The democratic qualities of courts : a critical analysis of three arguments
License
Access Rights
Cadmus Permanent Link
Full-text via DOI
ISBN
ISSN
0034-4893; 1749-4001
Issue Date
Type of Publication
Keyword(s)
LC Subject Heading
Other Topic(s)
EUI Research Cluster(s)
Initial version
Published version
Succeeding version
Preceding version
Published version part
Earlier different version
Initial format
Author(s)
Citation
Representation, 2013, Vol. 49, No. 3, pp. 333-346
Cite
BELLAMY, Richard (Richard Paul), The democratic qualities of courts : a critical analysis of three arguments, Representation, 2013, Vol. 49, No. 3, pp. 333-346 - https://hdl.handle.net/1814/32375
Abstract
The democratic critique of judicial review by constitutional courts has prompted its defenders to counter that courts have democratic qualities as good as, and in certain respects even stronger than, conventional democratic politics. This article offers a critical analysis of three arguments favouring this approach. The first argues that constitutional courts operate as exemplars of democratic deliberation. In particular, they give expression to the public reasons underlying democracy and ensure democratic practice does not subvert its ideals. The second holds that rights-based litigation offers a form of democratic participation, providing a voice to those who might have been excluded from electoral democracy. The third contends that judges operate in a similar way to elected representatives, who are best conceived as trustees rather than as delegates. All three views are found wanting. Courts do possess certain limited democratic qualities. However, they are not intrinsic features of courts themselves. They arise from their being dependent upon rather than independent from the conventional democratic process.