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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 favor 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.
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 favor 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.
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About the Author:
Conrado Hubner Mendes, Professor-Doctor of Constitutional Law, University of Sao Paulo,
Conrado Hubner Mendes is Professor-Doctor of Constitutional Law at the University of Sao Paulo (USP). He holds a PhD in legal theory at the University of Edinburgh and a PhD in political science at the University of Sao Paulo (USP).
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Winner of 2014 Brazilian Political Science Association's Victor Nunes Leal Prize
Conrado Hubner Mendes, Professor-Doctor of Constitutional Law, University of Sao Paulo,
Conrado Hubner Mendes is Professor-Doctor of Constitutional Law at the University of Sao Paulo (USP). He holds a PhD in legal theory at the University of Edinburgh and a PhD in political science at the University of Sao Paulo (USP).
Winner of 2014 Brazilian Political Science Association's Victor Nunes Leal Prize
"About this title" may belong to another edition of this title.
- PublisherOxford University Press
- Publication date2014
- ISBN 10 0199670455
- ISBN 13 9780199670451
- BindingHardcover
- Number of pages272
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Constitutional Courts and Deliberative Democracy (Oxford Constitutional Theory)
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Oxford University Press
(2014)
ISBN 10: 0199670455
ISBN 13: 9780199670451
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Constitutional Courts and Deliberative Democracy
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Book Description Gebunden. Condition: New. Dieser Artikel ist ein Print on Demand Artikel und wird nach Ihrer Bestellung fuer Sie gedruckt. 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 . Seller Inventory # 594431367
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