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Full-Text Articles in Law
Constitutional Pluralism And Democratic Politics: Reflections On The Interpretive Approach Of Baker V. Carr, Guy-Uriel Charles
Constitutional Pluralism And Democratic Politics: Reflections On The Interpretive Approach Of Baker V. Carr, Guy-Uriel Charles
Faculty Scholarship
Baker v. Carr is one of the Supreme Court's most important opinions, not least because its advent signaled the constitutionalization of democracy. Unfortunately, as is typical of the Court's numerous forays into democratic politics, the decision is not accompanied by an apparent vision of the relationship among democratic practice, constitutional law, and democratic theory. In this Article, Professor Charles revisits Baker and provides several democratic principles that he argues justifies the Court's decision to engage the democratic process. He examines the decision from the perspective of one of its chief contemporary critics, Justice Frankfurter. He sketches an approach, described as …
System And Lifeworld In Habermas's Theory Of Law, Hugh Baxter
System And Lifeworld In Habermas's Theory Of Law, Hugh Baxter
Faculty Scholarship
Jürgen Habermas's recent work on law and democracy divides into two parts. With his "discourse theory of law and democracy," Habermas seeks to explain the conditions under which modern constitutional legal and political orders may claim legitimacy. Here Habermas's method is primarily philosophical and legal-theoretical. The second part of the project – the part on which this article focuses – develops what Habermas calls his "communication theory of society." Here Habermas seeks to "translate" the normative conclusions of his discourse theory into a substantive social-theoretical model. The idea is to determine whether the ambitious normative theory of democracy is plausible …
Constitutional Design: Proposals Versus Processes, Donald L. Horowitz
Constitutional Design: Proposals Versus Processes, Donald L. Horowitz
Faculty Scholarship
No abstract provided.
Habermas's Discourse Theory Of Law And Democracy, Hugh Baxter
Habermas's Discourse Theory Of Law And Democracy, Hugh Baxter
Faculty Scholarship
In his 1992 book, "Between Facts and Norms," Jürgen Habermas develops a two-part theory of law and democracy. This article examines the first part – the “reconstructive” part – in which Habermas seeks the most basic principles that justify modern legal and political orders, as well as the institutions and practices through which those principles are realized. Habermas's aims in this part of his theory are ambitious. His largest goal is to reconcile classic tensions in political theory, most notably the tension between basic rights and democracy – or, in terms of American legal theory, the “countermajoritarian difficulty.” He argues …