This chapter discusses various attempts to reconcile judicial review with the democratic principle, in particular the claim that constitutional courts do not go against the general will expressed by elected representatives, because these elected representatives represent the general will only in accordance with the Constitution, or because one ought to consider the courts themselves as representatives. These attempts fail, so that the contemporary constitutional systems cannot be described as democratic, but only as mixed governments comprising a democratic element, the elected representatives, and an aristocratic element, the constitutional judges.

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The Representation of the Representation or Is This a Pipe?

  • Michel Troper

摘要

This chapter discusses various attempts to reconcile judicial review with the democratic principle, in particular the claim that constitutional courts do not go against the general will expressed by elected representatives, because these elected representatives represent the general will only in accordance with the Constitution, or because one ought to consider the courts themselves as representatives. These attempts fail, so that the contemporary constitutional systems cannot be described as democratic, but only as mixed governments comprising a democratic element, the elected representatives, and an aristocratic element, the constitutional judges.