Constitutional law

About: Constitutional law is a research topic. Over the lifetime, 11500 publications have been published within this topic receiving 86317 citations.

Contributions to a discourse theory of law and democracy

Abstract: Translatora s Introduction. Preface. 1. Law as a Category of Social Mediation between Facts and Norms. 2. The Sociology of Law versus the Philosophy of Justice. 3. A Reconstructive Approach to Law I: The System of Rights. 4. A Reconstructive Approach to Law II: The Principles of the Constitutional State. 5. The Indeterminacy of Law and the Rationality of Adjudication. 6. Judiciary and Legislature: On the Role and Legitimacy of Constitutional Adjudication. 7. Deliberative Politics: A Procedural Concept of Democracy. 8. Civil Society and the Political Public Sphere. 9. Paradigms of Law. Postscript (1994). Appendices. Notes. Bibliography. Index.

Democracy and Its Critics

Abstract: The course is focused on historical texts, most of them philosophical. Context for understanding the texts and the course of democratic development will be provided in lecture and discussions, and by some background readings (Dunn). We begin with the remarkable Athenian democracy, and its frequent enemy the Spartan oligarchy. In Athens legislation was passed directly by an assembly of all citizens, and executive officials were selected by lot rather than by competitive election. Athenian oligarchs such as Plato more admired Sparta, and their disdain for the democracy became the judgment of the ages, until well after the modern democratic revolutions. Marsilius of Padua in the early Middle Ages argued for popular sovereignty. The Italian citystates of the Middle Ages did without kings, and looked back to Rome and Greece for republican models. During the English Civil War republicans debated whether the few or the many should be full citizens of the regime. The English, French, and American revolutions struggled with justifying and establishing a representative democracy suitable for a large state, and relied on election rather than lot to select officials. The English established a constitutional monarchy, admired in Europe, and adapted by the Americans in their republican constitution. The American Revolution helped inspire the French, and the French inspired republican and democratic revolution throughout Europe during the 19 century.

Introduction to the study of the law of the Constitution

Abstract: A year after the publication of Dicey's LAW OF THE CONSTITUTION, William Gladstone was reading it aloud in the House of Commons, citing it as authority. It remains, to this day, a starting point for the study of the English Constitution and comparative constitutional law. THE LAW OF THE CONSTITUTION elucidates the guiding principles of the modern constitution of England: the legislative sovereignty of Parliament, the rule of law, and the binding force of unwritten conventions. Dicey's goal was "to provide students with a manual which may impress these leading principles on their minds, and thus may enable them to study with benefit in Blackstone's Commentaries and other treatises of the like nature those legal topics which, taken together, make up the constitutional law of England."

The Core of the Case Against Judicial Review

Abstract: This Essay states the general case against judicial review of legislation clearly and in a way that is uncluttered by discussions of particular decisions or the history of its emergence in particular systems of constitutional law. The Essay criticizes judicial review on two main grounds. First, it argues that there is no reason to suppose that rights are better protected by this practice than they would be by democratic legislatures. Second, it argues that, quite apart from the outcomes it generates, judicial review is democratically illegitimate. The second argument is familiar; the first argument less so. However, the case against judicial review is not absolute or unconditional. In this Essay, it is premised on a number of conditions, including that the society in question has good working democratic institutions and that most of its citizens take rights seriously (even if they may disagree about what rights they have). The Essay ends by considering what follows from the failure of these conditions. author. University Professor in the School of Law, Columbia University. (From July 2006, Professor of Law, New York University.) Earlier versions of this Essay were presented at the Colloquium in Legal and Social Philosophy at University College London, at a law faculty workshop at the Hebrew University of Jerusalem, and at a constitutional law conference at Harvard Law School. I am particularly grateful to Ronald Dworkin, Ruth Gavison, and Seana Shiffrin for their formal comments on those occasions and also to James Allan, Aharon Barak, Richard Bellamy, Aileen Cavanagh, Arthur Chaskalson, Michael Dorf, Richard Fallon, Charles Fried, Andrew Geddis, Stephen Guest, Ian Haney-Lopez, Alon Harel, David Heyd, Sam Issacharoff, Elena Kagan, Kenneth Keith, Michael Klarman, John Manning, Andrei Marmor, Frank Michelman, Henry Monaghan, Veronique Munoz-Darde, John Morley, Matthew Palmer, Richard Pildes, Joseph Raz, Carol Sanger, David Wiggins, and Jo Wolff for their suggestions and criticisms. Hundreds of others have argued with me about this issue over the years: This Essay is dedicated to all of them, collegially and with thanks. WALDRON 3/23/2006 6:53:29 PM the core of the case against judicial review