Rule of law and democracy. About the justification of constitutional judicial review in Habermas's theory of discourse

Abstract

One of the restrictions of Law over the other branches of government (legislative and executive) is the judicial control of constitutionality of democratic norms. This raises questions because it is objected that judges do not have the democratic legitimacy for such decisions. This article analyzes the theoretical position of Habermas to justify the articulation between the point of view of law and democracy, that the judicial review implies, on the basis of his theory of discourse. The idea is that it can provide a greater theoretical support than is usually proposed to justify this kind of normative control