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Title: Judicial Reference to Community Values: A Pointer Towards Constitutional Juries?
Contributor(s): Ghosh, Eric  (author)
Publication Date: 2016
DOI: 10.1007/978-3-319-28371-5_12
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Abstract: The practice of justifying judicial decisions by reference to consensual community values, which are distinguished from ordinary public opinion, has occurred in a number of jurisdictions and has been defended by prominent scholars. It provides a response to concern about the democratic legitimacy of judicial decision-making especially in constitutional cases. While it has also been critiqued for exacerbating concern about democratic legitimacy, the community values approach has proved resilient and merits further exploration. This chapter takes seriously its aim of promoting democratic legitimacy in constitutional decisions by connecting those decisions to the community's values. Some of the democratic theorists referred to by adherents of the community values approach are also helpful in understanding how this aim could be achieved. Achieving this aim would depend, for instance, upon understanding community values as informed majority opinion. It is finally argued, drawing on experience with deliberative polling, that this aim might be realised if constitutional juries are introduced.
Publication Type: Book Chapter
Source of Publication: Democratizing Constitutional Law: Perspectives on Legal Theory and the Legitimacy of Constitutionalism, p. 247-271
Publisher: Springer
Place of Publication: Switzerland
ISBN: 9783319283692
Field of Research (FOR): 180122 Legal Theory, Jurisprudence and Legal Interpretation
180108 Constitutional Law
Socio-Economic Outcome Codes: 940499 Justice and the Law not elsewhere classified
HERDC Category Description: B1 Chapter in a Scholarly Book
Series Name: Law and Philosophy Library
Series Number : 113
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Appears in Collections:Book Chapter

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