The author discusses the application of the suitability test in constitutional adjudication. Then he puts forward a thesis that in comparison with the essentially philosophical categories of reasonableness and rationality, this prong of proportionality principle has practical value in judicial review of legislation. The political system has to meet the minimum standards of a deliberative democracy in order courts could use the doctrine of rationality. Among such standards are: recognition of the diversity of ideologies, real competition between political parties and other groups, a serious attitude towards discussion in society, etc. High courts, even in countries with long democratic traditions, usually use the self-restraint technique in reviewing the reasonableness of statutes. In illiberal and populist regimes, due to the unification of public discourse and the imitation of democratic institutions, the challenging of reasonableness of majority decisions can be dangerous. The argument on absurdity of legislation is relatively rare in the case-law of the Constitutional Court of the Russian Federation. It can be found in the dissenting opinions of constitutional judges. In regard with the recent legislative ban on the publication of these opinions, the reasoning ad absurdum has rather theoretical significance for constitutional adjudication in Russia. Moreover, criticism of the reasonableness of legislation can now create additional obstacles for the difficult dialogue of the Russian Constitutional Court with the parliament and other “political” branches. An alternative to critically reviewing the unreasonableness of parliamentary decisions in constitutional adjudication are both the borrowing of economic methodology and certain principles of Legisprudence. The author puts forward the argument on utility of these principles on the judicial review of the ability of legislative means to achieve public goals. Suitability has an empirical nature and requires scientific validity of statutes. Selection of regulatory measures should be evidence-based and grounded on outcomes of research. Usually, constitutional judges do not have special knowledge of complex issues of socio-economic policy. More often than not, the absence of such an expertise means deference to the parliamentary and administrative fact-finding, which predetermined the normative decision. The intensity of the review of the suitability of legislation can be increased in those areas where constitutional judges have the necessary expertise or practical background. Constitutional tribunals recognize the broad discretion of representative bodies in forecasting the social, economic and other consequences. Otherwise, the intervention of judges in the goal-setting of regulatory policy is inevitable. Forecasting can be inaccurate and even erroneous due to the targeting of the regulatory decision for the future. A second-guess of the legislative forecast in constitutional adjudication is an exception to the general rule. It is possible due to newly discovered circumstances, changes taking place in society or progress in science. The implementation of regulatory impact assessment in law-making does not replace, but supplements the judicial review of the principle of proportionality. Consistency test in constitutional adjudication is closely related to the principle of legal certainty, which in turn excludes inconsistency and contradictions of legislative measures with public aims. The consistency approach obliges the members of parliament to be logical in the implementation of the legislative intent. Otherwise, citizens’ legitimate expectations in the governmental policy are undermined. The suitability test has an applied meaning in discrimination cases. If unequal treatment affects the fundamental rights of truly vulnerable social groups, constitutional judges could increase the intensity of judicial review of unreasonable laws.
Standards of Judicial Review : Is it Time to Change our Analysis ?