The positive claim that majoritarian democracy is necessarily non-dominating, for the reason that it expresses an equality of status among citizens, seems to overlook the fact that discriminatory legislation, especially if directed against discrete and insular minorities, may well amount to a denial of equal status even where all have an equal vote. The view seems to draw its force from the implicit assumption that we are talking about a democratic process that meets a threshold of sufficient integrity. But the opponent of legal constitutionalism, as we have seen, is not entitled simply to assume that all political systems that are democratic in a purely procedural sense automatically meet that threshold.
Needless to say, if the question were simply whether we should be ruled by the courts of by our elected representatives, most of us would opt for the latter.
Political constitutionalism: a republican defence of the constitutionality of democracy
But one would have to offer a much deeper discussion of legal constitutionalist conceptions of the separation of powers than Bellamy cares to provide to show that we are entitled to think of the role of constitutional courts in democratic polities in such simplistic terms. Even if there is no written constitution and no supreme court endowed with the power to strike down statutory law, courts will still have to be charged with the interpretation and application of laws.
It will not do to reply to this objection that a judge can avoid moral decision through adopting a policy of deciding as other judges would if they had to decide the same case. But this condition is unlikely to hold in societies characterized by profound moral disagreement, as critics of judicial review like Waldron never tire of pointing out. Finally, there are ways of defending judicial review from a republican perspective that Bellamy fails to recognize.
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His argument assumes that there is only one possible basis for the claim that judicial review may help to protect citizens against domination, namely the idea that judges have access to some higher form of moral wisdom which allows them to rectify substantively arbitrary outcomes of the legislative process. Such access would allow us to choose the procedure that is most reliable in bringing about results that are already known to be correct.
But without it the only remaining standard for assessing procedure, Bellamy claims, is the question whether the procedure gives everyone an equal say. Beck, , first published We have good reason to believe, for instance, that the procedural requirements of the criminal process enhance its epistemic reliability even without having any prior access to the set of correct outcomes. Similarly, we may well have good reason to believe that certain features of a democratic procedure of legislation will tend to reduce the danger of substantively arbitrary outcomes even while we lack prior access to an agreed-upon and fully worked-out theory of rights of the common-good.
Early defenders of electoral democracy frequently stressed the point that democratic enfranchisement will tend to prevent substantively arbitrary legislative outcomes simply by forcing the legislator to take account of the interests of the public at large, and not just of those of a small ruling elite. The claim that legislative outcomes are less likely to be substantively arbitrary in a democracy than in an autocracy, then, does not have to rely on prior access to an uncontroversial conception of the moral correctness of legislative outcomes.
There may well be good reasons to believe that the institution of constitutional review can help to prevent arbitrary exercises of power that do not depend on prior access to an uncontroversial theory of correct outcomes. One obvious candidate for such a reason is the expectation that the possibility of appeal to a constitutional tribunal will reduce the danger of a tyranny of the majority, a danger that Bellamy tends to dismiss in too cavalier a fashion.
But the question needs to be considered, not dismissed on the basis of flawed assumptions about the available standards for institutional design.
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However, legal constitutionalist readers of Political Constitutionalism are unlikely to arrive at the conclusion that they should abandon their views. It will require an attack of higher argumentative quality to drive a stake through the heart of legal constitutionalism.
Related Papers. By Lars Vinx. A rejoinder to Richard Bellamy On the republican core of the case for judicial review. By Tom Hickey. Its uncommon grasp of both theoretical argument and the empirical complexity of actual political systems makes this book a major contribution to the debate on how democracy can be renewed and the current flight from politics arrested.
Political Constitutionalism - Richard Bellamy - Häftad () | Bokus
Providing a robust defence and, indeed, celebration of political constitutionalism Professor Bellamy simultaneously explains what's wrong with legal constitutionalism and offers a valuable corrective to errors in some recent republican writing, which has failed to see that it is to democratic politics, and not to the courts of law, that we must primarily look to secure the republican values of popular sovereignty and non-domination.
Coming at a time of considerable constitutional flux in both Britain and the European Union, Political Constitutionalism will be essential reading for political theorists and constitutional lawyers alike. It is a major contribution to the debate over democracy and constitutionalism. Richard Bellamy argues from the institutional record that we should put our faith in electoral rather than legal process. He offers a powerful challenge that none of us can ignore.
And along the way he provides a masterful overview of recent debates around this crucial issue. The author's claims are defended by an array of forceful arguments, clearly He is the author of five books, numerous articles and book chapters and has edited over 20 volumes including The Cambridge History of Twentieth Century Political Thought with Terence Ball, Cambridge, and editions of Beccaria and Gramsci in the Cambridge Texts in the History of Political Thought series.
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