Continental Constitutionalism, Systemic Legitimacy, and Judicial Review

This article elaborates on the justification and legitimacy of judicial review in continental constitutionalism. After the Second World War, continental constitutionalism shifted from a Kelsenian conception of constitutional courts to a strong model of judicial review whose legitimacy requires maintaining distance both from the U.S. model built around checks and balances and from the model embodied by the New Commonwealth constitutionalism. I suggest that the legitimacy of continental judicial review should not depend on the degree to which it resists the countermajoritarian objection, but rather that it should follow a logic of protective efficacy that takes a systemic perspective. On this basis, I propose coordinating judicial review in terms of a weak form of constitutionalism that I call “cooperative constitutionalism”, whose three main axes are: a democratic culture of justification, a conception of fundamental rights as qualified mandatory goals and a systemic approach to the proportionality test.