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Constitutional Democracy

By Janos Kis

Publication Year: 2003

Constitutional Democracy addresses the widely held belief that liberal democracy embodies an uneasy compromise of incompatible values: those of liberal rights on the one hand, and democratic equality on the other. Liberalism is said to compromise democracy, while democracy is said to endanger the values of liberalism. It is these theses that János Kis examines and tries to refute. Making the assumption that the alleged conflict is to be resolved at the level of institutions, he outlines a new theory of constitutional democracy. A wide range of problems encountered in constitutional democracy are discussed, such as the popular vote, popular sovereignty, and non-elected justices. The volume is composed of three parts. Part One, "Public Good and Civic Virtue", revisits the debate between liberals and democrats on how to interpret the democratic vote. In Part Two, "Liberal Democracy", the author proves that on the level of principles there is no incompatibility between liberalism and democracy and that liberal theory can demonstrate that democratic values follow from fundamental liberal values. In Part Three, "Constitutional Adjudication in a Democracy", the compatibility of democracy and judicial or constitutional review is analyzed and a theory of constitutionalism is outlined.

Published by: Central European University Press


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p. 1-1

Title Page, Copyright

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pp. 2-5

Table of Contents

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pp. vi-viii

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pp. ix-xvi

Let me begin with a terminological question. The title of this book is “Constitutional Democracy”. That of one of its studies is “Liberal Democracy”. What does the different choice of words refer to? ...

The Common Good and Civic Virtue

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1. Liberalism and republicanism

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pp. 3-8

Liberalism came to dominate political philosophy in the early 19th century. From hindsight, it long appeared as though it had dominated the two preceding centuries as well. Fresh developments in the history of ideas have shown, by contrast, that this image is false. ...

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2. The preference-aggregating model

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pp. 9-10

The preference-aggregating model conceives democratic politics after the image of the market. Voters play here a role analogous to that played by consumers; they seek their share in the goods distributed by politics. Political programs among which voters may choose represent the supply. ...

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3. The ethical model: the responsible voter

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pp. 11-16

The ethical model rejects the market analogy. It does not necessarily reject the market itself; that is, it does not necessarily reject the idea that the market lets the individuals pursue their private interests and treats their preferences as given. It allows to take that to be acceptable in the market, where everyone decides for oneself and only for oneself. ...

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4. The ethical model: the relation between private and communal preferences

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pp. 17-20

We have seen that in the ethical model voters may not rest content with ranking the offered alternatives according to their own interests only; they have to take into account the interests of the community as well. However, we have not examined yet the way they should relate the two orderings in making their decisions. ...

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5. The ethical model: public debate and voting

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pp. 21-24

Earlier, I have written that making a statement on the common good implies the claim that others should share the same view. In case an agreement is actually reached, the vote will be unanimous. The coincidence of votes, however, is not a source of the agreement: it only registers it. ...

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6. On the relation of the two models

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pp. 25-28

What the ethical model does is first and foremost to highlight the deficiencies of the criteria of evaluation furnished by the preference-aggregating model. Its main normative claim is that it is not sufficient to judge democratic voting by the sole measure of efficiency in satisfying the contingent multitude of (individual) preferences. ...

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7. Liberalism and the descriptive claims of the ethical model

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pp. 29-34

Should the fundamental theses of the liberal theory be found to be contradictory with the descriptive assumption of the ethical model, the program of “correction” would be bound to fail; one would have to choose between liberalism and the ethical model. Therefore, we have to see first whether or not liberalism is compatible with these assumptions. ...

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8. Virtue in politics

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pp. 35-38

There is no work left for moral sentiments in Adam Smith’s theory of the market. In the world of laissez-faire, the outcome is the realization of the maximum of common good, even if each person pursues her own interests. But such a removal of moral requirements is tied to unrealistically strong conditions. ...

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9. The politics of virtue and personal autonomy

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pp. 39-42

In his influential work called A Theory of Justice, John Rawls makes a distinction between ideal and non-ideal theory. He calls a theory ideal if it makes ideal assumptions about circumstances and conduct, if it assumes, for instance, strict compliance with the requirements of morality. ...

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10. Concluding remarks

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pp. 43-50

Liberalism’s commitment to the principles of ethical individualism, of liberty and rights, and of economizing on virtue is sustainable and worthy of being sustained. Its traditional conception of representative democracy, however, is in need of revision. ...

Liberal Democracy – Against the Compromise Thesis

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1. Introduction

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pp. 53-56

According to a widespread belief, liberal democracy tries to reconcile mutually exclusive values. No political regime can be both perfectly liberal and perfectly democratic, or so the claim has it; liberalism and democracy cannot be made compatible unless society makes concessions either from what it holds to be valuable about liberalism, ...

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2. The conflict

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pp. 57-60

A collective decision does not raise any difficulty if it is made completely unanimously. Assume that a multitude of people has to decide about two alternatives, a and b. Assume, furthermore, that each person intends to vote for a; moreover, they intend to do so regardless of the voting intentions of the others. ...

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3. Constitutional constraints, constitutional review

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pp. 61-64

The provisions protecting liberal principles are commonly said to depart from democratic decision making in two important ways. First, in constitutional democracies majority rule has no universal application to collective decisions. The rule of the majority means that support by the smallest possible majority is sufficient ...

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4. Political equality and rule by the majority

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pp. 65-70

In the previous section I have been characterizing the putative conflict between democratic and liberal principles, in accordance with the traditional picture, as a conflict between majority rule and individual liberty. However, majority rule was not mentioned in my earlier characterization of democracy; ...

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5. Equality of votes and equality of voters

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pp. 71-74

But is it really the case that for a voting system to treat participants of the voting process as equals it must always grant one and only one vote to all of them and weigh the votes equally when it comes to aggregation? In what follows I will argue that this is not the case. ...

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6. Contractarian theory: the selection of voting rules

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pp. 75-80

The insights of the previous section are close to the results the theory of collective decisions reached by way of studying constitutional choices. In what follows, I will briefly summarize the arguments of James Buchanan and Gordon Tullock, who outlined the theory in its classical form.24 ...

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7. A weakness of contractarian theory

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pp. 81-84

Thus, one of the two pillars of the compromise thesis has been removed. Since rules that are more demanding than simple majority do not in principle violate democratic equality, the latter does not prohibit the application of liberal constraints. Yet the second pillar is yet to be considered. ...

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8. The typology of preferences

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pp. 85-90

Call preferences such rankings of possible states of affairs where the ranking shows what, other things being equal, the person who made the ranking is disposed to choose. Call the person who makes the ranking the subject of preferences. ...

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9. Filtering the preferences of the contracting parties

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pp. 91-96

The above typology is rather rudimentary, and it does not account for a number of factors that are relevant for human preferences.36 Yet it is sufficient to give an overview of what the idealization of preferences of the hypothetical constitution makers may and may not involve. ...

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10. Moral discussion before the contract

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pp. 97-102

Let us assume that in ordinary life people are divided by enduring disagreements in questions of a moral nature, such as the right of religious people to be protected against public speech that hurts their sensibility or the right of pregnant women to have an abortion on demand. ...

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11. The mandate of the guardians of the constitution

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pp. 103-108

The fact that the only acceptable answer is the right answer does not imply either that the right answer coincides with one of the positions actually represented during the debate, nor that the available evidence would necessarily settle the question concerning the right answer compellingly. ...

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12. Summary and restrictions

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pp. 109-116

In the introduction I have written that the refutation of the compromise thesis is interesting not in its own right but in what it shows us about liberal democracy. In the conclusion I would like to sum up this lesson. ...

Constitutional Review

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1. Introduction

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pp. 119-132

The Hungarian Constitutional Court is the offspring of the 1989 transition. Its creation and the fundamental principles of its operation were agreed upon at the national round table.1 Its objectives, competences and procedural rules were specified by the constitution amended on October 18, 1989 ...

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2. Interpreting the constitution

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pp. 133-182

In the introductory chapter I have characterized the ideal of parliamentarism as the thesis that holds that only popular representatives are authorized to make such rules that bind the state and its citizens; all other government agencies must act within the constraints of the laws made by the parliament, ...

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3. Striking down legislation

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pp. 183-246

Constitutional justices are not elected representatives but are merely authorized by elected representatives; the mandate of this body is derived from the constitution makers, while the judges’ own personal mandates derive from the lawmakers. Usually, ordinary judges, too, are not elected representatives; their authority is derivative as well. ...

The Legacy of the First Hungarian Constitutional Court

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1. The interpretive practice of the Constitutional Court

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pp. 249-302

This study examines the interpretive practice of the first Hungarian Constitutional Court in the light of the general conception of constitutional review, developed in the previous study. I will show that the collective stance of the Constitutional Court included the claim to substantive constitutional interpretation; ...

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2. Summary and a glance to the future

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pp. 303-320

In 1989, at the outset of the third republic, the legal as well as the political community in Hungary were thinking about the new democratic institutions in terms of the traditional conception of parliamentary Rechtstaat. This conception allows only for a very limited room for constitutional review. ...


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pp. 321-324

E-ISBN-13: 9786155053887
Print-ISBN-13: 9789639241282

Page Count: 342
Publication Year: 2003

Edition: 1st