Abstract

VALENTINI, CHIARA. Deliberative Democracy, Social Rights and the Modulation of Judicial Review. Rev. Derecho Estado [online]. 2021, n.49, pp.179-197.  Epub Oct 06, 2021. ISSN 0122-9893.  https://doi.org/10.18601/01229893.n49.10.

Roberto Gargarella has infused into constitutional theory a deliberative approach to constitutional review and rights adjudication. By this, he has enriched our understanding of deliberative democracy as a political system in which the judiciary can play a central role, especially through the institu tion of constitutional review. Furthermore, he has provided us with crucial insights into the deliberative potential of this institution, shedding light on the different ways in which it may serve to secure the essential conditions of democratic deliberation. The article centers on this twofold, crucial contribu tion of Gargarella - to constitutional theory and to deliberative democratic theory - with a focus on the relationship between social rights and constitu tional review. First, it presents the main controversial issues raised by this relationship, concerning both social rights justiciability and adjudication. Second it highlights the resources provided by Gargarella to understand and address both orders of issues, based on his account of deliberative democracy and constitutional review. Third, the article addresses the resulting view of the action of courts on social rights. In particular, it inquires into the idea of a "third way" for judicial action, requiring to modulate judicial review so as to mediate between judicial inertia and activism.

Keywords : Deliberative democracy; social rights; justiciability; adjudication; Gargarella.

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