The Law As a Conversation among Equals

Advocates for a dignified constitutional democracy aimed at enabling fraternal conversation within the framework of a community of equals.

Roberto Gargarella (Author)

9781009098595, Cambridge University Press

Hardback, published 21 April 2022

300 pages
23.5 x 15.7 x 2.2 cm, 0.68 kg

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.

1. Constitutionalism and Democracy: An Institutional Problem of Structural Nature
2. The law as Conversation among Equals
3. 'Democratic Dissonance': Elitism Translated into Institutions
4. A Constitution Marked by a 'Discomfort with Democracy'
5. Motivations and Institutions: 'If Men Were Angels'
6. The Structural Difficulties of Representation
7. The Rise and Fall of Popular Control
8. The Periodic Vote, or 'Electoral Extortion'
9. Checks and Balances: Combining 'Institutional Means and Personal Motives'
10. Presidentialism: Busting the Checks and Balances
11. Rights: Citizenship As Repository of Rights
12. Social Rights and the 'Engine Room'
13. Judicial Review: 'It Seems Something of an Insult'
14. Constitutional Interpretation: When the 'interpretative Gap' Widens
15. Constitution Making: Speaking with One Voice in Multicultural Societies
16. The Birth of Dialogical Constitutionalism
17. Why We Care About Dialogue
18. 'Democratic Erosion'
19. Conclusion: For a Conversation among Equals.

Subject Areas: Constitutional & administrative law [LND], Comparative law [LAM], Jurisprudence & philosophy of law [LAB]