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Beyond DisagreementOpen Remedies in Human Rights Adjudication$
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Aruna Sathanapally

Print publication date: 2012

Print ISBN-13: 9780199669301

Published to Oxford Scholarship Online: January 2013

DOI: 10.1093/acprof:oso/9780199669301.001.0001

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From Dialogue to Engagement

From Dialogue to Engagement

Chapter:
(p.57) 3 From Dialogue to Engagement
Source:
Beyond Disagreement
Author(s):

Aruna Sathanapally

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199669301.003.0004

While concerned with the legislature, the new dialogue literature has so far not recognised or accounted for the deliberative turn in democratic theory, and has not given sustained attention to legislative deliberation. This chapter addresses this shortcoming, arguing that weak-form review is a good conceptual fit to a deliberative understanding of democracy; a promising institutional design to advance the accountability and justification of public action. The chapter explores the implications of thinking about interactions between courts and legislatures over fundamental rights as a deliberative (as opposed to majoritarian) democrat, including the twin dangers of executive and judicial dominance which can undermine the legislature’s engagement on human rights. It further develops the framework for analysing the case study of declarations of incompatibility in the UK.

Keywords:   legislature, Parliament, deliberative democracy, weak-form review, executive dominance, judicialisation, compliance, international human rights law

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