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

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

Author: Thomas Bustamante; Bernardo Goncalves Fernandes
Publisher: Springer-Verlag
ISBN: 9783319283692
Published In: April 2016
Format: Hardback
Jurisdiction: Switzerland ? Disclaimer:
Countri(es) stated herein are used as reference only

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This volume critically discusses the relationship between democracy and constitutionalism. It does so with a view to respond to objections raised by legal and political philosophers who are sceptical of judicial review based on the assumption that judicial review is an undemocratic institution.

The book builds on earlier literature on the moral justification of the authority of constitutional courts, and on the current attempts to develop a system on "weak judicial review". Although different in their approach, the chapters all focus on devising institutions, procedures and, in a more abstract way, normative conceptions to democratize constitutional law. These democratizing strategies may vary from a radical objection to the institution of judicial review, to a more modest proposal to justify the authority of constitutional courts in their "deliberative performance" or to create constitutional juries that may be more aware of a community's constitutional morality than constitutional courts are.

The book connects abstract theoretical discussions about the moral justification of constitutionalism with concrete problems, such as the relation between constitutional adjudication and deliberative democracy, the legitimacy of judicial review in international institutions, the need to create new institutions to democratize constitutionalism, the connections between philosophical conceptions and constitutional practices, the judicial review of constitutional amendments, and the criticism on strong judicial review.

I Challenging and Defending Judicial Review.

1. Randomized Judicial Review

Andrei Marmor.

2. On the Difficulty to Ground the Authority of Constitutional Courts: Can Strong Judicial Review be Morally Justified?

Thomas Bustamante.

3. The Reasons without Vote: The Representative and Majoritarian Function of Constitutional Courts

Luis Roberto Barroso.

II Constitutional Dialogues and Constitutional Deliberation.

4. Decoupling Judicial Review From Judicial Supremacy

Stephen Gardbaum.

5. Scope and limits of dialogic constitutionalism

Roberto Gargarella.