Judicial review in the fact-finding arena

does the lack of democratic legitimacy really matter?

Abstract

One of the classic arguments against judicial review in relation to laws is the idea that it disrespects an important component that confers legitimacy on them: their democratic nature. At least initially, it is reasonable to assume that a democratically established law cannot be invalidated by a counter-majoritarian power. However, this assumption is not so easily sustainable, even initially, when one considers that laws do not only rule on issues of a normative nature, which are deeply intertwined with values. Scenarios in which legislators establish provisions that incorporate important decisions about facts prove useful in the perception that the democratic component does not always matter, because what is at stake in these scenarios is not predominantly a value, but rather reality itself. Based on this argumentative plan, the article defends, as a central thesis, the duty to reconsider judicial review, when the discussion is about facts, despite its counter-majoritarian nature. The article is developed in three parts. First, the distinction between value and fact is highlighted, arguing that the element of democratic consensus is of little relevance when the discussion is centrally about facts. Second, it is argued that judicial review is appropriate in scenarios such as the one in which there is robust evidence that the legislature has produced a legal provision that, although democratically established, is counter-epistemic, as is the case with Law 13,269/2016. Third, three possible objections to the central thesis of the article are anticipated and addressed. The methodology used is that of bibliographic review.