Towards dissent at the CJEU: lessons from demosprudence?

Lani Guinier and Gerald Torres developed the concept of demosprudence to describe how certain judges in the United States use their judicial opinions to engage with a broader ‘community of consent’: in other words, to reach out to individuals and social movements and encourage them to play a more active part in lawmaking and legal change. This is a particularly attractive concept for those who wish to see a more deliberative and participatory democratic system. The European Union, especially since the Eurozone Crisis, increasingly lacks both kinds of democracy. This paper explores whether the CJEU can speak demosprudentially, and if so, whether this can help enhance its democratic order. It argues that ultimately, if the CJEU is to be seen as an agent for improving deliberative democracy - whether or not that is through demosprudence - the introduction of separate judgments is essential.