Rule of Law vs Majoritarian Democracy
Rule of Law vs Majoritarian Democracy

Author: Giuliano Amato

Publisher: Bloomsbury Publishing

Published: 2021-08-26

Total Pages: 479

ISBN-13: 1509936858

DOWNLOAD EBOOK

What is more paradoxically democratic than a people exercising their vote against the harbingers of the rule of law and democracy? What happens when the will of the people and the rule of law are at odds? Some commentators note that the presence of illiberal political movements in the public arena of many Western countries demonstrates that their democracy is so inclusive and alive that it comprehends and countenances even undemocratic forces and political agendas. But what if, on the contrary, these were the signs of the deconsolidation of democracy instead of its good health? What if democratically elected regimes were to ignore constitutional principles representing the rule of law and the limits of their power? With contributions from judges and scholars from different backgrounds and nationalities this book explores the framework in which this tension currently takes place in several Western countries by focusing on four key themes: - The Rule of Law: presenting a historical and theoretical reconstruction of the evolution of the Rule of Law; - The People: dealing with a set of problems around the notion of 'people' and the forces claiming to represent their voice; - Democracy and its enemies: tackling a variety of phenomena impacting on the traditional democratic balance of powers and institutional order; - Elected and Non-Elected: focusing on the juxtaposition between judges (and, more generally, non-representative bodies) and the people's representation.

Rule of Law vs Majoritarian Democracy
Rule of Law vs Majoritarian Democracy

Author: Giuliano Amato

Publisher: Bloomsbury Publishing

Published: 2021-08-26

Total Pages: 425

ISBN-13: 1509936866

DOWNLOAD EBOOK

What is more paradoxically democratic than a people exercising their vote against the harbingers of the rule of law and democracy? What happens when the will of the people and the rule of law are at odds? Some commentators note that the presence of illiberal political movements in the public arena of many Western countries demonstrates that their democracy is so inclusive and alive that it comprehends and countenances even undemocratic forces and political agendas. But what if, on the contrary, these were the signs of the deconsolidation of democracy instead of its good health? What if democratically elected regimes were to ignore constitutional principles representing the rule of law and the limits of their power? With contributions from judges and scholars from different backgrounds and nationalities this book explores the framework in which this tension currently takes place in several Western countries by focusing on four key themes: - The Rule of Law: presenting a historical and theoretical reconstruction of the evolution of the Rule of Law; - The People: dealing with a set of problems around the notion of 'people' and the forces claiming to represent their voice; - Democracy and its enemies: tackling a variety of phenomena impacting on the traditional democratic balance of powers and institutional order; - Elected and Non-Elected: focusing on the juxtaposition between judges (and, more generally, non-representative bodies) and the people's representation.

Democracy and the Rule of Law
Democracy and the Rule of Law

Author: Adam Przeworski

Publisher: Cambridge University Press

Published: 2003-07-21

Total Pages: 338

ISBN-13: 9780521532662

DOWNLOAD EBOOK

This book addresses the question of why governments sometimes follow the law and other times choose to evade the law. The traditional answer of jurists has been that laws have an autonomous causal efficacy: law rules when actions follow anterior norms; the relation between laws and actions is one of obedience, obligation, or compliance. Contrary to this conception, the authors defend a positive interpretation where the rule of law results from the strategic choices of relevant actors. Rule of law is just one possible outcome in which political actors process their conflicts using whatever resources they can muster: only when these actors seek to resolve their conflicts by recourse to la, does law rule. What distinguishes 'rule-of-law' as an institutional equilibrium from 'rule-by-law' is the distribution of power. The former emerges when no one group is strong enough to dominate the others and when the many use institutions to promote their interest.

First Democracy
First Democracy

Author: Paul Woodruff

Publisher: Oxford University Press

Published: 2006-03-16

Total Pages: 301

ISBN-13: 0195304543

DOWNLOAD EBOOK

This brilliant analysis of the nature of democracy draws on the hard-earned lessons of the ancient Greeks.

Judicial Power
Judicial Power

Author: Christine Landfried

Publisher: Cambridge University Press

Published: 2019-02-07

Total Pages: 411

ISBN-13: 1316999084

DOWNLOAD EBOOK

The power of national and transnational constitutional courts to issue binding rulings in interpreting the constitution or an international treaty has been endlessly discussed. What does it mean for democratic governance that non-elected judges influence politics and policies? The authors of Judicial Power - legal scholars, political scientists, and judges - take a fresh look at this problem. To date, research has concentrated on the legitimacy, or the effectiveness, or specific decision-making methods of constitutional courts. By contrast, the authors here explore the relationship among these three factors. This book presents the hypothesis that judicial review allows for a method of reflecting on social integration that differs from political methods, and, precisely because of the difference between judicial and political decision-making, strengthens democratic governance. This hypothesis is tested in case studies on the role of constitutional courts in political transformations, on the methods of these courts, and on transnational judicial interactions.

Legitimacy
Legitimacy

Author: Arthur Isak Applbaum

Publisher: Harvard University Press

Published: 2019-11-19

Total Pages: 305

ISBN-13: 0674983467

DOWNLOAD EBOOK

At an unsettled time for liberal democracy, with global eruptions of authoritarian and arbitrary rule, here is one of the first full-fledged philosophical accounts of what makes governments legitimate. What makes a government legitimate? The dominant view is that public officials have the right to rule us, even if they are unfair or unfit, as long as they gain power through procedures traceable to the consent of the governed. In this rigorous and timely study, Arthur Isak Applbaum argues that adherence to procedure is not enough: even a properly chosen government does not rule legitimately if it fails to protect basic rights, to treat its citizens as political equals, or to act coherently. How are we to reconcile every person’s entitlement to freedom with the necessity of coercive law? Applbaum’s answer is that a government legitimately governs its citizens only if the government is a free group agent constituted by free citizens. To be a such a group agent, a government must uphold three principles. The liberty principle, requiring that the basic rights of citizens be secured, is necessary to protect against inhumanity, a tyranny in practice. The equality principle, requiring that citizens have equal say in selecting who governs, is necessary to protect against despotism, a tyranny in title. The agency principle, requiring that a government’s actions reflect its decisions and its decisions reflect its reasons, is necessary to protect against wantonism, a tyranny of unreason. Today, Applbaum writes, the greatest threat to the established democracies is neither inhumanity nor despotism but wantonism, the domination of citizens by incoherent, inconstant, and incontinent rulers. A government that cannot govern itself cannot legitimately govern others.

Majority Decisions
Majority Decisions

Author: Stéphanie Novak

Publisher: Cambridge University Press

Published: 2014-06-30

Total Pages: 271

ISBN-13: 1107054095

DOWNLOAD EBOOK

This book presents the most complete set of analytical, normative, and historical discussions of majority decision making to date. One chapter critically addresses the social-choice approach to majority decisions, whereas another presents an alternative to that approach. Extensive case studies discuss majority voting in the choice of religion in early modern Switzerland, majority voting in nested assemblies such as the French Estates-General and the Federal Convention, majority voting in federally organized countries, qualified majority voting in the European Union Council of Ministers, and majority voting on juries. Other chapters address the relation between majority decisions and cognitive diversity, the causal origin of majority decisions, and the pathologies of majority decision making. Two chapters, finally, discuss the counter-majoritarian role of courts that exercise judicial review. The editorial Introduction surveys conceptual, causal, and normative issues that arise in the theory and practice of majority decisions.

The Oxford Handbook of Populism
The Oxford Handbook of Populism

Author: Cristóbal Rovira Kaltwasser

Publisher: Oxford University Press

Published: 2017

Total Pages: 737

ISBN-13: 0198803567

DOWNLOAD EBOOK

The Oxford Handbook of Populism presents the state of the art of research on populism from the perspective of Political Science. The book features work from the leading experts in the field, and synthesizes the main strands of research in four compact sections: concepts, issues, regions, and normative debates. Due to its breath, The Oxford Handbook of Populism is an invaluable resource for those interested in the study of populism, but also forexperts in each of the topics discussed, who will benefit from accounts of current discussions and research gaps, as well as a map of new directions in the study of populism.

Our Republican Constitution
Our Republican Constitution

Author: Randy E. Barnett

Publisher: HarperCollins

Published: 2016-04-19

Total Pages: 226

ISBN-13: 0062412302

DOWNLOAD EBOOK

A concise history of the long struggle between two fundamentally opposing constitutional traditions, from one of the nation’s leading constitutional scholars—a manifesto for renewing our constitutional republic. The Constitution of the United States begins with the words: “We the People.” But from the earliest days of the American republic, there have been two competing notions of “the People,” which lead to two very different visions of the Constitution. Those who view “We the People” collectively think popular sovereignty resides in the people as a group, which leads them to favor a “democratic” constitution that allows the “will of the people” to be expressed by majority rule. In contrast, those who think popular sovereignty resides in the people as individuals contend that a “republican” constitution is needed to secure the pre-existing inalienable rights of “We the People,” each and every one, against abuses by the majority. In Our Republican Constitution, renowned legal scholar Randy E. Barnett tells the fascinating story of how this debate arose shortly after the Revolution, leading to the adoption of a new and innovative “republican” constitution; and how the struggle over slavery led to its completion by a newly formed Republican Party. Yet soon thereafter, progressive academics and activists urged the courts to remake our Republican Constitution into a democratic one by ignoring key passes of its text. Eventually, the courts complied. Drawing from his deep knowledge of constitutional law and history, as well as his experience litigating on behalf of medical marijuana and against Obamacare, Barnett explains why “We the People” would greatly benefit from the renewal of our Republican Constitution, and how this can be accomplished in the courts and the political arena.

EU Values Before the Court of Justice
EU Values Before the Court of Justice

Author: Luke Dimitrios Spieker

Publisher: Oxford University Press

Published: 2023-06-18

Total Pages: 385

ISBN-13: 0198876734

DOWNLOAD EBOOK

The European Union's values - enshrined in Article 2 TEU - have come under severe pressure in several Member States. In response, the Court of Justice has set a spectacular development in motion. With its ruling in Associação Sindical dos Juízes Portugueses it activated the Union's common values and positioned Article 2 TEU at the very heart of its jurisprudence. Turning Article 2 TEU into an operational, judicially applicable provision, the Court has begun to assess the Member States' constitutional structures against these yardsticks. Since then, the jurisprudence has evolved with remarkable speed. EU Values Before the Court of Justice provides a first comprehensive study of the judicial mobilisation of Article 2 TEU. It starts by developing the foundations of this emerging jurisprudence in empirical, doctrinal, and theoretical terms. In this book, Spieker seeks to advance a new understanding of Article 2. He argues that the provision should be understood as having a dual character that resonates between two dimensions, namely an EU dimension limited to the EU legal order and a 'Verbund' dimension that extends to the common whole of the Union and its Member States. Article 2 plays different roles in these two spheres - as thick constitutional core of the EU legal order and as thin constitutional frame for the 'Verbund'. This dual character should guide the provision's future judicial development. The book sets out to explore the multifaceted potential of Article 2 TEU in each of these two dimensions. As such, it goes far beyond the current focus on illiberal developments in Member States and strives to broaden our horizon for the judicial mobilisation of EU values. The book closes by assessing the risks of placing an activated Article 2 into the hands of Luxembourg judges and proposes ways to recalibrate the jurisprudence.