Constitutional Courts and Deliberative Democracy
Series: Oxford Constitutional Theory;
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Product details:
- Publisher OUP Oxford
- Date of Publication 8 October 2015
- ISBN 9780198759454
- Binding Paperback
- No. of pages260 pages
- Size 235x158x13 mm
- Weight 402 g
- Language English 50
Categories
Short description:
It is often argued that courts are better suited for impartial deliberation than partisan legislatures, and that this capacity justifies handing them substantial powers of judicial review. This book provides a thorough analysis of those claims, introducing the theory of deliberative capacity and its implications for institutional design.
MoreLong description:
Contemporary democracies have granted an expansive amount of power to unelected judges that sit in constitutional or supreme courts. This power shift has never been easily squared with the institutional backbones through which democracy is popularly supposed to be structured. The best institutional translation of a 'government of the people, by the people and for the people' is usually expressed through elections and electoral representation in parliaments.
Judicial review of legislation has been challenged as bypassing that common sense conception of democratic rule. The alleged 'democratic deficit' behind what courts are legally empowered to do has been met with a variety of justifications in favour of judicial review. One common justification claims that constitutional courts are, in comparison to elected parliaments, much better suited for impartial deliberation and public reason-giving. Fundamental rights would thus be better protected by that insulated mode of decision-making. This justification has remained largely superficial and, sometimes, too easily embraced.
This book analyses the argument that the legitimacy of courts arises from their deliberative capacity. It examines the theory of political deliberation and its implications for institutional design. Against this background, it turns to constitutional review and asks whether an argument can be made in support of judicial power on the basis of deliberative theory.
"The strength of the book is in its detailed examination of what still largely remains at least from the perspective of deliberative theory a black box: the internal processes of constitutional courts. Mendes is more of a systematizer and presenter of taxonomies than a purveyor of simple answers. His language waxes metaphorical, even sometimes lyrical. By asking the questions he does, Mendes encourages us to probe the roles and possibilities of deliberation on multi-member courts."
Table of Contents:
Introduction
Political deliberation and collective decision-making
Political deliberation and legal decision-making
Political deliberation and constitutional scrutiny
Deliberative performance of constitutional courts
The ethics of political deliberation
Institutional design: augmenting deliberative potential
The legal backdrop of constitutional scrutiny
The political circumstances of constitutional scrutiny
No heroic court, no heroic judges
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