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A Matter of DisputeMorality, Democracy, and Law$
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Christopher J. Peters

Print publication date: 2011

Print ISBN-13: 9780195387223

Published to Oxford Scholarship Online: May 2011

DOI: 10.1093/acprof:oso/9780195387223.001.0001

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Law vs. democracy?

Law vs. democracy?

(p.215) 7. Law vs. democracy?
A Matter of Dispute

Christopher J. Peters (Contributor Webpage)

Oxford University Press

Together with Chapter 8, this chapter applies the dispute-resolution account of law to the countermajoritarian difficulty—the apparent tension between democratic government and judicially interpreted constitutional constraints on democracy. It first describes the difficulty and canvasses four popular types of approach to resolving it, including those endorsed by theorists such as Ronald Dworkin, John Hart Ely, Alexander Bickel, and Bruce Ackerman. It then outlines the influential version of the countermajoritarian critique articulated by Jeremy Waldron and presents a dispute-resolution defense of constitutional law. Constitutional law is necessary not only to literally constitute democratic government, but also to prevent predictable types of breakdowns in democratic authority—including agency failure and factions—and to establish extrademocratic means to resolve disputes about whether a breakdown has occurred. These tasks must be performed by constitutional law, the chapter argues, because disputes about democratic malfunctions often cannot be resolved impartially by ordinary democracy itself.

Keywords:   dispute resolution, countermajoritarian difficulty, constitutional law, judicial review, Ronald Dworkin, John Hart Ely, Alexander Bickel, Bruce Ackerman, Jeremy Waldron, agency failure

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