Abstract

CORTES-ARBELAEZ, ALEJANDRO. Judges without Robes: A Republican Approach to Participatory Judicial Review. Rev. Derecho Estado [online]. 2023, n.57, pp.41-83.  Epub Dec 01, 2023. ISSN 0122-9893.  https://doi.org/10.18601/01229893.n57.03.

This paper presents a republican approach to judicial review that is based on a deliberative and participatory interpretation of this institutional arrangement. The paper is divided into five sections, plus an introduction. Section I presents some considerations and clarifications regarding the concept of judicial review and the type of republican political theory that underlies the main arguments. Section II reconstructs the republican critique of judicial review. Section III shows that subscribing to a republican perspective does not necessarily lead to the endorsement of this critique and presents a defense of judicial review that relies on a republican conception of deliberative democracy that stresses the potential of this institution as a mechanism that serves to promote political participation in equal terms and that, thus, imbues judicial review with a participatory democratic legitimacy. Section IV argues that the participatory democratic legitimacy of judicial review should be seen as a gradual phenomenon whose relative strength or weakness depends on the variations of specific characteristics of the institutional context where the judiciary operates. Section V presents some conclusions.

Keywords : Judicial review; republicanism; democracy; participation; legitimacy.

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