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Rule of Law vs Majoritarian Democracy

Edited by: Giuliano Amato, Benedetta Barbisan, Cesare Pinelli

ISBN13: 9781509936847
Published: September 2021
Publisher: Hart Publishing
Country of Publication: UK
Format: Hardback
Price: £100.00



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What is more paradoxically democratic than a people exercising their vote against the harbingers of the rule of law and democracy? What happens when the will of the people and the rule of law are at odds?

Some commentators note that the presence of illiberal political movements in the public arena of many Western countries demonstrates that their democracy is so inclusive and alive that it comprehends and countenances even undemocratic forces and political agendas. But what if, on the contrary, these were the signs of the deconsolidation of democracy instead of its good health? What if democratically elected regimes were to ignore constitutional principles representing the rule of law and the limits of their power?

With contributions from judges and scholars from different backgrounds and nationalities this book explores the framework in which this tension currently takes place in several Western countries by focusing on four key themes:

  • The Rule of Law: presenting a historical and theoretical reconstruction of the evolution of the Rule of Law
  • The People: dealing with a set of problems around the notion of 'people' and the forces claiming to represent their voice
  • Democracy and its enemies: tackling a variety of phenomena impacting on the traditional democratic balance of powers and institutional order
  • Elected and Non-Elected: focusing on the juxtaposition between judges (and, more generally, non-representative bodies) and the people's representation

Subjects:
Constitutional and Administrative Law, Comparative Law
Contents:
1. Introduction
Giuliano Amato (Italian Constitutional Court)
PART I: WHAT IS THE RULE OF LAW ABOUT?
2. Rule of Law Between XVIIth and XIXth Century
Paolo Alvazzi del Frate and Alberto Torini (Università di Roma Tre, Italy)
3. Rule of Law Metamorphoses in the Twentieth Century
Luigi Lacchè (University of Macerata, Italy)
4. Rule of Law and Democracy
Dieter Grimm (Yale Law School, USA)
5. EU Rule of Law: The State of Play Following the Debates Surrounding the 2019 Commission's Communication
Dimitry Kochenov and Barbara Grabowska-Moroz (University of Groningen, Netherlands)
PART II: THE PEOPLE
6. The People v. Democracy? The Populist Challenge to Judicial Review
Justin Collings (Brigham Young University, USA)
7. Proceduralising the People: Deliberative Democracy, Majority Rule, and the Rule of Law
Simone Chambers (University of California at Irvine, USA)
8. Élite vs People
Yves Mény (Scuola Superiore Sant'Anna, Italy)
9. The Double Fiction of the People
Cesare Pinelli (University of Rome Sapienza, Italy)
10. Stronger Together? Populist (or Non-Populist) Politics of Peoplehood
Jan-Werner Müller (Princeton University, USA)
11. Does Illiberal Democracy Exist?
Gabor Halmai (European University Institute, Italy)
12. Majority Rule, Democracy, and Populism: Theoretical Considerations
Wojciech Sadurski (University of Sydney, Australia)
13. New Technologies at the Service of Deliberative Democracy
José Luis Martì (Pompeu Fabra - Barcelona, Spain)
PART III: DEMOCRACY AND ITS ENEMIES
14. Is Still Democracy the Worst Form of Government Except All Others?
Gianfranco Pasquino (Alma Mater Studiorum Bologna, Italy)
15. The Old-Fashioned (or Out of Fashion?) Prohibition on a Binding Mandate
Benedetta Barbisan (University of Macerata, Italy)
16. Party Fatigue in European Democracies
Piero Ignazi (Alma Mater Studiorum Bologna, Italy)
17. Market Power and Democracy
Antonio Cucinotta (University of Messina, Italy)
18. Economic Crisis and Liberal Democracies
Moreno Bertoldi and Michele Salvati (University of Milan, Italy)
19. Social Identities, Borders and Majorities
Gian Primo Cella (University of Milan, Italy)
PART IV: ELECTED AND NON ELECTED
20. The Role of Judges in a Representative Democracy
Lord Jonathan H Mance (UK Supreme Court)
21. Closely Observed Judges, or the Great Comeback of Authoritarianism in Poland
Malgorzata Gersdorf (Supreme Court of Poland) and Mateusz Pilich (University of Warsaw, Poland)