Suchergebnisse

International Human Rights Courts (IHRCts), such as the European Court of Human Rights (ECtHR), have come under increasing criticism as being incompatible with domestic judicial and legislative mechanisms for upholding rights. These domestic instruments are said to possess greater democratic legitimacy than international instruments do or could do. Within the UK this critique has led some prominent judges and politicians to propose withdrawing from the European Convention on Human Rights (ECHR). Legal cosmopolitans respond by denying the validity of this democratic critique. By contrast this article argues that such criticisms are defensible from a political constitutionalist perspective but that International Human Rights Conventions (IHRCs) can nevertheless be understood in ways that meet them. To do so, IHRC must be conceived as legislated for and controlled by an international association of democratic states, which authorizes IHRCts and holds them accountable, limiting them to 'weak review'. The resulting model of IHRC is that of a 'two level' political constitution. The ECHR is shown to largely accord with this model, which is argued to be both more plausible and desirable than a legal cosmopolitan model that sidelines democracy and advocates 'strong' review.

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. © 2013 © 2013 McDougall Trust, London.

EU institutions are best conceived as representing the peoples of Europe – a contention set out in the first, introductory, section and developed over the next five sections. The second section establishes how democratic legitimacy involves governments being representative of a people and specifies the characteristics a people need to possess for such representation to be possible. Though no EU demos exists with these features, the third section shows how in an increasingly interconnected world, governments have incentives to form associations of democratic peoples via a process of republican intergovernmentalism. Such associations guard against the domination of one people by another by preserving the capacity of the associated peoples for representative democracy. They constitute a form of demoi-cracy. The fourth section describes how the EU's system of representation corresponds to such an association and facilitates mutual respect and fair terms of cooperation between the peoples of Europe. However, as the fifth section indicates, moves away from such a union of peoples towards greater political unity involve an inevitable loss of representativeness and democratic legitimacy. The sixth and concluding section argues the euro crisis results from attempting such a move. Current efforts to resolve the crisis through yet further integration compound economic with political failure by circumventing the EU's associational decision-making mechanisms. The only democratically legitimate and non-dominating solutions will be those that respect the EU's fundamentally demoi-cratic character.

Like many rights theorists, Peter Jones regards rights as lying outside politics and providing constraints upon it. However, he also concedes that rights are matters of reasonable disagreement and that, as a matter of fairness, disputes about them ought to be resolved democratically. In this paper I develop these concessions to argue that rights require democratic justification and that this can only be provided via a real democratic process in which those involved hear the other side. I relate this argument to the republican theory of non-domination, contending that it fits the Lockean project of regarding rights as constraints on arbitrary power better than liberal views that place rights outside the democratic process. I conclude by noting the implications of this argument for rights-based judicial review of legislation. © 2012 Taylor & Francis Group.

Many commentators portray the Human Rights Act (HRA) as marking the demise of Britain's "political constitution." This article argues otherwise. The HRA need not be taken as handing over supremacy for rights adjudication from the legislature to the courts. First, the HRA brings "rights home," strengthening, in certain respects, domestic rights instruments vis-à-vis the European Convention on Human Rights (ECHR). Second, sections 19 and 4 of the Act maintain and potentially enhance Parliament's scrutiny of rights and its sovereignty over the courts in defining and upholding them. Finally, section 3 and rights-based judicial review generally can be assimilated to a system of "weak" review whereby courts defer to the legislative "scope," as determined by Parliament, and are restricted in their independent determinations to the judicial "sphere" of the fair conduct of the case at hand. Such weak review, so called, has always been necessary. However, the HRA potentially reinforces judicial deference by giving it a stronger statutory basis. That the HRA could strengthen rather than undermine political constitutionalism need not mean it does or will. However, the implication of this article is that it ought to be regarded as doing so, with the judiciary acting accordingly.

Can liberal ideals clean up dirty politicians or politics? This article doubts they can. It disputes that a 'cleana' liberal person might inhabit the dirty clothes of the real politician, or that a clean depoliticized liberal constitution can constrain real-world dirty politics. Nevertheless, the need for a democratic prince to wear clean liberal gloves offers a necessary and effective political restraint. It also means that citizens share the hypocrisy and dirt of those who serve them - for we legitimize the dirtiness of politics by requiring politicians to seem cleaner than we know they ever can be in reality. © The Author(s) 2010.

The author replies to five questions about his approach to political philosophy and his views about its prospects for the future.

Discussion of the pros and cons of an EU constitution tends to focus upon two issues. On the one hand, proponents and opponents of reform seek to legitimate the EU as a 'regime', or form of governance. For example, strengthening the powers of the European Parliament is hoped to improve democratic accountability, while incorporating the Charter of Fundamental Rights of the EU is suggested as a way of enhancing legal integrity and the rule of law. On the other hand, debate centres on the EU's status as a 'polity', and the degree to which a Constitution might allow a clear demarcation of what is the EU's area of competence and what remains the domain of domestic governments and legal systems. These two issues are inter-related. Yet, neither politicians nor many academics explicitly address the connections between them. Some focus on 'regime' considerations and seek, almost as an after thought, to tailor them to their preferred view of the EU polity. Others, especially Eurosceptics, treat the very discussion of the EU as having a regime, as an undesirable move in the direction of acknowledging it as a polity. In this piece I wish to suggest that both approaches are misguided. Regime and polity interact, with the latter constraining (without determining) the former. I shall explore the three dominant models of constitutionalism to be found within European political discourse: a rights-based model, a popular sovereignty model and a common law model that employs elements of each. Whilst the first two are the most frequently employed by proponents of constitutional reform, I shall suggest that it is the third that best represents the actually existing EU constitution. Moreover, it has been the key to the successful integration of Europe hitherto precisely because it has allowed both the 'regime', and 'polity', dimensions of the EU to develop in tandem.

This paper identifies two ideal types of citizenship - the cosmopolitan and the communitarian, that correspond to the transnational and sub/national levels of the European Union respectively, and examines four different ways in which they might be combined.