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Constitutional Courts and Deliberative Democracy

Constitutional Courts and Deliberative Democracy

作者： Conrado Mendes
出版商： Oxford University Press
ISBN: 9780198759454
出版时间 October 2015
规格： Paperback , 272 pages
适应领域： U.K. ? 免责申明：
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- Provides the first sustained analysis of the claim that courts are superior to legislatures as a forum for rational deliberation
- Introduces deliberative theory and its implications for institutional design
- Proposes a new way of understanding the legitimacy of judicial review within the framework of deliberative theory
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.

Readership: This book would suit academics of constitutional law, judial politics and democratic theory.
Introduction
1: Political deliberation and collective decision-making
2: Political deliberation and legal decision-making
3: Political deliberation and constitutional scrutiny
4: Deliberative performance of constitutional courts
5: The ethics of political deliberation
6: Institutional design: augmenting deliberative potential
7: The legal backdrop of constitutional scrutiny
8: The political circumstances of constitutional scrutiny
9: No heroic court, no heroic judges
Conrado Hübner Mendes is Assistant Professor of Law at the University of São Paulo (USP). He holds a PhD in legal theory at the University of Edinburgh and a PhD in political science at the University of São Paulo (USP).

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