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After Public Law$
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Cormac Mac Amhlaigh, Claudio Michelon, and Neil Walker

Print publication date: 2013

Print ISBN-13: 9780199669318

Published to Oxford Scholarship Online: May 2013

DOI: 10.1093/acprof:oso/9780199669318.001.0001

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(The Failure of) Public Law and the Deliberative Turn *

(The Failure of) Public Law and the Deliberative Turn *

(p.218) 11 (The Failure of) Public Law and the Deliberative Turn*
After Public Law

Oliver Gerstenberg

Oxford University Press

This chapter identifies the widespread practice of judicial review of law and policy as a potential failure of public law, particularly on democratic grounds. It considers arguments that this democratic problem is exacerbated in respect of supranational courts such as the European Court of Justice and European Court of Human Rights, given that they are not embedded in the polity or political community. However, a closer look at the practices of these courts and, more importantly, their relationship with domestic courts, reveals that supranational judicial review is not as unilateral or authoritarian as sceptics claim. Rather, the analysis undertaken in the chapter shows that interaction between domestic and supranational courts opens up a recursively dialogical space in which national administrations are compelled to justify particular policy choices in response to supranational judicial decisions. In this way, supranational courts force states to ‘look again’ at domestic policy choices, particularly in the interests of individuals or groups such as the elderly, transsexuals, or prisoners who may be disadvantaged or marginalized by these policy decisions or legislative interventions.

Keywords:   democratic deficit, judicial review, supranationalism, european court of human rights, european court of justice, court dialogue, minority rights protection, prisoner voting

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