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

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.

ACKNOWLEDGEMENTS

I am grateful to Cristina Parau and Oliver Gerstenberg for their very helpful comments on an early draft of this article.

Notes

1. As Rawls notes, there is no purely personal ‘private’ reason, so even these reasons are ‘social’. However, they are not ‘public’ in his sense of addressing other members of society in their guise as fellow citizens, as opposed to say fellow believers.

Additional information

Richard Bellamy is the incoming Director of the Max Weber Programme at the European University Institute, where he is also a professor in the Department of Social and Political Science, on extended leave from his position as Professor of Political Science at University College London. His many publications include Liberalism and Pluralism: Towards a Politics of Compromise (Routledge, 1999) and Political Constitutionalism: A Republican Defence of the Constitutionality of Democracy (Cambridge University Press, 2007). He currently holds a Leverhulme Research Fellowship and is a Fellow at the Hanse-Wissenschaftkolleg (HWK), where he is completing a book on A Republic of European States for Cambridge University Press.