Judicial review by constitutional courts is often presented as a necessary supplement to democracy. This book questions its effectiveness and legitimacy. Drawing on the republican tradition, Richard Bellamy argues that the democratic mechanisms of open elections between competing parties and decision-making by majority rule offer superior and sufficient methods for upholding rights and the rule of law. The absence of popular accountability renders judicial review a form of arbitrary rule which lacks the incentive structure democracy provides to ensure rulers treat the ruled with equal concern and respect. Rights based judicial review undermines the constitutionality of democracy. Its counter-majoritarian bias promotes privileged against unprivileged minorities, while its legalism and focus on individual cases distort public debate. Rather than constraining democracy with written constitutions and greater judicial oversight, attention should be paid to improving democratic processes through such measures as reformed electoral systems and enhanced parliamentary scrutiny.
Judicial review by constitutional courts is often presented as a necessary supplement to democracy. This book questions its effectiveness and legitimacy. Drawing on the republican tradition, Richard Bellamy argues that the democratic mechanisms of open elections between competing parties and decision-making by majority rule offer superior and sufficient methods for upholding rights and the rule of law. The absence of popular accountability renders judicial review a form of arbitrary rule which lacks the incentive structure democracy provides to ensure rulers treat the ruled with equal concern and respect. Rights based judicial review undermines the constitutionality of democracy. Its counter-majoritarian bias promotes privileged against unprivileged minorities, while its legalism and focus on individual cases distort public debate. Rather than constraining democracy with written constitutions and greater judicial oversight, attention should be paid to improving democratic processes through such measures as reformed electoral systems and enhanced parliamentary scrutiny.
Über den Autor
Richard Bellamy is Director of the Max Weber Programme at the EUI and Professor of Political Science, University College London (UCL), University of London. Recent publications include Liberalism and Pluralism: Towards a Politics of Compromise (Routledge, 1999), Rethinking Liberalism (Continuum, 2000, 2005), Political Constitutionalism: A Republican Defence of the Constitutionality of Democracy (Cambridge University Press, 2007), Citizenship: A Very Short Introduction (Oxford University Press, 2008), Croce, Gramsci, Bobbio and the Italian Political Tradition (ECPR Press, 2014) and (as co-editor) The Cambridge History of Twentieth Century Political Thought (Cambridge University Press, 2003), Lineages of European Citizenship (Palgrave, 2004) and Making European Citizens (Palgrave, 2006). His A European Republic of Sovereign States is forthcoming from Cambridge University Press.
Zusammenfassung
Judicial review by constitutional courts is often presented as a necessary supplement to democracy. Richard Bellamy argues that rights based judicial review undermines the constitutionality of democracy. Drawing on the republican tradition, he questions the effectiveness and legitimacy of judicial review by constitutional courts. He suggests that existing democratic systems, involving open elections between competing parties and decision-making by majority rule, offer superior and sufficient methods for protecting and promoting rights. By contrast, judicial review lacks popular accountability and is thus a form of arbitrary rule.
Inhaltsverzeichnis
Introduction; Part I. Legal Constitutionalism: 1. Constitutional rights and the limits of judicial review; 2. The rule of law and the rule of persons; 3. Constitutionalism and democracy; Part II. Political Constitutionalism: 4. The norms of political constitutionalism: non-domination and political equality; 5. The forms of political constitutionalism: public reason and the balance of power; 6. Bringing together norms and forms: the democratic constitution; Conclusion.
