship between a norm formulation and a norm. Second, to avoid begging the question, proponents of this objection must find a way of grounding the biunivocal correspondence relationship; however, it is not obvious what would ground such a relationship. Morality is the typical ground of the biunivocal relationship argued by scholars: That is, the correct/right/true norm is the result of interpreting the norm formulation in its best moral light or according to the demands of morality and other legally relevant considerations.Footnote 35 This strategy assumes a strong commitment to moral realism as its starting point, without providing further justification for it.Footnote 36 Moral realism is a view open to strong objections and thus not acceptable without further justification.Footnote 37 Moreover, even if moral realism is correct, moral disagreements and the difficulty of obtaining moral knowledge pose a significant problem for the sort of interpretation necessary to establish the correspondence.Footnote 38 If one factors in the other legally relevant considerations, the interpretive task becomes even more formidable. If the biunivocal relationship fails to be grounded in all of these considerations, then the objection fails.

If the grounding of the biunivocal relationship is morality, then proponents of this objection face another difficulty: They will need to find a way of resolving clashes between morality and democracy. After all, if moral realism is correct, then ‘the right thing to do’ is independent of democratic considerations. To avoid incoherence, the biunivocal relationship strategy must accommodate a more fundamental relationship, one between democracy and morality. This objection commits to a view that at minimum claims that democratic decisions are moral decisions. This is, however, highly problematic.

b.2) The ‘underlying reasons’ objection claims that norms refer to the meaning ascribed by the courts to the norm formulation, in light of the underlying reasons that justify the existence of norm formulations. These underlying reasons are legal insofar as they are provided by the legislator when enacting laws, the objection goes.Footnote 39 Since norms are the result of the attribution of meaning in light of the underlying reasons provided by the legislator, norms have a democratic pedigree because they represent the intentions of the legislator. When courts interpret a norm formulation, they are simply giving expression to the intentions of the legislator regarding the regulation of certain behaviors. If the objection holds, then norms have a democratic pedigree.

The underlying reasons objection is open to at least two related responses. First, it is claimed that the legislator provides the underlying reasons. However, it is unclear to what the term ‘formulation legislator’ refers. Is it a single person? Is it a fictional entity? Is it some sort of collective at a specific point in time? Depending on which notion of legislator is used, some problems may arise. The least plausible avenue is to claim that by ‘legislator’ one refers to a specific person. Not only does it fail to track legal practice, but it also does not seem to represent the law-creation process. Courts do not consult legislators when deciding, and typically, one person is not responsible for one (or a set of) norm formulation(s).

Furthermore, norm formulations outlive the flesh-and-bone legislators that enact them; it is unclear how courts are to proceed in cases in which they apply norm formulations when the flesh-and-bone legislators are dead. This is not to say that the legislator did not have an intention at all when enacting norm formulations—after all, they were alive at some point. However, identifying what those intentions are requires the courts to engage in an interpretative reconstruction of the flesh-and-bone legislator practices. The result of this reconstruction is not the real intention of the legislators but rather the interpretation of the courts.

The second response to the underlying reasons objection is to understand the ‘legislator’ as an abstract entity. However, it is unclear what we mean by an ‘abstract entity’. Scholars have formulated different views about this issue. For some, the legislator might be identified as the general will of a political community. For others, the legislator is a fiction that represents the morality of a political community at a specific point in time. In both cases, trying to ascribe intention to this entity requires an interpretative task for courts.

For these reasons, identifying the intention is the result of an interpretative reconstruction performed by courts. This reconstruction aims at formulating the explanatory and justificatory practices of whatever it is that the ‘formulation legislator’ refers to.

The objection fails because the underlying reasons are provided by the courts and not the ‘legislator’. Courts decide on the relevant criteria to distinguish and identify the set of underlying reasons when interpreting norm formulations, and they decide which intentions are to be deemed relevant for this interpretation. And since the courts do not have a democratic pedigree, the reasons to which they appeal when interpreting the norm formulations lack a democratic pedigree too.

b.3) The ‘understanding’ objection claims that typically, norms are the result of a process of understanding the text of a norm formulation. According to this view, legal interpretation necessarily requires engaging in a process of understanding. The process of understanding is “determined by the linguistic rules of the relevant language, and may disclose a fully determinate (linguistic) meaning for the sentence at hand.… Linguistic meaning is a matter of discovery, by means of the hearer/reader’s [language] skills.”Footnote 40 Understanding is a process whereby the reader/hearer can identify the meaning of a sentence by unreflectively ‘using’ the underlying linguistic rules and conventions of a specific language. Since the norm is the meaning of a norm formulation, courts can identify norms via understanding. Thus, the objection goes, norms are ‘contained’ within the text of the norm formulation. If, when interpreting the law, courts make explicit what is already implicit in the norm formulation via the usage of linguistic conventions and language rules, then norms have a democratic pedigree.

The understanding objection has two dimensions: a normative dimension and a descriptive dimension. On the first dimension, interpreters must use the literal meaning of the text interpretative directive when interpreting norm formulations. Interpreting norm formulations amounts to consulting the linguistic conventions and linguistic rules of the relevant language, thus eliciting the norm. On the second dimension, the claim is that the identification of the norm is based on the linguistic conventions and language rules of the relevant language. The descriptive dimension implies the normative. This is so because the proper norm is the literal meaning of the norm formulation, so judges must find this proper norm when engaging in legal interpretation.

In both formulations, there is an underlying assumption about the nature of norms: That is, norms are “tantamount to the clear and determinate linguistic (literal) meanings of its norm-formulations.”Footnote 41

The underlying assumption of the understanding objection is highly questionable in both of its dimensions. As a normative endeavor, strong reasons are needed to maintain that interpreters ought to use the literal meaning interpretative directive over the other ones—intention, history, systematic, teleological, etc.—when using the interpretative code.

As a descriptive view of legal interpretation, the understanding objection is false. It does not account for the norms ascribed when interpreting indeterminate norm formulations.Footnote 42 The understanding objection is incompatible with the indeterminacy cases—that is, cases where the linguistic conventions and rules of the relevant language are insufficient to determine the meaning of the norm formulations. When facing indeterminate norm formulations, courts cannot resort to understanding to elicit norms. Rather, they must appeal to something else—morality, public policy, religious views, political considerations, etc. If we accept the underlying assumption—i.e., norms are the result of applying linguistic rules and conventions—then we cannot explain cases in which norms are ascribed to indeterminate norm formulations. This is so because by definition these norms cannot be elicited from the application of linguistic conventions or rules of language. However, courts do resolve indeterminacy cases by eliciting norms from norm formulations. Norms applied in indeterminacy cases are outside of the explanatory scope of the understanding objection.

There is a further problem. If the descriptive formulation of the understanding objection is right, it is unclear how to deal with cases when there can be a plurality of conflicting understandings. Typically, linguistic conventions change over time. Norm formulations might have been enacted at a time when a specific set of linguistic conventions were applicable but interpreted at a different time, one when those linguistic conventions are no longer shared. It is reasonable to acknowledge that the linguistic conventions applied when interpreting norm formulations are typically those of the interpreter. So, in cases in which the linguistic conventions of the legislator and the court differ, the conventions used by the court will typically prevail. Favoring judges is problematic for the understanding objection, because for it to be successful, it requires the opposite approach. Unless we commit ourselves to the implausible notion that linguistic conventions and rules do not change over time, it is difficult to see how these conflicts can be resolved in a way that favors the understanding objection. There is no reliable way to preserve the ‘implicit meaning’ provided by the legislator. Thus, the pedigree problem remains.

The understanding objection relies on a faulty notion of interpretation, and it seems to require a commitment to an implausible view regarding the immutability of linguistic rules and conventions to be successful.

5. Conclusion

In this paper, I have advanced an argument that defuses the pedigree problem when dealing with the inapplicability model of judicial review. The argument claims that in such cases there is no clash of pedigree when the courts exercise judicial review power. This is so because the inapplicability model focuses on norms and not norm formulations. Norms do not have a democratic pedigree, because they are the result of the interpretative process that courts—an example of non-democratic organizations—engage in when adjudicating. Judicial review is a competence exercised by an institution (or institutions) with a non-democratic pedigree—namely, courts or constitutional courts. Neither the norm nor the judicial review decision has a democratic pedigree—thus, the pedigree problem disappears.

If the core claim of countermajoritarianism is that judicial review is antidemocratic because institutions with an undemocratic pedigree can strike down acts of institutions with a democratic pedigree, then the most plausible way for the core claim to be successful is by defending a view that recognizes the democratic pedigree of norms. In this paper, I have advanced different versions of the core claim against the inapplicability model of judicial review that argues for the democratic pedigree of norms; however, they all fail.

Broader implications of my argument can be drawn regarding two topics. The first implication is a methodological one. It deals with the identification of a multiplicity of debates within the countermajoritarian discussion. One debate encompasses those systems in which judges are elected democratically. Another debate encompasses those systems in which judges are not elected democratically. A third debate deals with the strength of the countermajoritarian objection in light of the model of judicial review to which this objection is referring. This debate is twofold: Presumably, different conclusions can be drawn whether the objection is directed against the negative legislator judicial review model or against the inapplicability model. Thus, several discussions can be distinguished within the countermajoritarian debate.

The second implication deals with the relationship between democracy and representation. From the fact that countermajoritarianism is untenable when dealing with judicial review in its inapplicability version, does it follow that democracy is undermined? One possible way to address this question is to revise the relationship between democracy and representation. My argument provides good reasons to abandon a restrictive notion of representation that focuses on its electoral dimension, which seems to be the one assumed by countermajoritarianism. A plausible avenue to explore is that of broadening the notion of representation in a way that allows accommodation of the role of the courts in the enforcement of rights.Footnote 43

Acknowledgments

I am grateful to Don Loeb, Andrej Kristan, Donald Bello Hutt, Hans Lindahl, Dimitrio Kyritsis, Antonia Waltermann, Massimo Fichera, Roland Pierik, Jaap Hage, Lukasz Dziedzic, Michele Ubertone, Victor García Yzaguirre, Alejandro Calzetta, Elena Marchese, Julieta Rábanos, Marteen Stremler, Sebastián Lewis, Mathieu Carpentier, Hafsteinn Kristjansson, Filip Jelínek, Minna Gräns, and Henrique Marcos for their thoughtful and helpful comments on earlier drafts. I want to thank the reviewers for their insightful comments. Previous versions of this paper have been presented at Filosofidagarna at Uppsala University, Maastricht Foundations of Law Colloquia at Maastricht University, Higher Seminar in Jurisprudence at Uppsala University, The Philosophy of Constitutional Interpretation Conference at Toulouse University, Constitutional Seminar Series at Univerzita Karlova, and the Reconnect—Contemporary Challenges to Constitutionalism, Democracy, at the Universidad de Valladolid.

References

1. The pedigree problem is pervasive in the literature on judicial review: see e.g. Mark Tushnet, Taking the Constitution Away from the Courts (Princeton University Press, 1999); Larry D Kramer, The People Themselves: Popular Constitutionalism and Judicial Review (Oxford University Press, 2004); Richard Bellamy, Political Constitutionalism: A Republican Defence of the Constitutionality of Democracy (Cambridge University Press, 2007); Christopher J Peters, A Matter of Dispute: Morality, Democracy, and Law (Oxford University Press, 2011); Jeremy Waldron, “The Core of the Case Against Judicial Review” (2006) 115:6 Yale LJ 1346; Roberto Gargarella, The Law as a Conversation among Equals (Cambridge University Press, 2022); Aileen Kavanagh, The Collaborative Constitution (Cambridge University Press, 2024).

2. See e.g. Riccardo Guastini, “Fragments of a Theory of Legal Sources” (1996) 9:4 Ratio Juris 364 at 366; Pierluigi Chiassoni, Interpretation without Truth: A Realistic Enquiry (Springer, 2019) at 19; Maribel Narváez Mora, “Expressing Norms: On Norm-Formulated and Other Entities in Legal Theory” (2015) 25 Revus: J Const Theory & Phil Law 43 at 44; Giorgio Pino, Diritti e interpretazione: Il ragionamento giuridico nello Stato costituzionale (Il Mulino, 2010) at 15; Eugenio Bulygin, “The Objectivity of the Law” in Carlos Bernal et al, eds Essays in Legal Philosophy (Oxford University Press, 2015) 302 at 308. Historically, this distinction was the result of the constitutional discussion around judicial review in Italy at the beginning of the second half of the twentieth century: see Tullio Ascarelli “Giurisprudenza costituzionale e teoria dell’interpretazione” (1957) 12 Rivista di diritto processuale 351; Pierluigi Chiassoni “Disposición y norma: Una distinción revolucionaria” in Susanna Pozzolo & Rafael Escudero, eds, Disposición vs. Norma (Palestra, 2011) 1 at 7-9.

3. See e.g. Hans Kelsen, The Pure Theory of Law, 2nd ed, translated by Max Knight (The Lawbook Exchange, 2005) at § VIII; Karl N Llewellyn, The Theory of Rules, ed by Frederick Schauer (University of Chicago Press, 2011) at ch 3; Ingemar Hedenius, Om rätt och moral, 2nd ed (Wahlström &Widstrand, 1963); Giovanni Tarello, L’interpretazion della legge (Giuffre, 1980).

4. In this sense, my paper is a legal philosophy paper that utilizes insights from its field to address a relevant problem in constitutional theory.

5. The constitutional powers of the courts are several and of different natures. They can range from assessing the constitutional quality of legislation (judicial review) to mandating or forbidding the behaviors of public and private entities that affect fundamental rights (habeas corpus, amparo, ensuring accountability of other branches of government, tutela powers, among other competencies). In this paper, I focus on one specific constitutional power: judicial review. These constitutional powers may be affected by countermajoritarian defects, which could undermine democracy. Although I am aware that my arguments may be relevant to the analysis of constitutional powers other than judicial review, my primary focus is on the arguments justifying the countermajoritarian objection and its strength in dealing with inapplicability models of judicial review. I leave the door open to explore the implications of my defusing strategy for other constitutional competencies, although I do not focus on them in this paper.

6. This implies that other conclusions are available in systems in which judges are elected democratically.

7. For an overview, see Donald E Bello Hutt, “Against judicial supremacy in constitutional interpretation” (2017) 31 Revus: J Constitutional Theory & Philosophy L 7.

8. Contra judicial review, see Waldron, supra note 1; pro judicial review, see Richard Fallon, “The Core of an Uneasy Case for Judicial Review” (2008) 121:7 Harv L Rev 1693. For a critical overview of this debate, see Mark Tushnet, “How Different are Waldron’s and Fallon’s Core Cases For and Against Judicial Review?” (2010) 30:1 Oxford J Leg Stud 49.

9. Aileen Kavanagh, “A Hard Look at the Last Word” (2015) 35:4 Oxford J Leg Stud 825 at 826 [emphasis in original].

10. Alexander M Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics, 2nd ed (Yale University Press, 1986) at 17.

11. This assumption takes different formulations, e.g., ‘the will of the people’, ‘the political community’, ‘the will of the majority’, ‘the People’, etc.: see e.g. Kramer, supra note 1; Bruce Ackerman, We the People: 1 Foundations (Belknap Press, 1991); Waldron, supra note 1 at 1361.

12. See Jeremy Waldron, Law and Disagreement (Oxford University Press, 1999) at ch 11.

13. Michael J Klarman, “Majoritarian Judicial Review: The Entrenchment Problem” (1997) 85:3 Geo LJ 491 at 492 [emphasis added, footnote omitted].

14. Bickel, supra note 10 at 19.

15. Mark Tushnet, “Weak-Form Judicial Review and ‘Core’ Civil Liberties” (2006) 41:1 Harv CR-CLL Rev 1 at 10 [emphasis in original].

16. The nature of representation in a democratic system is a matter of debate; see e.g. David Plotke “Representation is Democracy” (1997) 4:1 Constellations 19; Hans Lindahl, “Inside and Outside Global Law” (2019) 41:1 Sydney L Rev 1; Philip Pettit, “Varieties of public representation” in Ian Shapiro, et al, eds, Political Representation (Cambridge University Press, 2009) 61. Accountability is another feature of countermajoritarianist’s conception of democracy: see Or Bassok, “The Two Countermajoritarian Difficulties” (2012) 31:2 St Louis U Pub L Rev 333 at 340.

17. Ronald Dworkin, Freedom’s Law: The Moral Reading of the American Constitution (Harvard University Press, 1996) at 17.

18. For a justificatory view that criticizes Dworkin’s, see Dimitrios Kyritsis, Where Our Protection Lies: Separation of Powers and Constitutional Review (Oxford University Press, 2017).

19. For a critical overview of this model, see Kavanagh, supra note 9; Mark V Tushnet “Alternative Forms of Judicial Review” (2003) 101:8 Mich L Rev 2781 at 2782. Weak judicial review systems have been adopted by Commonwealth countries, such as, inter alia, Canada, Australia, and New Zealand. The study of this system in these countries has led to the development of a distinct theoretical branch of constitutionalism known as ‘Commonwealth Constitutionalism’: see Stephen Gardbaum, The New Commonwealth Model of Constitutionalism: Theory and Practice (Cambridge University Press, 2013). Although there are different ways of setting up weak judicial review systems, they all aim at granting the legislative powers to override the courts’ judicial review decisions. “[T]he argument is that legislative majorities should have power to narrow or override court decisions with which they (reasonably) disagree in the short, not just long, run.” Rosalind Dixon, “The forms, functions, and varieties of weak(ened) judicial review” (2019) 17:3 Intl J Const L 904 at 907.

20. Rosalind Dixon “The Core Case for Weak-Form Judicial Review” (2017) 38:6 Cardozo L Rev 2193 at 2196ff. See also Stephen Gardbaum “The Case for the New Commonwealth Model of Constitutionalism” (2013) 14:12 German LJ 2229.

21. See Kavanagh, supra note 9 at 833-35.

22. Rosalind Dixon, “Weak-Form Judicial Review and American Exceptionalism” (2012) 32:3 Oxford J Leg Stud 487 at 488 [emphasis in original].

23. See ibid at 493.

24. See e.g. Ackerman, supra note 11. Peters claims that “Ackerman defends judicial review as necessary to preserve the superauthoritative results of higher lawmaking against backsliding during periods of normal politics.” Peters, supra note 1 at 231.

25. See Robert Alexy, “Constitutional Rights, Democracy, and Representation” (2014) 3:2 Ricerche Giuridiche 197.

26. For objections against both groups of strategies, see e.g. Tushnet, supra note 15; Peters, supra note 1; Bassok, supra note 16 at 340; Donald Bello Hutt, “Political Representation as a Regulative Ideal” (2019) 38 Revus: J Const Theory & Phil Law 39.

27. This distinction seems to mirror a well-known distinction in Constitutional Theory: the ‘facial and as-applied challenges’ distinction. In general terms, ‘as-applied’ challenges aim to declare the application of a norm formulation in a specific case unconstitutional, while ‘facial’ challenges aim to declare a norm formulation unconstitutional in all cases and times. For this distinction, see Richard H Fallon Jr, “As-Applied and Facial Challenges and Third-Party Standing” (2000) 113:6 Harv L Rev 1321; Richard H Fallon Jr, “Fact and Fiction about Facial Challenges” (2011) 99:4 Cal L Rev 915. Prima facie, there is a similarity between the two models of constitutional control described in this paper: As-applied challenges match inapplicability and facial challenges with the negative legislator. However, this similarity is only apparent because both as-applied and facial challenges are instances of in concreto judicial review, whilst negative legislator is a kind of in abstracto judicial review. See Hans Kelsen & Carl Schmitt, The Guardian of the Constitution: Hans Kelsen and Carl Schmitt on the Limits of Constitutional Law, ed & translated by Lars Vinx (Cambridge University Press, 2015). The as-applied/facial distinction is not analogous to inapplicability/negative legislator distinction. Facial and as-applied are two sides of the inapplicability model, not covering the negative legislator model. I want to thank the reviewer for pointing out the as-applied/facial distinction and its possible relation to the distinction advanced in this paper.

28. The nature of the judicial review power in the negative legislator model is a subject of debate. On the one hand, it is claimed to be a form of derogation; on the other hand, it is claimed that it is a declaration of invalidity. The main difference between these two views is the temporal effect of judicial review. In the first case, the effects are prospective; in the second case, the effect is retroactive. See Claudina Orunesu, Jorge L Rodríguez & Germán Sucar, “Inconstitucionalidad y derogación” (2021) 2 Discusiones 11.

29. This view implies a ‘hyletic conception’ of norms as opposed to an ‘expressive conception’. The ‘hyletic’ conception of norms claims that norms are meanings. The ‘expressive’ conception claims that norms are the result of the prescriptive use of language. For the hyletic/expressive debate, see Carlos E Alchourrón, “The Expressive Conception of Norms” in Bernal et al, supra note 2, 146. For a view that argues against a specific ontology of norms, see Maribel Narváez Mora, “Expressing Norms” (2015) 25 Revus: J Const Theory & Phil Law 43. For an overview on the ontology of norms, see Jorge Luis Rodríguez, Teoría analítica del derecho (Marcial Pons, 2021) at chs 1, 2, 3.

30. See Riccardo Guastini, Interpretare e argomentare (Giuffre, 2011) at 68-69.

31. Bulygin, supra note 2 at 308.

32. For some formulations of the notion of interpretation on these lines, see Riccardo Guastini, “Rule-Scepticism Restated” in Brian Leiter & Leslie Green, eds, Oxford Studies in Philosophy of Law: Volume 1 (Oxford University Press, 2011) 138; Pierluigi Chiassoni, “On the Wrong Track: Andrei Marmor on Legal Positivism, Interpretation, and Easy Cases” (2008) 21:2 Ratio Juris 248 at 263.

33. See Human Rights Act 1998 (UK), s 4 [HRA].

34. See Basic Law for the Federal Republic of Germany, online: www.gesetze-im-internet.de/englisch_gg/ [Basic Law].

35. See e.g. Ronald Dworkin, Law’s Empire (Harvard University Press, 1986); Mark Greenberg, “The Moral Impact Theory of Law” (2014) 123:5 Yale LJ 1288; Michael S Moore “A Natural Law Theory of Interpretation” (1985) 58:2 S Cal L Rev 277; David O Brink, “Legal Interpretation, Objectivity, and Morality” in Brian Leiter, ed, Objectivity in Law and Morals (Cambridge University Press, 2009) 12; Scott Hershovitz, Law Is a Moral Practice (Harvard University Press, 2023).

36. Skoczeń and Poggi deploy similar objections against some strands of interpretivism. See Isabel Skoczeń & Francesca Poggi, “Delimiting Legal Interpretation: The Problem of Moral Bias and Political Distortion—the Case of Criminal Intention” (2022) 35:2 Ratio Juris 191.

37. For an overview of some relevant objections against moral realism, see Don Loeb, “Gastronomic Realism—A Cautionary Tale” (2003) 23:1 J Theoretical & Philosophical Psychology 30.

38. See D Loeb, “Moral Realism and the Argument from Disagreement” (1998) 90:3 Philosophical Studies 281; Brian Leiter, “Disagreement, Anti-Realism about Reasons, and Inference to the Best Explanation” (17 August 2021), online: Ethical Theory and Moral Practice doi.org/10.1007/s10677-021-10219-y.

39. See e.g. Andrei Marmor, Interpretation and Legal Theory, 2nd ed (Hart, 2005) at ch 8; Joseph Raz, Between Authority and Interpretation: On the Theory of Law and Practical Reason, 2nd ed (Oxford University Press, 2009) at chs 11, 12; Richard Ekins, The Nature of Legislative Intent (Oxford University Press, 2012).

40. Chiassoni, supra note 32 at 259.

41. Ibid at 260.

42. My understanding of indeterminacy cases is broader than the standard account. The standard account—or the Hartian version—understands indeterminacy cases as the result of the ‘open texture’ of natural language-based formulations: see HLA Hart, The Concept of Law, 3rd ed (Oxford University Press, 2012) at 124-36. Open texture cases are typically referred to as instances of vagueness. My understanding of indeterminacy cases is broader because it encompasses both vagueness and ambiguity scenarios. For an overview of indeterminacy cases, see Guastini, supra note 32 at 144-47. For an overview of the standard account, see David O Brink, “Legal Theory, Legal Interpretation, and Judicial Review” (1988) 17:2 Philosophy & Public Affairs 105; cf David Lyons, “Open Texture and the Possibility of Legal Interpretation” (1999) 18:3 Law & Phil 297.

43. For different perspectives developing this broader implication, see Robert Alexy, “Balancing, constitutional review, and representation” (2005) 3:4 Intl J Constitutional L 572; Donald Bello Hutt, “Political Representation as Interpretation: A Contribution to Deliberative Constitutionalism” (2020) 33:4 Ratio Juris 351.