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THE DEMOCRATIC QUALITIES OF COURTS: A CRITICAL ANALYSIS OF THREE ARGUMENTS

Bellamy, R; (2013) THE DEMOCRATIC QUALITIES OF COURTS: A CRITICAL ANALYSIS OF THREE ARGUMENTS. Representation , 49 (3) 333 - 346. 10.1080/00344893.2013.830485. Green open access

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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. © 2013 © 2013 McDougall Trust, London.

Type: Article
Title: THE DEMOCRATIC QUALITIES OF COURTS: A CRITICAL ANALYSIS OF THREE ARGUMENTS
Open access status: An open access version is available from UCL Discovery
DOI: 10.1080/00344893.2013.830485
Publisher version: http://dx.doi.org/10.1080/00344893.2013.830485
Language: English
Additional information: # 2013 The Author(s). Published by Taylor & Francis. This is an Open Access article distributed under the terms of the Creative Commons Attribution License (http://creativecommons.org/licenses/by/3.0), which permits unrestricted use, distribution, and reproduction in any medium, provided the original work is properly cited. The moral rights of the named author(s) have been asserted.
UCL classification: UCL
UCL > Provost and Vice Provost Offices > UCL SLASH
UCL > Provost and Vice Provost Offices > UCL SLASH > Faculty of S&HS
UCL > Provost and Vice Provost Offices > UCL SLASH > Faculty of S&HS > Dept of Political Science
URI: https://discovery.ucl.ac.uk/id/eprint/1418263
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