Constitutional Lottery

Abstract

Marmor conceives of a hypothetical scenario in which judicial review is exercised not by a constitutional court, but by a lottery made by a computer according to a program designed to produce the same average results that have been achieved by the empirically existing system. Such scenario is used by the author to criticize the legitimacy or moral and political justification of the existing system. This is done by comparing the lottery and the cited system. This article has two main objectives: to describe Marmor’s arguments; to understand such arguments in a critical manner. The descriptive stage is accomplished through theoretical and bibliographic research and seeks to reproduce Marmor's arguments in the most accurate way possible, thus avoiding argumentative distortions, in addition to situating his use of the idea of ​​lottery among other uses of the same idea found in other works of legal philosophy. The comprehensive and critical stage is also done through theoretical and bibliographic research; the sources found and consulted are synthesized, confronted with each other and transcended by other forms of reasoning in search of the most consistent position. This theoretical effort is justified by two main reasons: i) the social importance of constitutional courts and their bases of legitimacy; ii) the absence of other works with the same approach. It should be of interest to everyone involved in the study of legal philosophy, constitutional theory and areas related to the understanding of judicial review.