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Democracy in the Courts: Lay Participation in European Criminal Justice Systems
by Marijke MalschDemocracy in the Courts examines lay participation in the administration of justice and how it reflects certain democratic principles. An international comparative perspective is taken for exploring how lay people are involved in the trial of criminal cases in European countries and how this impacts on their perspectives of the national legal systems. Comparisons between countries are made regarding how and to what extent lay participation takes place and the relation between lay participation and the legal system's legitimacy is analyzed. Presenting the results of interviews with both professional judges and lay participants in a number of European countries regarding their views on the involvement of lay people in the legal system, this book explores the ways in which judges and lay people interact while trying cases, examining the characteristics of both professional and lay judging of cases. Providing an important analysis of practice, this book will be of interest to academics, legal scholars and practitioners alike.
Democracy in the EMU in the Aftermath of the Crisis
by Luigi Daniele Pierluigi Simone Roberto CisottaThe book covers some of the major issues concerning the problematic relationship between respect for democratic principles and the new European Economic Governance. Innovative approaches are highlighted throughout the book: new frameworks and arrangements are proposed on the basis of efficiency analyses, as well as their institutional and legal suitability. Though the perspective adopted is essentially a legal one, the economic and policy background are also given due consideration.The papers presented here offer a balanced mix of empirical (including comparative) and theoretical analysis; several also combine the two approaches, carrying out empirical analyses, then setting the results against theoretical options. Given the relative dearth of literature on democratic principles and the EMU, let alone a comprehensive enquiry, the book marks a valuable new contribution.
Democracy in Times of Crises: Challenges, Problems and Policy Proposals
by Nicholas C. Kyriazis Emmanouil M.L. Economou Athanasios PlatiasInspired by the democratic origins of the Greek naval victory at Salamis, the book discusses the current pressing issues of democracy worldwide. In 12 carefully selected chapters, well-renowned scholars from around the globe discuss topics such as Brexit, Euroscepticism, or the rise of populism. The authors further analyze various aspects of democracy, as well as various types of democratic regimes, such as mixed government, direct democracy, and cases of quasi democracies. While doing so, they relate this discussion to the pivotal question of how the quality of democracy today can be improved, seeking answers and solutions to current pending problems at the global level. This book is the second out of two edited volumes as a sequel of an international academic conference titled Salamis and Democracy: 2500 Years After that took place between October 3rd and October 5th, 2020, on the occasion of the 2500th anniversary of the great historical event of the Battle of Salamis, which saved Greek culture and the newly founded democratic regimes throughout the Hellenic world during the Classical period (508-323 BCE). The book is a must-read for scholars and students of political science, economics, and law, as well as policy-makers interested in a better understanding of democracy, governance, populism, social choice, and constitutional law.
Democracy, Law and Governance
by Jacques Lenoble Marc MaesschalckDemocracy, Law and Governance details the transformation of the modes of governance of contemporary developed democracies and aims to define the conditions required for promoting public interest in their public policy. Firstly, the volume illustrates why a sound theoretical approach to the concept of law results in opening up the theory of law to the debate on governance in the social sciences. Secondly, it reconstructs the underpinnings of recent debate on governance, focusing on the pragmatist turn that has marked efforts to overcome the inadequacies of both the economic and the deliberative approaches. In fulfilling this second goal, it examines the advances yielded by the pragmatist turn as well as its limitations, and concludes by proposing a theoretical approach for dealing with them. This illuminating book applies recent research in both theory of law and theory of governance to deepen the analytic impact of the recent pragmatist revival.
Democracy, Law and Governance
by Jacques Lenoble Marc MaesschalckDemocracy, Law and Governance details the transformation of the modes of governance of contemporary developed democracies and aims to define the conditions required for promoting public interest in their public policy. Firstly, the volume illustrates why a sound theoretical approach to the concept of law results in opening up the theory of law to the debate on governance in the social sciences. Secondly, it reconstructs the underpinnings of recent debate on governance, focusing on the pragmatist turn that has marked efforts to overcome the inadequacies of both the economic and the deliberative approaches. In fulfilling this second goal, it examines the advances yielded by the pragmatist turn as well as its limitations, and concludes by proposing a theoretical approach for dealing with them. This illuminating book applies recent research in both theory of law and theory of governance to deepen the analytic impact of the recent pragmatist revival.
Democracy, Law and Security: Internal Security Services in Contemporary Europe
by Peter GillIn the past decade there have been significant changes in the operations of security and intelligence agencies throughout Europe. Those in the former Eastern Europe have undergone the most obvious changes in their targets and the legal context within which they operate, but these changes have affected all the agencies to some extent. It is these changes that will provide the context of structures and processes through which the agencies will respond to the September 11, 2001 attack on New York and Washington. This edited collection of papers by an international group of experts in the study of security and intelligence examines recent and current developments in the light of the rule of law and democracy and specifically addresses a number of common themes. Firstly, security and intelligence agencies are placed within the broader context of their parent state, including whether their powers originate in legislation or executive decree and the form of oversight. Secondly, the types of agency - civilian, military, foreign and domestic - are considered in the context of their historical development, including the transition from authoritarian to liberal state forms. Thirdly, the changes in their mandate and targets are discussed, in particular, towards 'terrorism', 'transnational organized crime' and economic intelligence. Finally, each author considers the enduring issue of how the impact of security and intelligence agencies is to be assessed in terms both of security and human rights. This book represents the first systematic attempt to present a collection of contemporary studies on the shifts in this crucial aspect of the operation of all states, and to do so within a framework of common themes. Although significant differences remain in the operation of security intelligence, all the authors highlight the common dilemmas that accompany the attempt to provide security but to do so democratically.
Democracy, Law and Security: Internal Security Services in Contemporary Europe
by Peter GillIn the past decade there have been significant changes in the operations of security and intelligence agencies throughout Europe. Those in the former Eastern Europe have undergone the most obvious changes in their targets and the legal context within which they operate, but these changes have affected all the agencies to some extent. It is these changes that will provide the context of structures and processes through which the agencies will respond to the September 11, 2001 attack on New York and Washington. This edited collection of papers by an international group of experts in the study of security and intelligence examines recent and current developments in the light of the rule of law and democracy and specifically addresses a number of common themes. Firstly, security and intelligence agencies are placed within the broader context of their parent state, including whether their powers originate in legislation or executive decree and the form of oversight. Secondly, the types of agency - civilian, military, foreign and domestic - are considered in the context of their historical development, including the transition from authoritarian to liberal state forms. Thirdly, the changes in their mandate and targets are discussed, in particular, towards 'terrorism', 'transnational organized crime' and economic intelligence. Finally, each author considers the enduring issue of how the impact of security and intelligence agencies is to be assessed in terms both of security and human rights. This book represents the first systematic attempt to present a collection of contemporary studies on the shifts in this crucial aspect of the operation of all states, and to do so within a framework of common themes. Although significant differences remain in the operation of security intelligence, all the authors highlight the common dilemmas that accompany the attempt to provide security but to do so democratically.
Democracy Online: The Prospects for Political Renewal Through the Internet
by Peter M. ShaneTaking a multidisciplinary approach that they identify as a "cyber-realist research agenda," the contributors to this volume examine the prospects for electronic democracy in terms of its form and practice--while avoiding the pitfall of treating the benefits of electronic democracy as being self-evident. The debates question what electronic democracy needs to accomplish in order to revitalize democracy and what the current state of electronic democracy can teach us about the challenges and opportunities for implementing democratic technology initiatives.
Democracy Online: The Prospects for Political Renewal Through the Internet
by Peter M. ShaneTaking a multidisciplinary approach that they identify as a "cyber-realist research agenda," the contributors to this volume examine the prospects for electronic democracy in terms of its form and practice--while avoiding the pitfall of treating the benefits of electronic democracy as being self-evident. The debates question what electronic democracy needs to accomplish in order to revitalize democracy and what the current state of electronic democracy can teach us about the challenges and opportunities for implementing democratic technology initiatives.
Democracy, Populism, and Truth (AMINTAPHIL: The Philosophical Foundations of Law and Justice #9)
by Mark Christopher Navin Richard NunanThis book tackles questions related to democracy, populism and truth, with results that are sure to inform pressing academic and popular debates. It is common to describe many of today’s most energizing politicians and political movements as populist. Some are progressive advocates of greater economic democracy or individual rights, while others are recognizably authoritarian and anti-democratic, even while claiming to defend democracy. What all populist leaders share in common is a rhetorical approach: their ability to articulate, or at least profess to channel, the wishes of ‘the people’, a group that populist leaders claim a unique ability to understand and govern, especially with regard to their dissatisfaction with ruling elites. They decry corruption (although not necessarily with any sincerity), and they sometimes identify more mainstream politicians and bureaucrats as ‘enemies of the people.’ The rise of populist politics raises pressing questions about the nature of populism, but also about relationships between populism and democratic institutions. For example, is populism ever a democratic tendency, or does its invocation of a monolithic demos (‘the people’) signify a fundamentally anti-democratic worldview? Populist political rhetoric also raises concerns about the relationship between truth, democracy, and journalistic integrity. While the history of anti-democratic advocacy (famously illustrated by Plato) has often highlighted the tendency of a democratic style of politics to prioritize popularity over truth, the development of social media—and evolving norms of journalistic communication and public political discourse—raise these misgivings in new forms.
Democracy, Protest and the Law: Defending a Democratic Right
by Michael HeadIn a new era of rising protests, social unrest and political discontent globally, especially over climate change, war dangers, austerity measures and social inequality, the right to protest is a critical democratic right. Yet it is increasingly controversial and subject to government reaction. This book poses a crucial question: how to defend and extend democracy? It examines the critical historical, social, political, ethical and legal issues raised by the basic democratic right to protest and the legislative and executive measures being taken by governments to restrict it. These measures are examined with a focus on three countries with an English legal heritage: the United States, Britain and Australia. These states are frequently held up as models of liberal democracies, respecting core legal and democratic rights. However, an examination shows that they have adopted far-reaching anti-protest laws and other provisions that threaten protest rights and genuine democracy itself. This book will be of interest to all members of society, as well as students, academics and policy-makers in the fields of civil liberties and human rights, constitutional law, criminal justice, national security and environmental studies.
Democracy, Protest and the Law: Defending a Democratic Right
by Michael HeadIn a new era of rising protests, social unrest and political discontent globally, especially over climate change, war dangers, austerity measures and social inequality, the right to protest is a critical democratic right. Yet it is increasingly controversial and subject to government reaction. This book poses a crucial question: how to defend and extend democracy? It examines the critical historical, social, political, ethical and legal issues raised by the basic democratic right to protest and the legislative and executive measures being taken by governments to restrict it. These measures are examined with a focus on three countries with an English legal heritage: the United States, Britain and Australia. These states are frequently held up as models of liberal democracies, respecting core legal and democratic rights. However, an examination shows that they have adopted far-reaching anti-protest laws and other provisions that threaten protest rights and genuine democracy itself. This book will be of interest to all members of society, as well as students, academics and policy-makers in the fields of civil liberties and human rights, constitutional law, criminal justice, national security and environmental studies.
Democracy, Religion, and Commerce: Private Markets and the Public Regulation of Religion (Law and Religion)
by Kathleen Flake Nathan B. OmanThis collection considers the relationship between religion, state, and market. In so doing, it also illustrates that the market is a powerful site for the cultural work of secularizing religious conflict. Though expressed as a simile, with religious freedom functioning like market freedom, “free market religion” has achieved the status of general knowledge about the nature of religion as either good or bad. It legislates good religion as that which operates according to free market principles: it is private, with no formal relationship to government; and personal: a matter of belief and conscience. As naturalized elements of historically contingent and discursively maintained beliefs about religion, these criteria have ethical and regulatory force. Thus, in culture and law, the effect of the metaphor has become instrumental, not merely descriptive. This volume seeks to productively complicate and invite further analysis of this easy conflation of democracy, religion, and the market. It invites scholars from a variety of disciplines to consider more intentionally the extent to which markets are implicated and illuminate the place of religion in public life. The book will be a valuable resource for researchers and academics working in the areas of law and religion, ethics, and economics.
Democracy, Religion, and Commerce: Private Markets and the Public Regulation of Religion (Law and Religion)
This collection considers the relationship between religion, state, and market. In so doing, it also illustrates that the market is a powerful site for the cultural work of secularizing religious conflict. Though expressed as a simile, with religious freedom functioning like market freedom, “free market religion” has achieved the status of general knowledge about the nature of religion as either good or bad. It legislates good religion as that which operates according to free market principles: it is private, with no formal relationship to government; and personal: a matter of belief and conscience. As naturalized elements of historically contingent and discursively maintained beliefs about religion, these criteria have ethical and regulatory force. Thus, in culture and law, the effect of the metaphor has become instrumental, not merely descriptive. This volume seeks to productively complicate and invite further analysis of this easy conflation of democracy, religion, and the market. It invites scholars from a variety of disciplines to consider more intentionally the extent to which markets are implicated and illuminate the place of religion in public life. The book will be a valuable resource for researchers and academics working in the areas of law and religion, ethics, and economics.
Democracy, Religious Pluralism and the Liberal Dilemma of Accommodation (Studies in Global Justice #7)
by Monica MookherjeeHow should liberal democratic governments respond to citizens as religious believers whose values, norms and practices might lie outside the cultural mainstream? Some of the most challenging political questions arising today focus on the adequacy of a policy of ‘live and let live’ liberal toleration in contexts where disputes about the metaphysical truth of conflicting world-views abound. Does liberal toleration fail to give all citizens their due? Do citizens of faith deserve a more robust form of accommodation from the state in the form of ‘recognition’. This issue is far from settled. Controversies over the terms of religious accommodation continue to dominate political agendas around the world. This is the first edited collection to provide a sustained examination of the politics of toleration and recognition in an age of religious pluralism. The aftermath of the events of September 11th have dramatised the urgency of this debate. It has also surfaced, nationally and globally, in disputes about terrorism, security and gender and human rights questions in relation to minority communities. This volume brings together a group of new and established scholars from the fields of law and philosophy, who all present fresh and challenging perspectives on an urgent debate. It will be indispensable reading for advanced researchers in political and legal philosophy, religious and cultural studies and related disciplines.
Democracy, Rights and Rhetoric in Southeast Asia (The Theories, Concepts and Practices of Democracy)
by Avery PooleSoutheast Asia is a vast, populous and diverse region. The Association of Southeast Asian Nations (ASEAN) promotes democracy and human rights as central to regional order and cooperation, but most members are not democratic and have poor or questionable human rights records. This book explores why Southeast Asian countries have collectively adopted the rhetoric of democracy and human rights, and argues that they are motivated by their concerns about external regional legitimacy. It analyses ASEAN’s references to democracy and the reality of backsliding in several countries; examines the adoption of human rights rhetoric; and considers the implications for how we understand regional cooperation. The book is relevant for students and analysts who are interested in regionalism in Southeast Asia and elsewhere – particularly given growing global concerns about liberal democracy and the gaps between rhetoric and political realities.
Democracy's Guardians: A History of the German Federal Constitutional Court, 1951-2001
by Justin CollingsIn its six-decade history, the German Federal Constitutional Court has become one of the most powerful and influential constitutional tribunals in the world. It has played a central role in the establishment of liberalism, democracy, and the rule of law in post-war West Germany, and it has been a model for constitutional tribunals in many other nations. The Court stands virtually unchallenged as the most trusted institution of the German state. Written as a complete history of the German Federal Constitutional Court from its founding in 1951 up into the twenty-first century, this book explores how the court became so powerful, and why so few can resist its strength. Founded in 1951, the Court took root in a pre-democratic political culture. The Court's earliest contributions were to help establish liberal values and fundamental rights protection in the young Federal Republic. The early Court also helped democratize West German politics by reinforcing rights of speech and information, affirming the legitimacy of parliamentary opposition, and checking executive power. In time, as democratic values took hold in the country at large, the Court's early role in nurturing liberalism and democracy led many West Germans to view the Court not as a constraint on democracy, but as a bulwark of democracy's preconditions. In later decades, the Court played a stabilizing role - mediating political conflicts and integrating societal forces. Citizens disenchanted with partisan politics looked to the Court as a guardian of enduring values and a source of moral legitimacy. Through a comprehensive narrative of the Court's remarkable rise and careful analysis of its periodic crises, the work carefully dissects the success of the Court, presenting not only a traditional work of legal history, but a public history - both political and societal - as well as a doctrinal and jurisprudential account. Structured around the Court's major decisions from 1951 to 2001, the book examines popular and political reactions to those decisions, drawing heavily on newspaper accounts of major judgments and material from the archives of individual politicians and judges. The result is an impressive case study of the global phenomenon of constitutional justice.
Democracy's Guardians: A History of the German Federal Constitutional Court, 1951-2001
by Justin CollingsIn its six-decade history, the German Federal Constitutional Court has become one of the most powerful and influential constitutional tribunals in the world. It has played a central role in the establishment of liberalism, democracy, and the rule of law in post-war West Germany, and it has been a model for constitutional tribunals in many other nations. The Court stands virtually unchallenged as the most trusted institution of the German state. Written as a complete history of the German Federal Constitutional Court from its founding in 1951 up into the twenty-first century, this book explores how the court became so powerful, and why so few can resist its strength. Founded in 1951, the Court took root in a pre-democratic political culture. The Court's earliest contributions were to help establish liberal values and fundamental rights protection in the young Federal Republic. The early Court also helped democratize West German politics by reinforcing rights of speech and information, affirming the legitimacy of parliamentary opposition, and checking executive power. In time, as democratic values took hold in the country at large, the Court's early role in nurturing liberalism and democracy led many West Germans to view the Court not as a constraint on democracy, but as a bulwark of democracy's preconditions. In later decades, the Court played a stabilizing role - mediating political conflicts and integrating societal forces. Citizens disenchanted with partisan politics looked to the Court as a guardian of enduring values and a source of moral legitimacy. Through a comprehensive narrative of the Court's remarkable rise and careful analysis of its periodic crises, the work carefully dissects the success of the Court, presenting not only a traditional work of legal history, but a public history - both political and societal - as well as a doctrinal and jurisprudential account. Structured around the Court's major decisions from 1951 to 2001, the book examines popular and political reactions to those decisions, drawing heavily on newspaper accounts of major judgments and material from the archives of individual politicians and judges. The result is an impressive case study of the global phenomenon of constitutional justice.
The Democratic Aspects of Trade Union Recognition
by Alan BoggWinner of the SLS Peter Birks Prize for Outstanding Legal Scholarship 2010.The long ascendancy of pluralism and 'collective laissez-faire' as a guiding ideology of British labour law was emphatically shattered by the New Right ideology of Thatcher and Major. When New Labour was finally returned to power in 1997, it did not, however, attempt to resurrect the pre-Thatcher preference for pluralist non-intervention in collective industrial relations. Instead, it purported to follow a 'Third Way'. A centrepiece of this new approach was the statutory recognition provision, introduced in Schedule A1 TULRCA 1992. By breaking with the tradition of voluntarism in respect of recognition of trade unions, New Labour sought to provide a model of collective labour law which combined legal support with control through juridification. A closer study of both the history of approaches to recognition and the current provisions opens up fundamental questions as to the nature of this new model and the ones it aimed to replace. This book uses political philosophy to elucidate the character of those historical approaches and the nature of the 'Third Way' itself in relation to statutory union recognition. In particular, it traces the progressive eclipse of civic republican values in labour law, in preference for a liberal political philosophy. The book articulates and defends a civic republican philosophy in terms of freedom as non-domination, the intrinsic value of democratic participation through deliberative democracy, and community. This can be contrasted with the rights-based individualism and State neutrality characteristic of the liberal approach. Despite the promise of civic community in the 'Third Way' rhetoric, this book demonstrates that the reality of New Labour's experiment in union recognition was an emphatic reassertion of liberalism in the sphere of workers' collective rights. This is the first monograph to offer a sustained critical analysis of legal approaches to trade union recognition. It will be of particular interest to labour lawyers, but also a wider audience of scholars in political philosophy and industrial relations.
Democratic Consolidation and Constitutional Endurance in Asia and Africa: Comparing Uneven Pathways
by Tom Gerald Daly and Dinesha SamararatneWhat factors drive constitutional change and sustain positive transformation? How are democratic values recognised, restored, and preserved through constitutional change? Democratic Consolidation and Constitutional Endurance in Asia and Africa is a well-articulated response to the growing scholarly conversation on democratic backsliding and resilience. Bringing together leading and emerging voices in constitutional law, this groundbreaking new collection considers recent democratising events in Ethiopia, The Gambia, Malaysia, Maldives, Myanmar, Sri Lanka, and Thailand. Across seven thematic chapters and seven case studies, the volume provides analytical insight into central topics arising from these events, including the role of political parties which depart from 'Western' frameworks; the often-marginalised place of courts; the centrality of civil-military relations; the explanatory power of constitutional culture; and the impact of the COVID-19 pandemic. Offering a decolonising approach to constitutional law and democratisation studies, this book will be of keen interest to scholars, practitioners, and policymakers alike. It is essential reading for anyone seeking to understand the relationship between democratic decay and institutional endurance, and how such a relationship plays out in conditions of ongoing constitutional development.
The Democratic Constitution: Experimentalism and Interpretation
by Brian E. ButlerThe Supreme Court is seen today as the ultimate arbiter of the Constitution. Once the Court has spoken, it is the duty of the citizens and their elected officials to abide by its decisions. But the conception of the Supreme Court as the final interpreter of constitutional law took hold only relatively recently. Drawing on the pragmatic ideals characterized by Charles Sanders Peirce, John Dewey, Charles Sabel, and Richard Posner. Brian E. Butler shows how this conception is inherently problematic for a healthy democracy. Butler offers an alternative democratic conception of constitutional law, “democratic experimentalism,” and applies it in a thorough reconstruction of Supreme Court cases across the centuries, such as Brown v. Board of Education, Citizens United v. Federal Election Commission, Lucas v. South Carolina Coastal Council, and Lochner v. New York. In contrast to the traditional tools and conceptions of legal analysis that see the law as a formally unique and separate type of practice, democratic experimentalism combines democratic aims and experimental practice. Butler also suggests other directions jurisprudential roles could take: for example, adjudication could be performed by primary stakeholders with better information. Ultimately, Butler argues persuasively for a move away from the current absolute centrality of courts toward a system of justice that emphasizes local rule and democratic choice.
The Democratic Constitution: Experimentalism and Interpretation
by Brian E. ButlerThe Supreme Court is seen today as the ultimate arbiter of the Constitution. Once the Court has spoken, it is the duty of the citizens and their elected officials to abide by its decisions. But the conception of the Supreme Court as the final interpreter of constitutional law took hold only relatively recently. Drawing on the pragmatic ideals characterized by Charles Sanders Peirce, John Dewey, Charles Sabel, and Richard Posner. Brian E. Butler shows how this conception is inherently problematic for a healthy democracy. Butler offers an alternative democratic conception of constitutional law, “democratic experimentalism,” and applies it in a thorough reconstruction of Supreme Court cases across the centuries, such as Brown v. Board of Education, Citizens United v. Federal Election Commission, Lucas v. South Carolina Coastal Council, and Lochner v. New York. In contrast to the traditional tools and conceptions of legal analysis that see the law as a formally unique and separate type of practice, democratic experimentalism combines democratic aims and experimental practice. Butler also suggests other directions jurisprudential roles could take: for example, adjudication could be performed by primary stakeholders with better information. Ultimately, Butler argues persuasively for a move away from the current absolute centrality of courts toward a system of justice that emphasizes local rule and democratic choice.
The Democratic Constitution: Experimentalism and Interpretation
by Brian E. ButlerThe Supreme Court is seen today as the ultimate arbiter of the Constitution. Once the Court has spoken, it is the duty of the citizens and their elected officials to abide by its decisions. But the conception of the Supreme Court as the final interpreter of constitutional law took hold only relatively recently. Drawing on the pragmatic ideals characterized by Charles Sanders Peirce, John Dewey, Charles Sabel, and Richard Posner. Brian E. Butler shows how this conception is inherently problematic for a healthy democracy. Butler offers an alternative democratic conception of constitutional law, “democratic experimentalism,” and applies it in a thorough reconstruction of Supreme Court cases across the centuries, such as Brown v. Board of Education, Citizens United v. Federal Election Commission, Lucas v. South Carolina Coastal Council, and Lochner v. New York. In contrast to the traditional tools and conceptions of legal analysis that see the law as a formally unique and separate type of practice, democratic experimentalism combines democratic aims and experimental practice. Butler also suggests other directions jurisprudential roles could take: for example, adjudication could be performed by primary stakeholders with better information. Ultimately, Butler argues persuasively for a move away from the current absolute centrality of courts toward a system of justice that emphasizes local rule and democratic choice.
The Democratic Constitution: Experimentalism and Interpretation
by Brian E. ButlerThe Supreme Court is seen today as the ultimate arbiter of the Constitution. Once the Court has spoken, it is the duty of the citizens and their elected officials to abide by its decisions. But the conception of the Supreme Court as the final interpreter of constitutional law took hold only relatively recently. Drawing on the pragmatic ideals characterized by Charles Sanders Peirce, John Dewey, Charles Sabel, and Richard Posner. Brian E. Butler shows how this conception is inherently problematic for a healthy democracy. Butler offers an alternative democratic conception of constitutional law, “democratic experimentalism,” and applies it in a thorough reconstruction of Supreme Court cases across the centuries, such as Brown v. Board of Education, Citizens United v. Federal Election Commission, Lucas v. South Carolina Coastal Council, and Lochner v. New York. In contrast to the traditional tools and conceptions of legal analysis that see the law as a formally unique and separate type of practice, democratic experimentalism combines democratic aims and experimental practice. Butler also suggests other directions jurisprudential roles could take: for example, adjudication could be performed by primary stakeholders with better information. Ultimately, Butler argues persuasively for a move away from the current absolute centrality of courts toward a system of justice that emphasizes local rule and democratic choice.
The Democratic Constitution
by Neal Devins Louis FisherConstitutional law is clearly shaped by judicial actors. But who else contributes? Scholars in the past have recognized that the legislative branch plays a significant role in determining structural issues, such as separation of powers and federalism, but stopped there--claiming that only courts had the independence and expertise to safeguard individual and minority rights. In this readable and engaging narrative, the authors identify the nuts and bolts of the national dialogue and relate succinct examples of how elected officials and the general public often dominate the Supreme Court in defining the Constitution's meaning. Making use of case studies on race, privacy, federalism, war powers, speech, and religion, Devins and Fisher demonstrate how elected officials uphold individual rights in such areas as religious liberty and free speech as well as, and often better than, the courts. This fascinating debunking of judicial supremacy argues that nonjudicial contributions to constitutional interpretation make the Constitution more stable, more consistent with constitutional principles, and more protective of individual and minority rights.