Luís Roberto Barroso’s Theory of Constitutional Adjudication: A Philosophical Reply

Abstract

Luís Roberto Barroso is one of the most influential legal scholars in Latin America. In this Article, we challenge his theory of constitutional legitimacy. Barroso believes that the legitimacy of constitutional adjudication stems from three different roles performed by constitutional courts. First, courts play a counter-majoritarian role; second, they have also a “representative role.” Although judges lack votes, they are better positioned than legislatures to interpret the will of the people because they are less vulnerable to partisan interests. Finally, courts can perform an “enlightened role”; they can break the political inertia and lead society to a better future. Although these powers should be used sparingly, courts can act as an enlightened vanguard and push history forward in the interests of the citizens. We argue that these roles are conceptually inconsistent and that the last two roles are not justified. We conclude, in addition, that Barroso’s theory of judicial legitimacy encourages a politicization of adjudication and constitutes a threat to the rule of law.