Judicial review by constitutional courts is often presented as a necessary supplement to democracy. This book questions its effectiveness and legitimacy. Drawing on the republican tradition, Richard Bellamy argues that the democratic mechanisms of open elections between competing parties and decision-making by majority rule offer superior and sufficient methods for upholding rights and the rule of law. The absence of popular accountability renders judicial review a form of arbitrary rule which lacks the incentive structure democracy provides to ensure rulers treat (...) the ruled with equal concern and respect. Rights based judicial review undermines the constitutionality of democracy. Its counter-majoritarian bias promotes privileged against unprivileged minorities, while its legalism and focus on individual cases distort public debate. Rather than constraining democracy with written constitutions and greater judicial oversight, attention should be paid to improving democratic processes through such measures as reformed electoral systems and enhanced parliamentary scrutiny. (shrink)

The idea that a republic is the only legitimate form of government and that non-elective monarchy and hereditary political privileges are by definition illegitimate is an artifact of late eighteenth century republicanism, though it has roots in the “godly republics” of the seventeenth century. It presupposes understanding a republic to be a non-monarchical form of government. The latter definition is a discursive practice that goes back only to the fifteenth century and is not found in Roman or medieval sources. This (...) article explains how the definition emerged in Renaissance Italy. (shrink)

I argue that an ambiguity exists between Philip Pettit's largely normative and Quentin Skinner's largely historical accounts of republican liberty. Historical republican liberty, as seen in Livy's narrative of the period following the expulsion of the Roman kings to the passage of the Licinian-Sextian laws, was largely defensive, in the form of the tribunate. Though republican liberty protected the plebeians from wanton patrician abuse, removing them from a formal dependence analogous to that of slave or child in Roman law, it (...) left them under the tutelage and guidance of a paternalistic order. Thus, while historical republican liberty was anti-patriarchal, it was normatively compatible with paternalism. Yet paternalism is probably undesirable for both normatively- and historically-minded advocates of republicanism. (shrink)

This essay examines the place of Sallust in Machiavelli's political theory. Such an examination is necessary and fruitful for two basic reasons. First, the interpretative and secondary literature on Machiavelli's classical sources has neglected, with very few exceptions, the influence and role Sallust may have played in the formulation of Machiavelli's thinking. Second, the essay argues that Sallust is important to Machiavelli's attempt to recover republican liberty. At the core of Machiavelli's project to discover 'new modes and orders' is the (...) fundamental Roman republican antithesis between libertas and dominatio. The very critique of dominatio presupposes a conception of libertas without which such a critique would be impossible. Sallust is a useful source for Machiavelli's inquiry into the political, social and military determinants foRA vivere libero e civile. Elements of such a political life are prefigured in Sallust's conception of republican politics, where 'cives cum civibus de virtute certabant' -- that is, where robust competition and healthy conflict express the virtus and the bonae artes of the body politic. In effect, Sallust is important to Machiavelli both as a historian who provides a useful critique of monarchy and despotism, and as a source through which Machiavelli is able to develop his conception of politics in general, and of republican politics in particular. (shrink)

In political theory it goes without saying that the constitution of government raises a claim for legitimacy. With the constitution of the people, however, it is different. It is often dismissed as a historical question. The conviction is that since the people cannot decide on its own composition the boundaries of democracy must be determined by other factors, such as the contingent forces of history. This article critically assesses this view. It argues that like the constitution of government, the constitution (...) of the people raises a claim for legitimacy. The failure to see this is what makes many theorists run into the arms of history. They submit the legitimacy of the people to the arbitrary and asymmetrical forces of the present. (shrink)

This essay examines the political trials through which, according to Machiavelli's Discourses, republics should punish magistrates and prominent citizens who threaten or violate popular liberty. Unlike modern constitutions, which assign indictments and appeals to small numbers of government officials, Machiavelli's neo-Roman model encourages individual citizens to accuse corrupt or usurping elites and promotes the entire citizenry as political jury and court of appeal. Machiavellian political justice requires, on the one hand, equitable, legal procedures that serve all citizens by punishing guilty (...) parties and discouraging retaliatory reprisals, including foreign intervention. On the other hand, frankly acknowledging the power disparities that exist in every republic, Machiavelli outlines how political trials enable pro-plebeian magistrates and populist reformers to thwart patrician-generated smear campaigns and oligarchic conspiracies. (shrink)

Rawls and Schmitt are often discussed in the literature as if their conceptions of the political had nothing in common, or even referred to entirely different phenomena. In this essay, I show how these conceptions share a common space of reasons, traceable back to the idea of public reason and its development since the Middle Ages. By analysing the idea of public reason in Rawls and in Schmitt, as well as its relation to their theories of political representation, I show (...) in what way Schmitt's concept of the political cannot be divorced from an idea of justice, while, conversely, Rawls' conception of justice cannot be divorced from a theory of the political. In that way this paper thematizes the internal relation that each theory establishes between justice and power, deliberation and decision, and consensus and disagreement. (shrink)

Rawls and Schmitt are often discussed in the literature as if their conceptions of the political had nothing in common, or even referred to entirely different phenomena. In this essay, I show how these conceptions share a common space of reasons, traceable back to the idea of public reason and its development since the Middle Ages. By analysing the idea of public reason in Rawls and in Schmitt, as well as its relation to their theories of political representation, I show (...) in what way Schmitt's concept of the political cannot be divorced from an idea of justice, while, conversely, Rawls ' conception of justice cannot be divorced from a theory of the political. In that way this paper thematizes the internal relation that each theory establishes between justice and power, deliberation and decision, and consensus and disagreement. (shrink)

This essay examines the political trials through which, according to Machiavelli's Discourses, republics should punish magistrates and prominent citizens who threaten or violate popular liberty. Unlike modern constitutions, which assign indictments and appeals to small numbers of government officials, Machiavelli's neo-Roman model encourages individual citizens to accuse corrupt or usurping elites and promotes the entire citizenry as political jury and court of appeal. Machiavellian political justice requires, on the one hand, equitable, legal procedures that serve all citizens by punishing guilty (...) parties and discouraging retaliatory reprisals, including foreign intervention. On the other hand, frankly acknowledging the power disparities that exist in every republic, Machiavelli outlines how political trials enable pro-plebeian magistrates and populist reformers to thwart patrician-generated smear campaigns and oligarchic conspiracies. (shrink)

Rawls and Schmitt are often discussed in the literature as if their conceptions of the political had nothing in common, or even referred to entirely different phenomena. In this essay, I show how these conceptions share a common space of reasons, traceable back to the idea of public reason and its development since the Middle Ages. By analysing the idea of public reason in Rawls and in Schmitt, as well as its relation to their theories of political representation, I show (...) in what way Schmitt's concept of the political cannot be divorced from an idea of justice, while, conversely, Rawls' conception of justice cannot be divorced from a theory of the political. In that way this paper thematizes the internal relation that each theory establishes between justice and power, deliberation and decision, and consensus and disagreement. (shrink)