Resumen de Judicial Majoritarianism Revisited: "We, the Other Court"?
Twenty years ago, an interesting�and swiftly famous�answer to the legitimacy question in relation to the judicial creation of the EU internal market was offered by Miguel Poiares Maduro. Heavily influenced by the �representation-reinforcing theory of judicial review�, developed by J.H. Ely, and ingeniously entitled We, the Court, the book argued that the jurisprudence of the Court of Justice had been seriously misunderstood when identified with neo-liberal deregulation�a phenomenon that Maduro associated with the US idea of �economic due process�. For instead of protecting minority economic rights against national (democratic) regulation, the European Court showed a �majoritarian activism�. The judicial review of State legislation by the Court was thus characterised as �a kind of [Union] legislative process�, in which the Court operates as a quasi-legislature that judicially harmonises diverse national rules �in accordance with an �ideally drafted� representation of all States� interests�. How correct was that description then (and now), and what normative arguments did Maduro propose to justify�and limit�the idea of �judicial majoritarianism�? This late �review� revisits the central premises of the famous monograph and subjects them, with the benefit of 20 years of hindsight, to critical scrutiny in the hope of re-opening discussions on the legitimacy of and justice in the internal market.
