Institutionalising Socratic Contestation: The Rationalist Human Rights Paradigm, Legitimate Authority and the Point of Judicial Review

Abstract

The point of judicial review in Europe is to legally institutionalize a practice of Socratic contestation. Socratic contestation refers to the practice of critically engaging authorities, in order to assess whether the claims they make are based on good reasons. This practice, described most vividly in the early Platonic dialogues, shares many features with judicial review and raises some of the same questions. For one, neither is legalist. In constitutional rights law, the proportionality requirement, which is a defining feature of what I call the Rationalist Human Rights Paradigm (RHRP), requires open engagement with questions of policy and justice. Yet the reasoning courts engage, like Socratic elenctic reasoning, is relatively pedestrian and craftsmen-like and does not generally require the talents of philosopher kings or Herculean demi-gods. Socrates, who claimed to know nothing and Judges, who only claim to know the law, in practice turn out to be quite effective at uncovering basic mistakes in the justifications advanced by the party whose claim is at issue. Legally institutionalised Socratic contestation is well suited to address a wide range of pathologies that occasionally infest the political process, ranging from 1. complacent thoughtlessness brought about by habit, convention or tradition, 2. deciding on grounds that are inappropriate in a liberal democracy or 3. succumbing to ideology. Furthermore Socratic contestation is a practice that gives institutional expression to the idea that all legitimate authority depends on being grounded in public reasons, that is, justifiable to others on grounds they might reasonably accept. Judicial review as Socratic contestation is attractive both because it leads to better outcomes and because it reflects deep commitments of liberal democracy. Socrates claimed that a polity that takes pride in self-government, should accord him a place of honor , instead of trying to silence him. The same is true for legally institutionalised Socratic contestation.