Monique Deveaux
- Published in print:
- 2006
- Published Online:
- January 2007
- ISBN:
- 9780199289790
- eISBN:
- 9780191711022
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199289790.001.0001
- Subject:
- Political Science, Democratization
This book explores the challenges that culturally plural liberal states face when they hold competing political commitments to cultural rights and sexual equality, and advances an argument for ...
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This book explores the challenges that culturally plural liberal states face when they hold competing political commitments to cultural rights and sexual equality, and advances an argument for resolving such dilemmas through democratic dialogue and negotiation. Exploring recent examples of gendered cultural conflicts in South Africa, Canada, and Britain, this study shows that there is an urgent need for workable strategies to mediate the antagonisms between the cultural practices and arrangements of certain ethno-cultural and religious groups, and the norms and constitutional rights endorsed by liberal states. Yet such strategies will be successful only insofar as they can resolve conflicts without either reinforcing women’s subordination within cultural communities or unjustly dismissing calls for cultural recognition and forms of self-governance. To this end, the book develops an approach to mediating cultural tensions that takes seriously the demands for justice by cultural and religious minorities in liberal democratic states. Grounded in an argument for democratic legitimacy, this approach invokes norms of political inclusion and democratic dialogue, and highlights negotiation and compromise as the best vehicles for arriving at resolutions to conflicts of cultural value. However, the book also reconceives the basis of democratic legitimacy so as to include not merely formal expressions of political consent, but also a range of informal democratic activities that occur in the private and social spheres, from acts of cultural reinvention and subversion to outright expressions of dissent and cultural refusal.Less
This book explores the challenges that culturally plural liberal states face when they hold competing political commitments to cultural rights and sexual equality, and advances an argument for resolving such dilemmas through democratic dialogue and negotiation. Exploring recent examples of gendered cultural conflicts in South Africa, Canada, and Britain, this study shows that there is an urgent need for workable strategies to mediate the antagonisms between the cultural practices and arrangements of certain ethno-cultural and religious groups, and the norms and constitutional rights endorsed by liberal states. Yet such strategies will be successful only insofar as they can resolve conflicts without either reinforcing women’s subordination within cultural communities or unjustly dismissing calls for cultural recognition and forms of self-governance. To this end, the book develops an approach to mediating cultural tensions that takes seriously the demands for justice by cultural and religious minorities in liberal democratic states. Grounded in an argument for democratic legitimacy, this approach invokes norms of political inclusion and democratic dialogue, and highlights negotiation and compromise as the best vehicles for arriving at resolutions to conflicts of cultural value. However, the book also reconceives the basis of democratic legitimacy so as to include not merely formal expressions of political consent, but also a range of informal democratic activities that occur in the private and social spheres, from acts of cultural reinvention and subversion to outright expressions of dissent and cultural refusal.
Aruna Sathanapally
- Published in print:
- 2012
- Published Online:
- January 2013
- ISBN:
- 9780199669301
- eISBN:
- 9780191744648
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199669301.003.0003
- Subject:
- Law, Human Rights and Immigration
Chapter 2 examines what role the legislature might play relative to the courts when open remedies are employed, and prepares the ground for the analysis of the interaction between courts and ...
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Chapter 2 examines what role the legislature might play relative to the courts when open remedies are employed, and prepares the ground for the analysis of the interaction between courts and legislatures. It cogently and critically evaluates the development of, and debate over, the notion of ‘dialogue’ between courts and legislatures over fundamental rights, identifying two divergent understandings of dialogue. It presents two models that guide the analysis of declarations of incompatibility: specialisation (a process of adjustment of legislation between courts and legislatures, with each institution playing its own distinct, or specialised, role) and dual review (where judicial conclusions on human rights compliance are not treated as authoritative and binding, but rather provisional and open to disagreement). This chapter concludes by identifying a notable gap in the existing dialogue scholarship, namely, a tendency to focus on legislative output rather than interrogate the role and processes of the legislature itself.Less
Chapter 2 examines what role the legislature might play relative to the courts when open remedies are employed, and prepares the ground for the analysis of the interaction between courts and legislatures. It cogently and critically evaluates the development of, and debate over, the notion of ‘dialogue’ between courts and legislatures over fundamental rights, identifying two divergent understandings of dialogue. It presents two models that guide the analysis of declarations of incompatibility: specialisation (a process of adjustment of legislation between courts and legislatures, with each institution playing its own distinct, or specialised, role) and dual review (where judicial conclusions on human rights compliance are not treated as authoritative and binding, but rather provisional and open to disagreement). This chapter concludes by identifying a notable gap in the existing dialogue scholarship, namely, a tendency to focus on legislative output rather than interrogate the role and processes of the legislature itself.
Alison L Young
- Published in print:
- 2017
- Published Online:
- March 2017
- ISBN:
- 9780198783749
- eISBN:
- 9780191826450
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198783749.003.0004
- Subject:
- Law, Constitutional and Administrative Law, Public International Law
The chapter investigates whether democratic dialogue differs from legal and political constitutionalism because it rests on a different set of foundational assumptions. It argues that political ...
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The chapter investigates whether democratic dialogue differs from legal and political constitutionalism because it rests on a different set of foundational assumptions. It argues that political constitutionalism, legal constitutionalism, and democratic dialogue are best understood as being on a spectrum, where democratic dialogue focuses on different issues than those which form the main focus of legal and political constitutionalism. Legal constitutionalism focuses on legal controls, modifying these when there is a need to respect political controls. Political constitutionalism focuses on political controls, recognizing how legal controls may enhance political accountability. Democratic dialogue focuses on inter-institutional interactions, examining when these interactions are valuable. The chapter introduces the concepts of constitutional collaboration and constitutional counter-balancing, arguing that accounts of democratic dialogue need both of these forms of inter-institutional interaction.Less
The chapter investigates whether democratic dialogue differs from legal and political constitutionalism because it rests on a different set of foundational assumptions. It argues that political constitutionalism, legal constitutionalism, and democratic dialogue are best understood as being on a spectrum, where democratic dialogue focuses on different issues than those which form the main focus of legal and political constitutionalism. Legal constitutionalism focuses on legal controls, modifying these when there is a need to respect political controls. Political constitutionalism focuses on political controls, recognizing how legal controls may enhance political accountability. Democratic dialogue focuses on inter-institutional interactions, examining when these interactions are valuable. The chapter introduces the concepts of constitutional collaboration and constitutional counter-balancing, arguing that accounts of democratic dialogue need both of these forms of inter-institutional interaction.
Alison L Young
- Published in print:
- 2017
- Published Online:
- March 2017
- ISBN:
- 9780198783749
- eISBN:
- 9780191826450
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198783749.003.0006
- Subject:
- Law, Constitutional and Administrative Law, Public International Law
The chapter argues that institutional interactions can facilitate a better protection of human rights, help to engage citizens in the protection of rights, and provide a means of checks and balance. ...
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The chapter argues that institutional interactions can facilitate a better protection of human rights, help to engage citizens in the protection of rights, and provide a means of checks and balance. The chapter develops a normative framework for democratic dialogue, evaluating the type of inter-institutional interactions better able to facilitate democratic dialogue. It argues that institutions should focus on facilitating constitutional collaboration, with constitutional counter-balancing being used when one institution believes the other has transgressed the proper scope of its constitutional powers. It argues that to facilitate a better protection of human rights, institutions should give weight to the reasoning of other institutions, according to their relative ability to reason about rights. It recognizes that dialogue can, if misinterpreted, harm the separation of powers and the independence of the judiciary. It needs to be applied in a manner which is sensitive to the distribution of power in any particular constitution.Less
The chapter argues that institutional interactions can facilitate a better protection of human rights, help to engage citizens in the protection of rights, and provide a means of checks and balance. The chapter develops a normative framework for democratic dialogue, evaluating the type of inter-institutional interactions better able to facilitate democratic dialogue. It argues that institutions should focus on facilitating constitutional collaboration, with constitutional counter-balancing being used when one institution believes the other has transgressed the proper scope of its constitutional powers. It argues that to facilitate a better protection of human rights, institutions should give weight to the reasoning of other institutions, according to their relative ability to reason about rights. It recognizes that dialogue can, if misinterpreted, harm the separation of powers and the independence of the judiciary. It needs to be applied in a manner which is sensitive to the distribution of power in any particular constitution.
Alison L Young
- Published in print:
- 2017
- Published Online:
- March 2017
- ISBN:
- 9780198783749
- eISBN:
- 9780191826450
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198783749.003.0007
- Subject:
- Law, Constitutional and Administrative Law, Public International Law
The chapter explains how democratic dialogue is a constitutional model, which rests on general and specific assumptions. The general assumptions are similar to those found in Waldron’s argument ...
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The chapter explains how democratic dialogue is a constitutional model, which rests on general and specific assumptions. The general assumptions are similar to those found in Waldron’s argument against a constitutional protection of rights. The specific assumption requires that no one institution is able to always prevail when interacting with the other institution. The chapter assesses the extent to which these assumptions are met in the UK constitution. In particular, it focuses on the argument that, given parliamentary sovereignty, dialogue cannot apply in the UK constitution. The chapter argues in favour of a specific form of bipolar sovereignty, arguing that this is a feasible interpretation of the UK constitution. It also dismisses claims that dialogue cannot apply in the UK constitution because of the nature of parliamentary privilege and executive dominance.Less
The chapter explains how democratic dialogue is a constitutional model, which rests on general and specific assumptions. The general assumptions are similar to those found in Waldron’s argument against a constitutional protection of rights. The specific assumption requires that no one institution is able to always prevail when interacting with the other institution. The chapter assesses the extent to which these assumptions are met in the UK constitution. In particular, it focuses on the argument that, given parliamentary sovereignty, dialogue cannot apply in the UK constitution. The chapter argues in favour of a specific form of bipolar sovereignty, arguing that this is a feasible interpretation of the UK constitution. It also dismisses claims that dialogue cannot apply in the UK constitution because of the nature of parliamentary privilege and executive dominance.
Alison L Young
- Published in print:
- 2017
- Published Online:
- March 2017
- ISBN:
- 9780198783749
- eISBN:
- 9780191826450
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198783749.003.0003
- Subject:
- Law, Constitutional and Administrative Law, Public International Law
The chapter investigates whether democr atic dialogue is distinct because it provides a dynamic account of constitutions, focusing on interactions between institutions and the way in which human ...
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The chapter investigates whether democr atic dialogue is distinct because it provides a dynamic account of constitutions, focusing on interactions between institutions and the way in which human rights values are formed through these interactions. It explains how dynamic interactions are common to all accounts of democratic dialogue. However, it also recognizes that there are accounts of both legal and political constitutionalism which focus on dynamic interactions. As such, although dynamic interactions may be a necessary component of democratic dialogue, it is not sufficient to distinguish democratic dialogue from legal and political constitutionalism. Again, we appear to be left with the conclusion that democratic dialogue is either ubiquitous or non-existent.Less
The chapter investigates whether democr atic dialogue is distinct because it provides a dynamic account of constitutions, focusing on interactions between institutions and the way in which human rights values are formed through these interactions. It explains how dynamic interactions are common to all accounts of democratic dialogue. However, it also recognizes that there are accounts of both legal and political constitutionalism which focus on dynamic interactions. As such, although dynamic interactions may be a necessary component of democratic dialogue, it is not sufficient to distinguish democratic dialogue from legal and political constitutionalism. Again, we appear to be left with the conclusion that democratic dialogue is either ubiquitous or non-existent.
Alison L Young
- Published in print:
- 2017
- Published Online:
- March 2017
- ISBN:
- 9780198783749
- eISBN:
- 9780191826450
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198783749.001.0001
- Subject:
- Law, Constitutional and Administrative Law, Public International Law
Constitutions divide into those which empower courts to strike down legislation which contravenes human rights and those which do not. The Human Rights Act 1998 is regarded as an example of a ...
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Constitutions divide into those which empower courts to strike down legislation which contravenes human rights and those which do not. The Human Rights Act 1998 is regarded as an example of a commonwealth model of rights protections. It is justified as a new form of protection of rights which promotes dialogue between the legislature and the courts; dialogue being seen not just as a better means of protecting rights, but as a new form of constitutionalism occupying a middle ground between legal and political constitutionalism. This book argues that there is no clear middle ground for dialogue to occupy. Most theories of legal and political constitutionalism combine legal and political protections and some provide an account of interactions between the legislature and the judiciary. Nevertheless, dialogue has a role to play. It differs from legal and political constitutionalism, being based on different assumptions. It focuses on analysing mechanisms of inter-institutional interactions, assessing when these interactions can provide a better protection of rights, facilitate deliberation, engage citizens, and act as an effective check and balance between institutions of the constitution. The book evaluates dialogue in the UK constitution, assessing the protection of human rights through the Human Rights Act 1998, the common law, and EU law. It also evaluates court–court dialogue between the UK courts and the European Court of Justice and the European Court of Human Rights. The conclusion evaluates the implications of the proposed British Bill of Rights and the referendum decision to leave the European Union.Less
Constitutions divide into those which empower courts to strike down legislation which contravenes human rights and those which do not. The Human Rights Act 1998 is regarded as an example of a commonwealth model of rights protections. It is justified as a new form of protection of rights which promotes dialogue between the legislature and the courts; dialogue being seen not just as a better means of protecting rights, but as a new form of constitutionalism occupying a middle ground between legal and political constitutionalism. This book argues that there is no clear middle ground for dialogue to occupy. Most theories of legal and political constitutionalism combine legal and political protections and some provide an account of interactions between the legislature and the judiciary. Nevertheless, dialogue has a role to play. It differs from legal and political constitutionalism, being based on different assumptions. It focuses on analysing mechanisms of inter-institutional interactions, assessing when these interactions can provide a better protection of rights, facilitate deliberation, engage citizens, and act as an effective check and balance between institutions of the constitution. The book evaluates dialogue in the UK constitution, assessing the protection of human rights through the Human Rights Act 1998, the common law, and EU law. It also evaluates court–court dialogue between the UK courts and the European Court of Justice and the European Court of Human Rights. The conclusion evaluates the implications of the proposed British Bill of Rights and the referendum decision to leave the European Union.
Michael A. Rebell
- Published in print:
- 2018
- Published Online:
- September 2018
- ISBN:
- 9780226549781
- eISBN:
- 9780226549958
- Item type:
- book
- Publisher:
- University of Chicago Press
- DOI:
- 10.7208/chicago/9780226549958.001.0001
- Subject:
- Education, Educational Policy and Politics
Throughout American history, the primary mission of public schools has been to prepare students to be effective citizens capable of sustaining a vibrant democracy. Over the past half century, ...
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Throughout American history, the primary mission of public schools has been to prepare students to be effective citizens capable of sustaining a vibrant democracy. Over the past half century, however, most American schools have substantially neglected their responsibility to prepare students for civic participation. For example, in 2016, only 43% of voters under 25 turned out to vote and on the 2014 civics exam administered by the National Assessment of Educational Progress only 23% of 18 year-olds performed at or above a “proficient” level. African-American and other students of color tend to experience an even more substantial “civic empowerment gap.” This book examines the causes of the decline in civic preparation, and proposes specific policies that states and school systems can adopt to reinvigorate the schools’ ability to prepare students to function productively as civic participants, and considers examples of best practices. Rebell further argues that this civic decline is also a legal failure—a gross violation of both federal and state constitutions. Building on the precedents in the education adequacy cases that have been litigated in 45 of 50 state courts, and the fact that the vast majority of these courts - and the Supreme Court - have specifically held that preparing students to be capable citizens is a primary purpose of public education, the author argues that adoption of effective solutions by states and school systems will require judicial intervention by both state and federal courts. The book proposes specific legal theories and litigation strategies for such court action.Less
Throughout American history, the primary mission of public schools has been to prepare students to be effective citizens capable of sustaining a vibrant democracy. Over the past half century, however, most American schools have substantially neglected their responsibility to prepare students for civic participation. For example, in 2016, only 43% of voters under 25 turned out to vote and on the 2014 civics exam administered by the National Assessment of Educational Progress only 23% of 18 year-olds performed at or above a “proficient” level. African-American and other students of color tend to experience an even more substantial “civic empowerment gap.” This book examines the causes of the decline in civic preparation, and proposes specific policies that states and school systems can adopt to reinvigorate the schools’ ability to prepare students to function productively as civic participants, and considers examples of best practices. Rebell further argues that this civic decline is also a legal failure—a gross violation of both federal and state constitutions. Building on the precedents in the education adequacy cases that have been litigated in 45 of 50 state courts, and the fact that the vast majority of these courts - and the Supreme Court - have specifically held that preparing students to be capable citizens is a primary purpose of public education, the author argues that adoption of effective solutions by states and school systems will require judicial intervention by both state and federal courts. The book proposes specific legal theories and litigation strategies for such court action.
