The Problem of the Counter - Majoritarian Difficulty of Constitutional Justice from the Perspective of the Legitimacy of Reflexivity in Pierre Rosanvallon

Abstract

The present study deals with the problem of counter-majoritarian difficulty that usually is attributed to courts of law that apply constitutional review. To overpass such difficulty, it assumes Pierre Rosanvallon’s legitimacy of reflexivity perspective. By relying on this author’s theorizations and enriching the analysis and argumentation with different Constitutional Law and Democratic Theory concepts, the article proposes an innovative hypothesis: the democratic role of constitutional courts and of legal reflexivity in general does not refer to liberal grounds, but properly democratic ones, because of the impossibility of identification between the sovereign people and the representatives’ will. In this way, the article pretends to give an account of how constitutional courts can crystallize, in the perspective of a complex democracy, new forms of representation. Even when the plurality needs to be thicken, simplified, by electoral processes to raise ruling majorities, as a counterpart it is indispensable the existence of reflexive agencies to recompose the diversity through public debate, to put a stop to majoritarian decisions, especially when they invade the sphere of fundamental human rights. Additionally, the matter of democracy’s plural temporality can be of especial interest, as an aspect not considered in political and legal theory.