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Deliberative Democracy and the Institutions of Judicial Review

Author: Christopher F. Zurn

Publisher: Cambridge University Press

Published: 2007-03-26

Total Pages: 14

ISBN-13: 1139464388

In this book, Christopher F. Zurn shows why a normative theory of deliberative democratic constitutionalism yields the best understanding of the legitimacy of constitutional review. He further argues that this function should be institutionalized in a complex, multi-location structure including not only independent constitutional courts but also legislative and executive self-review that would enable interbranch constitutional dialogue and constitutional amendment through deliberative civic constitutional forums. Drawing on sustained critical analyses of diverse pluralist and deliberative democratic arguments concerning the legitimacy of judicial review, Zurn concludes that constitutional review is necessary to ensure the procedural requirements for legitimate democratic self-rule through deliberative cooperation. Claiming that pure normative theory is not sufficient to settle issues of institutional design, Zurn draws on empirical and comparative research to propose reformed institutions of constitutional review that encourage the development of fundamental law as an ongoing project of democratic deliberation and decision.

Judicial Review and Contemporary Democratic Theory

Author: Scott E. Lemieux

Publisher: Routledge

Published: 2017-11-03

Total Pages: 296

ISBN-13: 1351602128

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For decades, the question of judicial review’s status in a democratic political system has been adjudicated through the framework of what Alexander Bickel labeled "the counter-majoritarian difficulty." That is, the idea that judicial review is particularly problematic for democracy because it opposes the will of the majority. Judicial Review and Contemporary Democratic Theory begins with an assessment of the empirical and theoretical flaws of this framework, and an account of the ways in which this framework has hindered meaningful investigation into judicial review’s value within a democratic political system. To replace the counter-majoritarian difficulty framework, Scott E. Lemieux and David J. Watkins draw on recent work in democratic theory emphasizing democracy’s opposition to domination and analyses of constitutional court cases in the United States, Canada, and elsewhere to examine judicial review in its institutional and political context. Developing democratic criteria for veto points in a democratic system and comparing them to each other against these criteria, Lemieux and Watkins yield fresh insights into judicial review’s democratic value. This book is essential reading for students of law and courts, judicial politics, legal theory and constitutional law.

Constitutional Courts and Deliberative Democracy

Author: Conrado Mendes

Publisher: Oxford University Press

Published: 2013-12

Total Pages: 274

ISBN-13: 0199670455

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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.

Deliberative Democracy in America

Author: Ethan J. Leib

Publisher: Penn State Press

Published: 2010-11-01

Total Pages: 188

ISBN-13: 9780271045290

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We are taught in civics class that the Constitution provides for three basic branches of government: executive, judicial, and legislative. While the President and Congress as elected by popular vote are representative, can they really reflect accurately the will and sentiment of the populace? Or do money and power dominate everyday politics to the detriment of true self-governance? Is there a way to put &"We the people&" back into government? Ethan Leib thinks there is and offers this blueprint for a fourth branch of government as a way of giving the people a voice of their own. While drawing on the rich theoretical literature about deliberative democracy, Leib concentrates on designing an institutional scheme for embedding deliberation in the practice of American democratic government. At the heart of his scheme is a process for the adjudication of issues of public policy by assemblies of randomly selected citizens convened to debate and vote on the issues, resulting in the enactment of laws subject both to judicial review and to possible veto by the executive and legislative branches. The &"popular&" branch would fulfill a purpose similar to the ballot initiative and referendum but avoid the shortcomings associated with those forms of direct democracy. Leib takes special pains to show how this new branch would be integrated with the already existing governmental and political institutions of our society, including administrative agencies and political parties, and would thus complement rather than supplant them.

The Law of Deliberative Democracy

Author: Ron Levy

Publisher: Routledge

Published: 2016-11-03

Total Pages: 271

ISBN-13: 1134502060

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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.

Democracy Without Shortcuts

Author: Cristina Lafont

Publisher: Oxford University Press, USA

Published: 2020-01-12

Total Pages: 279

ISBN-13: 0198848188

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This book articulates a participatory conception of deliberative democracy that takes the democratic ideal of self-government seriously. It aims to improve citizens' democratic control and vindicate the value of citizens' participation against conceptions that threaten to undermine it. The book critically analyzes deep pluralist, epistocratic, and lottocratic conceptions of democracy. Their defenders propose various institutional ''shortcuts'' to help solve problems of democratic governance such as overcoming disagreements, citizens' political ignorance, or poor-quality deliberation. However, all these shortcut proposals require citizens to blindly defer to actors over whose decisions they cannot exercise control. Implementing such proposals would therefore undermine democracy. Moreover, it seems naive to assume that a community can reach better outcomes 'faster' if it bypasses the beliefs and attitudes of its citizens. Unfortunately, there are no 'shortcuts' to make a community better than its members. The only road to better outcomes is the long, participatory road that is taken when citizens forge a collective will by changing one another's hearts and minds. However difficult the process of justifying political decisions to one another may be, skipping it cannot get us any closer to the democratic ideal. Starting from this conviction, the book defends a conception of democracy ''without shortcuts''. This conception sheds new light on long-standing debates about the proper scope of public reason, the role of religion in politics, and the democratic legitimacy of judicial review. It also proposes new ways to unleash the democratic potential of institutional innovations such as deliberative minipublics.

Deliberative Democracy and Its Discontents

Author: Samantha Besson

Publisher: Ashgate Publishing, Ltd.

Published: 2006

Total Pages: 312

ISBN-13: 9780754626275

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Drawing on political, legal, national, post-national, as well as American and European perspectives, this collection of essays offers a diverse and balanced discussion of the current arguments concerning deliberative democracy. The essays consider the thr

Deliberative Freedom

Author: Christian F. Rostboll

Publisher: State University of New York Press

Published: 2008-06-13

Total Pages: 324

ISBN-13: 079147822X

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In Deliberative Freedom, Christian F. Rostbøll accepts the common belief that democracy and freedom are intimately related, but he sees this relationship in a new and challenging way. Rostbøll argues that deliberative democracy is normatively committed to multiple dimensions of freedom, and that this, in turn, makes it a distinct model of democracy. He presents a new version of deliberative democracy that rejects the prevailing synthesis of Habermasian critical theory and Rawlsian political liberalism, and contends that this synthesis obscures and neglects important concerns in terms of freedom and emancipation. In addition, Rostbøll explores how the many dimensions of freedom supply a new and fruitful way to address issues such as paternalism, elitism, rationalism, and neutrality.

Democratizing Constitutional Law

Author: Thomas Bustamante

Publisher: Springer

Published: 2016-04-19

Total Pages: 328

ISBN-13: 3319283715

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This volume critically discusses the relationship between democracy and constitutionalism. It does so with a view to respond to objections raised by legal and political philosophers who are sceptical of judicial review based on the assumption that judicial review is an undemocratic institution. The book builds on earlier literature on the moral justification of the authority of constitutional courts, and on the current attempts to develop a system on “weak judicial review”. Although different in their approach, the chapters all focus on devising institutions, procedures and, in a more abstract way, normative conceptions to democratize constitutional law. These democratizing strategies may vary from a radical objection to the institution of judicial review, to a more modest proposal to justify the authority of constitutional courts in their “deliberative performance” or to create constitutional juries that may be more aware of a community’s constitutional morality than constitutional courts are. The book connects abstract theoretical discussions about the moral justification of constitutionalism with concrete problems, such as the relation between constitutional adjudication and deliberative democracy, the legitimacy of judicial review in international institutions, the need to create new institutions to democratize constitutionalism, the connections between philosophical conceptions and constitutional practices, the judicial review of constitutional amendments, and the criticism on strong judicial review.

The Constitution of Deliberative Democracy

Author: Carlos Santiago Nino

Publisher: Yale University Press

Published: 1996-01-01

Total Pages: 268

ISBN-13: 9780300077278

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In this important and wide-ranging book, a leading political theorist and activist considers the question: What justifies democracy? Carlos Santiago Nino critically examines answers others have given and then develops his own distinctive theory of democracy, emphasizing its deliberative character. In Nino's view, democracy resembles a moral conversation and is valued because of its capacity to generate an impartial perspective, one that takes into account the interests of all citizens. Nino's conception of deliberative democracy bears on the way power is organized under a constitution. Drawing on a variety of constitutional traditions, he criticizes the presidential system and calls for citizens to participate more directly in the political life of their country. He also envisions a revitalized role for political parties. Nino shows how deliberative democracy can be combined with, and supported by, other constitutional practices, such as the specific wording of the text and the protection of individual rights. The complex constitution that emerges from his analysis consists of a historical constitution, an ideal constitution of rights, and an ideal constitution of power. Nino's goal is to explain how these three dimensions of constitutionalism can reinforce rather than conflict with each other. In a final chapter, he argues that the deliberative conception of democracy requires a more limited role for judicial review than is usually contemplated.