I tre sentieri della difficoltà contro-maggioritaria: Un’analisi filosofico-giuridica

Published 2025-07-04
Keywords
- Democracy, constitutionalism, judicial review, division of powers
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Copyright (c) 2025 Paolo Bodini

This work is licensed under a Creative Commons Attribution 4.0 International License.
Abstract
This article examines the “counter-majoritarian difficulty” in constitutional democracies, analyzing the tension between constitutional courts’ counter-majoritarian power to review laws and the majoritarian legitimacy of legislative acts. The analysis identifies three main interpretations of this tension. The “anti-democratic path” characterizes constitutional review as potentially harmful to democracy, proposing, in its judicial variant, solu- tions based on judicial restraint, and in its political version, an institutional arrangement allowing legislators to override judicial review (weak judicial review). The “democratic path” dissolves the counter-majoritarian difficulty by advancing a dual perspective, both procedural and substantive, of coexistence and collaboration between courts’ counter-majoritarian authority and parliaments’ majoritarian authority. Finally, the “representative path” radicalizes the democratic interpretation of constitutional courts’ role, asserting their capacity to represent citizens’ interests by making present the constitutional commitments that underpin civil and political coexistence.