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Law As a Conversation among Equals [Kõva köide]

(Universidad de Buenos Aires, Argentina)
  • Formaat: Hardback, 300 pages, kõrgus x laius x paksus: 235x157x22 mm, kaal: 680 g, Worked examples or Exercises
  • Sari: Cambridge Studies in Constitutional Law
  • Ilmumisaeg: 21-Apr-2022
  • Kirjastus: Cambridge University Press
  • ISBN-10: 1009098594
  • ISBN-13: 9781009098595
Teised raamatud teemal:
Law As a Conversation among EqualsSuurem pilt
  • Formaat: Hardback, 300 pages, kõrgus x laius x paksus: 235x157x22 mm, kaal: 680 g, Worked examples or Exercises
  • Sari: Cambridge Studies in Constitutional Law
  • Ilmumisaeg: 21-Apr-2022
  • Kirjastus: Cambridge University Press
  • ISBN-10: 1009098594
  • ISBN-13: 9781009098595
Teised raamatud teemal:
Püsilink: https://www.kriso.ee/db/9781009098595.html
Märksõnad:
In a time of disenchantment with democracy, massive social protests and the 'erosion' of the system of checks and balances, this book proposes to reflect upon the main problems of our constitutional democracies from a particular regulative ideal: that of the conversation among equals. It examines the structural character of the current democratic crisis, and the way in which, from its origins, constitutions were built around a 'discomfort with democracy'. In this sense, the book critically explores the creation of different restraints upon majority rule and collective debate: constitutional rights that are presented as limits to (and not, fundamentally, as a product of) democratic debate; an elitist system of judicial review; a checks and balances scheme that discourages, rather than promotes, dialogue between the different branches of power; etc. Finally, the book proposes a dignified constitutional democracy aimed at enabling fraternal conversation within the framework of a community of equals.

In times of disenchantment with democracy and 'erosion' of the system of checks and balances, the book proposes to reflect upon the main problems of our constitutional democracies, from a particular regulative ideal: that of the conversation among equals.

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Advocates for a dignified constitutional democracy aimed at enabling fraternal conversation within the framework of a community of equals.
Preface xv
Acknowledgments xviii
1 Constitutionalism and Democracy An Institutional Problem of Structural Nature
1(15)
1.1 The Democratic Objection is Still There
5(3)
1.2 Of History and Ideas
8(4)
1.3 Three Clarifications
12(4)
2 The Law As Conversation among Equals
16(16)
2.1 Immigrants in the "Promised Land"
16(5)
2.2 Six Basic Elements of a Conversation among Equals
21(4)
2.3 "Constitutional Moments" As Collective Conversation
25(4)
2.4 Autonomy, Self-Government, Rights, and Democracy in the Conversation of Equals
29(1)
2.5 Autonomy and Self-Government
29(1)
2.6 Rights and Democracy
30(2)
3 "Democratic Dissonance" Elitism Translated into Institutions
32(19)
3.1 Three Great Jurists from the Age of Revolutions: Madison, Alberdi, and Bello
32(1)
3.2 Madison
33(2)
3.3 Alberdi
35(1)
3.4 Bello
36(2)
3.5 Elitist Discourse in an Exclusive Framework: Constitutions Conceived for Another Time
38(1)
3.6 Political Sociology
39(1)
3.7 Elitism Translated into Principles and Institutions
40(1)
3.8 Assumptions, Principles, Institutions
41(4)
3.9 What Has Stayed the Same and What Changed in Constitutional Terms: The "Fact of Democracy"
45(3)
3.10 "Democratic Dissonance" and the Tight-Fitting Suit of Constitutionalism
48(3)
4 A Constitution Marked by a "Discomfort with Democracy"
51(15)
4.1 Madison and "Factions"
51(2)
4.2 Direct Democracy
53(1)
4.3 Motivations
54(1)
4.4 Violations of Rights
54(1)
4.5 Majorities and Minorities: The Construction of a Counter-Majoritarian Constitution
55(2)
4.6 A Constitution Made to Protect Minorities
57(2)
4.7 Exactly Which of the Minorities Warrant Protection?
59(2)
4.8 So What to Do About Majority Factions? (Another) Counter-Majoritarian Response
61(5)
5 Motivations and Institutions "If Men Were Angels"
66(16)
5.1 How Far Off Were the Radical Republicans?
69(2)
5.2 Egoism As "Fuel" for and the "Endogenous Product" of the Institutional System
71(4)
5.3 No System Is "Neutral"
75(2)
5.4 The Economic Preconditions of Political Self-Government
77(5)
6 The Structural Difficulties of Representation
82(16)
6.1 The Bristol Debates
82(5)
6.2 Do We Need to "Filter" the Citizen Voice?
87(3)
6.3 The Problems of the Predominant Model: Isolation, "Capture," Ignorance
90(1)
6.4 From "Virtual" Representation to Representation As "Mirror": Representation and "Presence"
91(3)
6.5 The Structural Difficulty of Representation
94(4)
7 The Rise and Fall of Popular Control
98(10)
7.1 Citizens and Representatives
98(2)
7.2 On Institutions Sensitive to Popular Will in Radical English Thought
100(2)
7.3 Instructions, Rotation in Positions, Annual Elections: Different Forms of "Popular" Control
102(2)
7.4 The Gradual Elimination of "Popular" Controls
104(4)
8 The Periodic Vote, or "Electoral Extortion"
108(16)
8.1 Regular Voting As the Only Bridge Standing between Citizens and Representatives
108(1)
8.2 "Electoral Extortion"
109(6)
8.3 Elections from the Representative's Point of View: Voting and Interpreting the Vote
115(3)
8.4 From the Agora to the Dark Booth: The Absence of Dialogue
118(1)
8.5 "Paper Stones"
119(1)
8.6 Irrational Voters or Dysfunctional System?
120(4)
9 Checks and Balances Combining "Institutional Means and Personal Motives"
124(12)
9.1 The Key to Modern Constitutionalism: "Checks and Balances"
124(3)
9.2 Institutionally Channeling "Civil War"
127(2)
9.3 Erroneous Antidemocratic Logic
129(7)
10 Presidentialism Busting the Checks and Balances
136(13)
10.1 Creating the Leviathan
139(1)
10.2 A Poorly Designed Institutional System
140(1)
10.3 The Problem with the Pact
141(2)
10.4 An "Unbalanced" System of "Checks and Balances": The "Alberdian Error"
143(3)
10.5 The Political Left and Presidentialism
146(3)
11 Rights: Citizenship As Repository of Rights
149(17)
11.1 Natural and Self-Evident Rights: Rights As "Planets"
151(4)
11.2 Bentham and the Idea of "Natural Rights" As "Nonsense upon Stilts"
155(3)
11.3 Rights versus Democracy
158(2)
11.4 Rights As "Trump Cards" against Majorities
160(2)
11.5 Rights and the "Sphere of the Undecidable"
162(4)
12 Social Rights and the "Engine Room"
166(17)
12.1 The "Exorbitant" Mexican Constitution of 1917
166(1)
12.2 The Mexican Constitution of 1917: A "Conservative Moment" in the Revolutionary Movement
167(5)
12.3 The Animal Stirs: From the Fourteenth Amendment to "Social Authoritarianism" in Latin America
172(4)
12.4 The "New Latin American Constitutionalism": Constitutionalism That Was Already Old at Birth
176(1)
12.5 Rights versus "Engine Room"
177(2)
12.6 Rights As Bribes? Another Take on Rights versus Democracy
179(4)
13 Judicial Review: "It Seems Something of an Insult"
183(19)
13.1 The "Democratic Objection" and Hamilton's Defense of the Judiciary
183(4)
13.2 The Most Famous Court Case in History: Marbury v. Madison
187(3)
13.3 Judicial Review and Democracy: Failed Arguments
190(3)
13.4 The "Interpretative Gap" Argument
193(4)
13.5 Law Goes Global: International Courts
197(5)
14 Constitutional Interpretation: When the "Interpretative Gap" Widens
202(30)
14.1 What Interpretation Is Not
204(1)
14.2 The Multiplicity of Interpretative Theories
205(5)
14.3 Look to the Past or Think in the Present?
210(3)
14.4 Looking to Past or Present for Often Opposite Results
213(3)
14.5 Radicalizing the Critique of Constitutional Interpretation
216(7)
14.6 Constitutional Interpretation in a Community of Equals (or "from How to Who?")
223(9)
15 Constitution Making: Speaking with One Voice in Multicultural Societies
232(14)
15.1 Ulysses and the Constitution
232(2)
15.2 Constitutions That Speak with One Voice in Multicultural Societies
234(6)
15.3 A Plebiscite for Everything Aggravates the Problem: The "Hourglass"
240(2)
15.4 Inclusive Constituent Assemblies
242(4)
16 The Birth of Dialogical Constitutionalism
246(12)
16.1 The Grootboom Case in South Africa
247(3)
16.2 The "Notwithstanding Clause" in Canada
250(2)
16.3 The Spaces for Dialogue Expand: "Public Hearings," "Prior Consultation," and "Meaningful Engagement"
252(3)
16.4 The Potential of the Incipient Dialogical Constitutionalism
255(3)
17 Why We Care About Dialogue
258(12)
17.1 The Debate Over Abortion in Argentina
258(2)
17.2 Why We Are Interested in Dialogue
260(3)
17.3 What Kind of Dialogue Are We Talking About, When We Talk About Dialogue?
263(3)
17.4 "Real-Life" Constitutional Dialogue
266(4)
18 "Democratic Erosion"
270(20)
18.1 An Autobiographical Note
270(3)
18.2 "Democratic Erosion": A Previously Unidentified Species?
273(2)
18.3 Too Slow a Death: From the Crisis of Rights to the Crisis of Democracy
275(3)
18.4 Repairing a Ship at Sea: Restoring Democratic Controls
278(5)
18.5 "The Final Stop": Congress As the Best Democracy Can Do?
283(3)
18.6 Between Mill's "Best Judge" and Aristotle's "Wise Crowd"
286(4)
19 The New Deliberative Assemblies
290(18)
19.1 The "Pots and Pans Revolution"
290(7)
19.2 The Era of Assemblies: A Short Initial Balance Sheet
297(8)
19.3 The Problem of "Capture": When the Past Holds Back the Present, and the Old Will Not Let in the New
305(3)
20 Conclusion: For a Conversation among Equals
308(19)
20.1 The Different Pieces of "Institutional Decoupling"
311(4)
20.2 What to Do?
315(3)
20.3 Three Themes and Three Cases
318(3)
20.4 Final Objections
321(4)
20.5 So Then
325(2)
Bibliography 327(11)
Index 338
Roberto Gargarella is a Professor of Constitutional Law at the Universidad de Buenos Aires and a senior researcher at CONICET. He has published numerous books and articles, including, The Legal Foundations of Inequality (2010), Latin American Constitutionalism (2013); The Latin American Casebook. Courts Constitutions and Rights with J. G. Bertomeu (2016); and Constituent Assemblies with J. Elster et al (2018).