The Democratic Qualities of Courts: A Critical Analysis of Three Arguments

Representation, Volume 49, Issue 3, 2013 , pp. 333-346, Special Issue: Courts and Representative Democracy, ed. C Parau and R. Bellamy,

23 Pages Posted: 18 Oct 2013

See all articles by Richard Bellamy

Richard Bellamy

University College London - Department of Political Science

Date Written: October 17, 2013

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.

Keywords: courts, democracy, deliberation, participation, representation, judicial review

Suggested Citation

Bellamy, Richard, The Democratic Qualities of Courts: A Critical Analysis of Three Arguments (October 17, 2013). Representation, Volume 49, Issue 3, 2013 , pp. 333-346, Special Issue: Courts and Representative Democracy, ed. C Parau and R. Bellamy, , Available at SSRN: https://ssrn.com/abstract=2341534

Richard Bellamy (Contact Author)

University College London - Department of Political Science ( email )

Gower Street
London
United Kingdom

HOME PAGE: http://iris.ucl.ac.uk/iris/browse/profile?upi=RBELL43

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