Democracy and Legal Change (Cambridge Studies in the Theory of Democracy)
Melissa Schwartzberg
Language: English
Pages: 242
ISBN: 0521146577
Format: PDF / Kindle (mobi) / ePub
Since ancient Athens, democrats have taken pride in their power and inclination to change their laws, yet they have also sought to counter this capacity by creating immutable laws. In Democracy and Legal Change, Melissa Schwartzberg argues that modifying law is a fundamental and attractive democratic activity. Against those who would defend the use of “entrenchment clauses” to protect key constitutional provisions from revision, Schwartzberg seeks to demonstrate historically the strategic and even unjust purposes unamendable laws have typically served, and to highlight the regrettable consequences that entrenchment may have for democracies today. Drawing on historical evidence, classical political thought, and contemporary constitutional and democratic theory, Democracy and Legal Change reexamines the relationship between democracy and the rule of law from a new, and often surprising, set of vantage points.
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In the case of the decree relating to the appointment of tribute collectors (423 b.c.e.) (Fornara 133), the person conspiring to invalidate the decree (or to thwart the payment of tribute) was charged with treason. The decree relating to the reassessment of the tribute of the Athenian empire (425/424 b.c.e.) (Fornara 136) prescribed the loss of citizen rights (atimia) and the confiscation of property for those raising a motion to nullify the decree. Given that the allies were aware of Athenian.
Through 1651, but with few noteworthy accomplishments; the major reform was that all court proceedings should be conducted in English.53 In 1652, the Rump appointed a commission on law reform, chaired by the lawyer Sir Matthew Hale; and though the Hale Commission comprised a serious, deliberative effort at legal change through legislative means, it, too, had only 51 53 94 52 Hobbes (1991: 187). Worden (1974: 106). Worden (1974: 107); Woolrych (1982: 7). 18:13 P1: JYD 0521866529c03.
And Legislative Authority Efforts at defining the scope of legitimate legal change characterized much of the seventeenth century, as we have seen, and theoretical accounts of the mutability of law intersected with pressing political concerns about the locus of political authority. Under the Commonwealth, Parliament was free to take up the matter of legal change, to appoint committees to study the matter of law reform, and then to debate these matters publicly, whereas the capacity to modify the.
Protector’s consent suggested that the authors were certainly aware that the legislature would attempt to do just that. The entrenchment of particular provisions, and Cromwell’s speech defending a more expansive concept of fundamental law, emerged in response to this possibility. Let us step away from the seventeenth century and turn to the second set of arguments. Of course, today the question of the appropriate scope and locus of legal change, particularly constitutional change, continues to.
This passage from Patrick Henry on the risk that the president would promote his own interests against that of the people: “Man is a fallen creature, a fallible being, and cannot be depended on without self-love.” (Elliot, 1836: IV, 388). Sheldon (2001: 20–26); Matthews (1995: 32). 124 18:17 P1: SBT 0521866521c04 CUNY706/Schwartzberg 0 521 86652 9 Printer: cupusbw February 1, 2007 Fallibility and Foundations in the U.S. Constitution construct a temporary bulwark.22 In defending the.