constitutional courts and deliberative democracy oxford constitutional theory

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Constitutional Courts And Deliberative Democracy

Author : Conrado Mendes
ISBN : 9780199670451
Genre : Law
File Size : 78. 15 MB
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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.

Carl Schmitt S State And Constitutional Theory

Author : Benjamin Schupmann
ISBN : 9780192509314
Genre : Law
File Size : 42. 69 MB
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Can a constitutional democracy commit suicide? Can an illiberal antidemocratic party legitimately obtain power through democratic elections and amend liberalism and democracy out of the constitution entirely? In Weimar Germany, these theoretical questions were both practically and existentially relevant. By 1932, the Nazi and Communist parties combined held a majority of seats in parliament. Neither accepted the legitimacy of liberal democracy. Their only reason for participating democratically was to amend the constitution out of existence. This book analyses Carl Schmitt's state and constitutional theory and shows how it was conceived in response to the Weimar crisis. Right-wing and left-wing political extremists recognized that a path to legal revolution lay in the Weimar constitution's combination of democratic procedures, total neutrality toward political goals, and positive law. Schmitt's writings sought to address the unique problems posed by mass democracy. Schmitt's thought anticipated 'constrained' or 'militant' democracy, a type of constitution that guards against subversive expressions of popular sovereignty and whose mechanisms include the entrenchment of basic constitutional commitments and party bans. Schmitt's state and constitutional theory remains important: the problems he identified continue to exist within liberal democratic states. Schmitt offers democrats today a novel way to understand the legitimacy of liberal democracy and the limits of constitutional change.

Voices At Work

Author : Alan Bogg
ISBN : 9780191505669
Genre : Law
File Size : 51. 34 MB
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This edited collection is the culmination of a comparative project on 'Voices at Work' funded by the Leverhulme Trust 2010 - 2013. The book aims to shed light on the problematic concept of worker 'voice' by tracking its evolution and its complex interactions with various forms of law. Contributors to the volume identify the scope for continuity of legal approaches to voice and the potential for change in a sample of industrialised English speaking common law countries, namely Australia, Canada, New Zealand, UK, and USA. These countries, facing broadly similar regulatory dilemmas, have often sought to borrow and adapt certain legal mechanisms from one another. The variance in the outcomes of any attempts at 'borrowing' seems to demonstrate that, despite apparent membership of a 'common law' family, there are significant differences between industrial systems and constitutional traditions, thereby casting doubt on the notion that there are definitive legal solutions which can be applied through transplantation. Instead, it seems worth studying the diverse possibilities for worker voice offered in divergent contexts, not only through traditional forms of labour law, but also such disciplines as competition law, human rights law, international law and public law. In this way, the comparative study highlights a rich multiplicity of institutions and locations of worker voice, configured in a variety of ways across the English-speaking common law world. This book comprises contributions from many leading scholars of labour law, politics and industrial relations drawn from across the jurisdictions, and is therefore an exceedingly comprehensive comparative study. It is addressed to academics, policymakers, legal practitioners, legislative drafters, trade unions and interest groups alike. Additionally, while offering a critique of existing laws, this book proposes alternative legal tools to promote engagement with a multitude of 'voices' at work and therefore foster the effective deployment of law in industrial relations.

Constitutional Violence

Author : Antoni Abat i Ninet
ISBN : 9780748675371
Genre : True Crime
File Size : 55. 58 MB
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Western political systems tend to be 'constitutional democracies', dividing the system into a domain of politics, where the people rule, and a domain of law, set aside for a trained elite. Antoni Abat i Ninet strives to resolve these apparently exclusive

Designing Democracy

Author : Cass R. Sunstein
ISBN : 0195158407
Genre : Law
File Size : 60. 55 MB
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A fresh examination of constitutionalism is presented by one of the nation's most respected legal scholars.

Where Our Protection Lies

Author : Dimitrios Kyritsis
ISBN : 9780199672257
Genre : Law
File Size : 86. 11 MB
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In this book Dimitrios Kyritsis advances an original account of constitutional review of primary legislation for its compatibility with human rights. Key to it is the value of separation of powers. When the relationship between courts and the legislature realizes this value, it makes a stronger claim to moral legitimacy. Kyritsis steers a path between the two extremes of the sceptics and the enthusiasts. Against sceptics who claim that constitutional review is an affront to democracy he argues that it is a morally legitimate institutional option for democratic societies because it can provide an effective check on the legislature. Although the latter represents the people and should thus be given the initiative in designing government policy, it carries serious risks, which institutional design must seek to avert. Against enthusiasts he maintains that fundamental rights protection is not the exclusive province of courts but the responsibility of both the judiciary and the legislature. Although courts may sometimes be given the power to scrutinize legislation and even strike it down, if it violates human rights, they must also respect the legislature's important contribution to their joint project. Occasionally, they may even have a duty to defer to morally sub-optimal decisions, as far as rights protection is concerned. This is as it should be. Legitimacy demands less than the ideal. In turn, citizens ought to accept discounts on perfect justice for the sake of achieving a reasonably just and effective political order overall.

Encyclopedia Of Democratic Thought

Author : Paul Barry Clarke
ISBN : 9781136908637
Genre : Political Science
File Size : 66. 37 MB
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Containing almost 200 entries from 'accountability' to the 'Westminster model' the Encyclopedia of Democratic Thought explores all the ideas that matter to democracy past, present and future. It is destined to become the first port-of-call for all students, teachers and researchers of political science interested in democratic ideas, democratic practice, and the quality of democratic governance. The Encyclopedia provides extensive coverage of all the key concepts of democratic thought written by a stellar team of distinguished international contributors. The Encyclopedia draws on every tradition of democratic thought, as well as developing new thinking, in order to provide full coverage of the key democratic concepts and engage with their practical implications for the conduct of democratic politics in the world today. In this way, it brings every kind of democratic thinking to bear on the challenges facing contemporary democracies and on the possibilities of the democratic future. The Encyclopedia is global in scope and responds in detail to the democratic revolution of recent decades. Referring both to the established democratic states of Western Europe, North America and Australasia, and to the recent democracies of Latin America, Eastern and Central Europe, Africa and Asia, classical democratic concerns are related to new democracies, and to important changes in the older democracies. Supplemented by full bibliographical information, extensive cross-referencing and suggestions for further reading, the Encyclopedia of Democratic Thought is a unique work of reference combining the expertise of many of the world's leading political scientists, political sociologists and political philosophers. It will be welcomed as an essential resource for both teaching and for independent study, and as a solid starting point both for further research and wider exploration.

Euroconstitutionalism And Its Discontents

Author : Oliver Gerstenberg
ISBN : 9780198834335
Genre : Constitutional law
File Size : 24. 99 MB
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This book addresses the question of social constitutionalism, especially with regard to its role in the contemporary European project. For reasons of history and democracy, Europeans share a deep commitment to social constitutionalism. But in the contemporary European constitutional debate, constitutionalism and social democracy have become antagonists, with the survival of the one seeming to require sacrifice of the other. This book challenges the common view that constitutionalization means de-politicization. It argues that courts can exert a more indirect, creative, and agenda-setting role in the process of an ongoing clarification of the meaning of a right. The CJEU and the ECtHR - as courts beyond the nation state - are able to constructively re-open and re-politicize controversies that may appear settled at the national level in their constitutionalizing jurisprudence. And, crucially, our understanding of shared European constitutional principles is itself subject to revision and reconsideration as we accumulate experiences of dealing with diverse national contexts. By examining the jurisprudence of the CJEU and the ECtHR, the book demonstrates that in domain after domain, ranging from the protection of the vulnerable in the European social market to the guarantee of freedom of conscience, which in Europe emerged after many centuries of religious persecution, both courts can enhance and deepen democracy and thereby encourage the liberal project of constitutionalism beyond the state. Over time, once interpretive answers have become established in practice, courts can then move towards stronger forms of judicial intervention that consolidate best practice. It is this democratic and experimental process which lies at the heart of the distinctive model of contemporary Euroconstitutionalism.

The Language Of Liberal Constitutionalism

Author : Howard Schweber
ISBN : 9781139462594
Genre : Philosophy
File Size : 29. 21 MB
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This book explores two basic questions regarding constitutional theory. First, in view of a commitment to democratic self-rule and widespread disagreement on questions of value, how is the creation of a legitimate constitutional regime possible? Second, what must be true about a constitution if the regime that it supports is to retain its claim to legitimacy? Howard Schweber shows that the answers to these questions appear in a theory of constitutional language that combines democratic theory with constitutional philosophy. The creation of a legitimate constitutional regime depends on a shared commitment to a particular and specialized form of language. Out of this simple observation, Schweber develops arguments about the characteristics of constitutional language, the necessary differences between constitutional language and the language of ordinary law or morality, as well as the authority of officials such as judges to engage in constitutional review of laws.

Law And Democracy

Author : Tom Campbell
ISBN : STANFORD:36105060713125
Genre : Law
File Size : 45. 75 MB
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This collection represents the body of captivating literature that is engaged not only with current developments in law and politics but also with the rediscovery of traditional theories. It offers a way into an engaging and important debate that bears of the most fundamental issues within both legal and political theory.

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