Download Democratizing Constitutional Law: Perspectives on Legal by Thomas Bustamante, Bernardo Gonçalves Fernandes PDF

By Thomas Bustamante, Bernardo Gonçalves Fernandes

This quantity severely discusses the connection among democracy and constitutionalism. It does so so as to reply to objections raised by way of felony and political philosophers who're sceptical of judicial evaluation in keeping with the idea that judicial evaluate is an undemocratic establishment. The booklet builds on past literature at the ethical justification of the authority of constitutional courts, and at the present makes an attempt to enhance a process on “weak judicial review”. even though various of their strategy, the chapters all specialise in devising associations, approaches and, in a extra summary means, normative conceptions to democratize constitutional legislations. those democratizing suggestions could range from an intensive objection to the establishment of judicial assessment, to a extra modest idea to justify the authority of constitutional courts of their “deliberative functionality” or to create constitutional juries which may be extra conscious of a community’s constitutional morality than constitutional courts are. The booklet connects summary theoretical discussions in regards to the ethical justification of constitutionalism with concrete difficulties, resembling the relation among constitutional adjudication and deliberative democracy, the legitimacy of judicial evaluate in overseas associations, the necessity to create new associations to democratize constitutionalism, the connections among philosophical conceptions and constitutional practices, the judicial overview of constitutional amendments, and the feedback on robust judicial review.

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Extra resources for Democratizing Constitutional Law: Perspectives on Legal Theory and the Legitimacy of Constitutionalism

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Though this feature presupposes a positivistic account of law, insofar as the content of a legal norm must be ascertained without resource to a moral argument, it also establishes an important connection between the concepts of de facto or effective authority and de jure or legitimate authority. To have effective authority the law must both ‘claim that it possesses legitimate authority’ and be ‘capable of possessing legitimate authority’ (Raz 1994a, 215). The explanation of effective authority requires that of legitimate authority, since a person has effective authority ‘only if the people over whom he has that authority regard him as a legitimate authority’ (Raz 2009b, 28).

Remember that we could easily shift the argument from RJR to RJR*: If the unconstitutionality of a proposed piece of legislation is entirely on the surface, in no plausible legal doubt, legislatures would not have the political incentive to go ahead with the legislation. It is difficult to gain political traction with measures that are obviously and transparently unconstitutional. Populist pressure tends to build up around measures that seem constitutional to some, though not to others. Legislators tend to push for enactments that they can present as passing constitutional muster with some, even if strained, plausibility.

Perhaps somewhat greater uncertainty is to be expected under RJR compared with CJR. But even so, remember that the numbers here are very small. Only a very small number of laws and regulations get struck down as unconstitutional every year; it amounts to a tiny fraction of legislative and administrative output. Furthermore, even if the level of uncertainly with RJR is somewhat higher, we gain something in terms of fairness. Thus, overall, it is not clear that RJR fares much worse compared with CJR on the overall metrics of the rule of law.

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