Constitutional Courts and Deliberative Democracy


Author: Conrado Mendes
Publisher: Oxford University Press
ISBN: 0199670455
Category: Law
Page: 249
View: 4160
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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.

The Law of Deliberative Democracy


Author: Ron Levy,Graeme Orr
Publisher: Routledge
ISBN: 1134502060
Category: Law
Page: 249
View: 2048
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Laws have colonised most of the corners of political practice, and now substantially determine the process and even the product of democracy. Yet analysis of these laws of politics has been hobbled by a limited set of theories about politics. Largely absent is the perspective of deliberative democracy – a rising theme in political studies that seeks a more rational, cooperative, informed, and truly democratic politics. Legal and political scholarship often view each other in reductive terms. This book breaks through such caricatures to provide the first full-length examination of whether and how the law of politics can match deliberative democratic ideals. Essential reading for those interested in either law or politics, the book presents a challenging critique of laws governing electoral politics in the English-speaking world. Judges often act as spoilers, vetoing or naively reshaping schemes meant to enhance deliberation. This pattern testifies to deliberation’s weak penetration into legal consciousness. It is also a fault of deliberative democracy scholarship itself, which says little about how deliberation connects with the actual practice of law. Superficially, the law of politics and deliberative democracy appear starkly incompatible. Yet, after laying out this critique, The Law of Deliberative Democracy considers prospects for reform. The book contends that the conflict between law and public deliberation is not inevitable: it results from judicial and legislative choices. An extended, original analysis demonstrates how lawyers and deliberativists can engage with each other to bridge their two solitudes.

Constitutional Fragments

Societal Constitutionalism and Globalization
Author: Gunther Teubner
Publisher: Oxford University Press
ISBN: 0199644675
Category: Law
Page: 213
View: 5639
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The powerful private sectors of the world economy remain largely unconstrained by fundamental constitutional rules, leading to human rights abuses on a massive scale. This book examines how the values of constitutional governance can be applied to the private sphere in the modern world, through a network of constitutional fragments.

Constituting Economic and Social Rights


Author: Katharine G. Young
Publisher: Oxford University Press on Demand
ISBN: 0199641935
Category: Law
Page: 355
View: 2180
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This book will appeal to are range of constitutional and public legal scholars and practitioners, and will appeal to both audiences of human rights practice, and those following legal theory. First, the book presents a breakthrough in constitutional argument about economic and social rights, long debated in constitutional rights scholarship and public law. It provides an important collection of comparative developments, new analytical constructs, and contemporarydevelopments in rights theory. Second, the book draws on comparative constitutional law to inform and develop debates in international human rights law. This audience will learn how new approaches to interpretation, enforcement, adjudication, justiciability, and deliberation, may advanceinternational and transnational human rights advocacy, argument and reasoning. Third, the book informs the interdisciplinary debates of food, health care, housing, education and water law.

Europe's Functional Constitution

A Theory of Constitutionalism Beyond the State
Author: Turkuler Isiksel
Publisher: Oxford University Press
ISBN: 0191076872
Category: Law
Page: 280
View: 1130
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Constitutionalism has become a byword for legitimate government, but is it fated to lose its relevance as constitutional states relinquish power to international institutions? This book evaluates the extent to which constitutionalism, as an empirical idea and normative ideal, can be adapted to institutions beyond the state by surveying the sophisticated legal and political system of the European Union. Having originated in a series of agreements between states, the EU has acquired important constitutional features like judicial review, protections for individual rights, and a hierarchy of norms. Nonetheless, it confounds traditional models of constitutional rule to the extent that its claim to authority rests on the promise of economic prosperity and technocratic competence rather than on the democratic will of citizens. Critically appraising the European Union and its legal system, this book proposes the idea of 'functional constitutionalism' to describe this distinctive configuration of public power. Although the EU is the most advanced instance of functional constitutionalism to date, understanding this pragmatic mode of constitutional authority is essential for assessing contemporary international economic governance.

Securing Constitutional Democracy

The Case of Autonomy
Author: James E. Fleming
Publisher: University of Chicago Press
ISBN: 0226253430
Category: Law
Page: 335
View: 4606
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Famously described by Louis Brandeis as "the most comprehensive of rights" and 'the right most valued by civilized men," the right of privacy or autonomy is more embattled during modern times than any other. Debate over its meaning, scope, and constitutional status is so widespread that it all but defines the post-1960s era of constitutional interpretation. Conservative Robert Bork called it "a loose canon in the law," while feminist Catharine MacKinnon attacked it as the “right of men to be left alone to oppress women.” Can a right with such prominent critics from across the political spectrum be grounded in constitutional law? In this book, James Fleming responds to these controversies by arguing that the right to privacy or autonomy should be grounded in a theory of securing constitutional democracy. His framework seeks to secure the basic liberties that are preconditions for deliberative democracy—to allow citizens to deliberate about the institutions and policies of their government—as well as deliberative autonomy—to enable citizens to deliberate about the conduct of their own lives. Together, Fleming shows, these two preconditions can afford everyone the status of free and equal citizenship in our morally pluralistic constitutional democracy.

Democratic Dialogue and the Constitution


Author: Alison L Young
Publisher: Oxford University Press
ISBN: 0191086282
Category: Law
Page: 400
View: 7501
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Constitutions divide into those that provide for a constitutionally protected set of rights, where courts can strike down legislation, and those where rights are protected predominantly by parliament, where courts can interpret legislation to protect rights, but cannot strike down legislation. The UK's Human Rights Act 1998 is regarded as an example of a commonwealth model of rights protections. It is justified as a new form of protection of rights which promotes dialogue between the legislature and the courts - dialogue being seen not just as a better means of protecting rights, but as a new form of constitutionalism occupying a middle ground between legal and political constitutionalism. This book argues that there is no clear middle ground for dialogue to occupy, with most theories of legal and political constitutionalism combining legal and political protections, as well as providing an account of interactions between the legislature and the judiciary. Nevertheless, dialogue has a role to play. It differs from legal and political constitutionalism in terms of the assumptions on which it is based and the questions it asks. It focuses on analysing mechanisms of inter-institutional interactions, and assessing when these interactions can provide a better protection of rights, facilitate deliberation, engage citizens and act as an effective check and balance between institutions of the constitution. This book evaluates dialogue in the UK constitution, assessing the protection of human rights through the Human Rights Act 1998, the common law and EU law. It also evaluates court-court dialogue between the UK court and the European Court of Justice and the European Court of Human Rights. The conclusion evaluates the implications of the proposed British Bill of Rights and the referendum decision to leave the European Union.

The Constitutional State


Author: Nicholas William Barber
Publisher: Oxford University Press
ISBN: 0199585016
Category: Law
Page: 199
View: 4052
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The Constitutional State provides an original account of the nature of the state and its constitution. This account casts light on some of the central puzzles faced by writers on constitutions - such as the possibility of states to undertake actions and form intentions, and the moral significance of these actions for the state's citizens.

Constitutional Referendums

The Theory and Practice of Republican Deliberation
Author: Stephen Tierney
Publisher: OUP Oxford
ISBN: 0191629081
Category: Law
Page: 352
View: 2843
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The use of referendums around the world has grown remarkably in the past thirty years and, in particular, referendums are today deployed more than ever in the settlement of constitutional questions, even in countries with little or no tradition of direct democracy. This is the first book by a constitutional theorist to address the implications of this development for constitutional democracy in a globalizing age, when many of the older certainties surrounding sovereignty and constitutional authority are coming under scrutiny. The book identifies four substantive constitutional processes where the referendum is regularly used today: the founding of new states; the creation or amendment of constitutions; the establishment of complex new models of sub-state autonomy, particularly in multinational states; and the transfer of sovereign powers from European states to the European Union. The book, as a study in constitutional theory, addresses the challenges this phenomenon poses not only for particular constitutional orders, which are typically structured around a representative model of democracy, but for constitutional theory more broadly. The main theoretical focus of the book is the relationship between the referendum and democracy. It addresses the standard criticisms which the referendum is subjected to by democratic theorists and deploys both civic republican theory and the recent turn in deliberative democracy to ask whether by good process-design the constitutional referendum is capable of facilitating the engagement of citizens in deliberative acts of constitution-making. With the referendum firmly established as a fixture of contemporary constitutionalism, the book addresses the key question for constitutional theorists and practitioners of how might its operation be made more democratic in age of constitutional transformation.

Designing Democracy

What Constitutions Do
Author: Cass R. Sunstein
Publisher: Oxford University Press on Demand
ISBN: 9780195158403
Category: Law
Page: 280
View: 9224
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All democracies face intense political conflict, but is this conflict necessarily something to fear? In this provocative book, one of our leading political and legal theorists reveals how a nation's divisions of conviction and belief can be used to safeguard democracy.

Beyond the People

Social Imaginary and Constituent Imagination
Author: Zoran Oklopcic
Publisher: Oxford University Press
ISBN: 0192519840
Category: Law
Page: 432
View: 2923
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Beyond the People develops a provocative, interdisciplinary, and meta-theoretical critique of the idea of popular sovereignty. It asks simple but far-reaching questions: Can 'imagined' communities, or 'invented' peoples, ever be theorized without, at the same time, being re-imagined and re-invented anew? Can polemical concepts, such as popular sovereignty or constituent power, be theorized objectively? If, as this book argues, the answer to these questions is no, theorists who approach the figure of a sovereign people must acknowledge that their activity is inseparable from the practice of constituent imagination. Though widely accepted as important, even vital, for the development of political concepts, the social practice of imagination is almost always presumed to operate either historically or impersonally, but seldom individually. Those who theorize the figures of popular sovereignty do not see that they are, in effect, 'conjurors' of peoplehood. This book invites constitutional, international, normative, and other political and legal theorists of sovereign peoplehood to embrace the conjuring-side of their professional identities, as a way of exploring the possibility of moving beyond eternally recurring, insolvable, and increasingly irrelevant questions. Instead of asking: Who is the people? What is the function of constituent power? Where may the people exercise its right to self-determination? Beyond the People asks the reader to consider the prospect of a riskier and more adventurous theoretical road, that opens with the question: What do I as a 'theorist-imaginer', or 'conjuror of peoplehood', assume, anticipate, and aspire to as I theorize the vehicles that mediate the assumptions, anticipations, and aspirations of others? This question is examined throughout the book as it interrogates the idea of peoplehood beyond disciplinary boundaries, showing how polemical, visual, affective, conceptual, and allegorical language critically shapes our idea of peoplehood. It offers a nuanced account of the contested relationship between the social imaginary of peoplehood on the ground, and the imaginative practices of the professional 'conjurors' of peoplehood in the academy.

Beyond Constitutionalism

The Pluralist Structure of Postnational Law
Author: Nico Krisch
Publisher: OUP Oxford
ISBN: 0191637262
Category: Law
Page: 384
View: 2349
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Under pressure from globalisation, the classical distinction between domestic and international law has become increasingly blurred, spurring demand for new paradigms to construe the emerging postnational legal order. The typical response of constitutional and international lawyers as well as political theorists has been to extend domestic concepts - especially constitutionalism - beyond the state. Yet as this book argues, proposals for postnational constitutionalism not only fail to provide a plausible account of the changing shape of postnational law but also fall short as a normative vision. They either dilute constitutionalism's origins and appeal to 'fit' the postnational space; or they create tensions with the radical diversity of postnational society. This book explores an alternative, pluralist vision of postnational law. Pluralism does not rely on an overarching legal framework but is characterised by the heterarchical interaction of various suborders of different levels - an interaction that is governed by a multiplicity of conflict rules whose mutual relationship remains legally open. A pluralist model can account for the fragmented structure of the European and global legal orders and it reflects the competing (and often equally legitimate) claims for control of postnational politics. However, it typically provokes concerns about stability, power and the rule of law. This book analyses the promise and problems of pluralism through a theoretical enquiry and empirical research on major global governance regimes, including the European human rights regime, the contestation around UN sanctions and human rights, and the structure of global risk regulation. The empirical research reveals how prevalent pluralist structures are in postnational law and what advantages they possess over constitutionalist models. Despite the problems it also reveals, the analysis suggests cautious optimism about the possibility of stable and fair cooperation in pluralist settings.

Constitutionalism

Past, Present, and Future
Author: Dieter Grimm
Publisher: Oxford University Press
ISBN: 0191090964
Category: Law
Page: 320
View: 4837
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Constitutionalism: Past, Present, and Future will offer a definitive collection of Professor Dieter Grimm's most important scholarly writings on constitutional thought and interpretation. The essays included in this volume explore the conditions under which the modern constitution could emerge; they treat the characteristics that must be given if the constitution may be called an achievement, the appropriate way to understand and interpret constitutional law under current conditions, the function of judicial review, the remaining role of national constitutions in a changing world, as well as the possibility of supra-national constitutionalism. Many of these essays have influenced the German and European discussion on constitutionalism and for the first time, much of the work of one of German's leading scholars of public law will be available in the English language.

The Cultural Defense of Nations

A Liberal Theory of Majority Rights
Author: Liav Orgad
Publisher: Oxford University Press
ISBN: 019164644X
Category: Law
Page: 280
View: 3609
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The changing patterns of contemporary immigration have initiated a new form of majority nationalism. In recent years, liberal democracies have introduced immigration and citizenship policies that are designed to defend the majority culture. This trend is fed by fears of immigration-some justified, some paranoid-which explain the rise of extreme right-wing parties in the West. Liberal theory and human rights law seem to be out of sync with these developments. While they recognize the rights of minority groups to maintain their cultural identity, it is typically assumed that majority groups have neither a need for similar rights nor a moral basis for defending them. The majority culture, so the argument goes, "can take care of itself." This singular book shifts the focus from the prevailing discussion of minority rights and, for the first time, directly addresses the cultural rights of majorities. The findings reveal a troubling trend in liberal democracies, which, ironically, in order to protect liberal values, violate the very same values. The book criticizes this state of affairs and presents a liberal theory of cultural defense that distinguishes between justifiable and unjustifiable attempts by majorities to protect their cultural essentials. It formulates liberal standards by which liberal states can welcome immigrants without fundamentally changing their cultural heritage, forsaking their liberal traditions, or slipping into extreme nationalism.

The Oxford Handbook of Deliberative Democracy


Author: André Bächtiger,John S. Dryzek,Jane Mansbridge,Mark E. Warren
Publisher: Oxford University Press
ISBN: 0191064572
Category: Political Science
Page: 816
View: 4557
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Deliberative democracy has been one of the main games in contemporary political theory for two decades, growing enormously in size and importance in political science and many other disciplines. The Oxford Handbook of Deliberative Democracy takes stock of deliberative democracy as a research field, in philosophy, in various research programmes in the social sciences and law, and in political practice around the globe. It provides a concise history of deliberative ideals in political thought and discusses their philosophical origins. The Handbook locates deliberation in political systems with different spaces, publics, and venues, including parliaments, courts, governance networks, protests, mini-publics, old and new media, and everyday talk. It engages with practical applications, mapping deliberation as a reform movement and as a device for conflict resolution, documenting the practice and study of deliberative democracy around the world and in global governance.

Sovereignty's Promise

The State as Fiduciary
Author: Evan Fox-Decent
Publisher: Oxford University Press
ISBN: 0199698317
Category: Law
Page: 283
View: 8912
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Arguing that the state and its people stand in a fiduciary relationship, Sovereignty's Promise puts forward a bold new account of political authority and its legal limits. In doing so it presents a fresh argument for common law constitutionalism and a novel theoretical framework for understanding the requirements of the rule of law.

Popular Sovereignty in Early Modern Constitutional Thought


Author: Daniel Lee
Publisher: Oxford University Press
ISBN: 0191062456
Category: Law
Page: 375
View: 8349
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Popular sovereignty - the doctrine that the public powers of state originate in a concessive grant of power from 'the people' - is perhaps the cardinal doctrine of modern constitutional theory, placing full constitutional authority in the people at large, rather than in the hands of judges, kings, or a political elite. Although its classic formulation is to be found in the major theoretical treatments of the modern state, such as in the treatises of Hobbes, Locke, and Rousseau, this book explores the intellectual origins of this doctrine and investigates its chief source in late medieval and early modern thought. Long regarded the principal source for modern legal reasoning, Roman law had a profound impact on the major architects of popular sovereignty such as François Hotman, Jean Bodin, and Hugo Grotius. Adopting the juridical language of obligations, property, and personality as well as the model of the Roman constitution, these jurists crafted a uniform theory that located the right of sovereignty in the people at large as the legal owners of state authority. In recovering the origins of popular sovereignty, the book demonstrates the importance of the Roman law as a chief source of modern constitutional thought.

The Alchemists

Questioning our Faith in Courts as Democracy-Builders
Author: Tom Gerald Daly
Publisher: Cambridge University Press
ISBN: 1108287190
Category: Law
Page: N.A
View: 2098
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Can courts really build democracy in a state emerging from authoritarian rule? This book presents a searching critique of the contemporary global model of democracy-building for post-authoritarian states, arguing that it places excessive reliance on courts. Since 1945, both constitutional courts and international human rights courts have been increasingly perceived as alchemists, capable of transmuting the base materials of a nascent democracy into the gold of a functioning democratic system. By charting the development of this model, and critically analysing the evidence and claims for courts as democracy-builders, this book argues that the decades-long trend toward ever greater reliance on courts is based as much on faith as fact, and can often be counter-productive. Offering a sustained corrective to unrealistic perceptions of courts as democracy-builders, the book points the way toward a much needed rethinking of democracy-building models and a re-evaluation of how we employ courts in this role.

After Public Law


Author: Cormac Mac Amhlaigh,Claudio Michelon,Neil Walker
Publisher: OUP Oxford
ISBN: 0191648000
Category: Law
Page: 328
View: 9842
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Public law has been conceived in many different ways, sometimes overlapping, often conflicting. However in recent years a common theme running through the discussions of public law is one of loss. What function and future can public law have in this rapidly transforming landscape, where globalized states and supranational institutions have ever-increasing importance? The contributions to this volume take stock of the idea, concepts, and values of public law as it has developed alongside the growth of the modern state, and assess its continued usefulness as a distinct area of legal inquiry and normativity in light of various historical trends and contemporary pressures affecting the global configuration of law in general. Divided into three parts, the first provides a conceptual, philosophical, and historical understanding of the nature of public law, the nature of private law and the relationship between the public, the private, and the concept of law. The second part focuses on the domains, values, and functions of public law in contemporary (state) legal practice, as seen, in part, through its relationship with private domains, values, and functions. The final part engages with the new legal scholarship on global transformation, analysing the changes in public law at the national level, including the new forms of interpenetration of public and private in the market state, as well as exploring the ubiquitous use of public law values and concepts beyond the state.

Constitutional Justice, East and West

Democratic Legitimacy and Constitutional Courts in Post-Communist Europe in a Comparative Perspective
Author: Wojciech Sadurski
Publisher: Springer Science & Business Media
ISBN: 9789041118837
Category: Philosophy
Page: 453
View: 2790
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How can the power of constitutional judges to overturn parliamentary choices on the basis of their own reading of the constitution, be reconciled with fundamental democratic principles which assign the supreme role in the political system to parliaments? This time-honoured question acquired a new significance when the post-commumst countries of Central and Eastern Europe, without exception, adopted constitutional models in which constitutional courts play a very significant role, at least in theory. Can we learn something about the relationship between democracy and constitutionalism in general, from the meteoric rise of constitutional tribunals in the post-communist countries? Can the discussions and controversies relating to constitutional review which have been going on for decades in more established democracies illuminate the sources of the strength of constitutional courts in Central and Eastern Europe? These questions lie at the center of this book, which focuses on the question of constitutional review in postcommunist states, from a theoretical and comparative perspective. The chapters contained in the book outline the conceptual framework for analyzing the sources, the role and the legitimacy of constitutional justice in a system of political democracy. From this perspective, it assesses the experience of constitutional justice in the West (where the model originated) and in Central and Eastern Europe, where the model has been implanted after the fail of Communism.