Constitutional Courts and Deliberative Democracy

Paperback | November 8, 2015

byConrado Hubner Mendes

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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 bestinstitutional 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 claimsthat 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 madein support of judicial power on the basis of deliberative theory.

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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 bestinstitutional translation of a "government of the pe...

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).
Format:PaperbackDimensions:272 pages, 9.21 × 6.14 × 0.54 inPublished:November 8, 2015Publisher:Oxford University PressLanguage:English

The following ISBNs are associated with this title:

ISBN - 10:0198759452

ISBN - 13:9780198759454

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Table of Contents

Introduction1. Political deliberation and collective decision-making2. Political deliberation and legal decision-making3. Political deliberation and constitutional scrutiny4. Deliberative performance of constitutional courts5. The ethics of political deliberation6. Institutional design: augmenting deliberative potential7. The legal backdrop of constitutional scrutiny8. The political circumstances of constitutional scrutiny9. No heroic court, no heroic judges

Editorial Reviews

"Constitutional Courts and Deliberative Democracy is an inestimable contribution to explain what a 'forum of principle' or a 'dialogue' between powers entail and to provide a critical account of the ethical virtues, the facilitators, the legal constraints, and the political circumstances ofjudicial deliberation." --Thomas Bustamante , Modern Law Review