Journal Article

Democracy and collective decision making

Samuel Issacharoff

in International Journal of Constitutional Law

Published on behalf of The New York University School of Law

Volume 6, issue 2, pages 231-266
Published in print April 2008 | ISSN: 1474-2640
Published online March 2008 | e-ISSN: 1474-2659 | DOI:
Democracy and collective decision making

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  • Constitutional and Administrative Law
  • UK Politics


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Around the world, traditional barriers to judicial engagement with the structure of democratic politics have fallen remarkably as courts increasingly entertain first-order questions about the structures of governance. This article explores judicial responses to a particularly vexing problem: who should be the polity that decides first-order political issues?

The most famous such judicial encounter is that of the Canadian Supreme Court in a case involving whether Quebec had a right to secede based on a referendum of its own population. The discussion places the Canadian Court's resolution of that issue in the context of how numerous courts around the world, including the United States Supreme Court, have addressed similar questions, though generally in cases not so freighted as the potential dissolution of the national federation.

Concluding from a review of such cases that courts forced (or willing) to engage such issues are likely to find little mooring for their resolution in either legal doctrine or political theory, the article warns that courts should be wary of following their impulses to treat such first-order conflicts about the structure of political systems as familiar claims of individual rights, even if that is the posture in which the issues are litigated.

Journal Article.  16818 words. 

Subjects: Constitutional and Administrative Law ; UK Politics

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