From democracy and distrust to a contextually situated dialogic theory

I aim to develop an Elyean/procedural approach to judicial review, trying to adjust Ely’s traditional approach to the new circumstances that characterize our time. The “corrections” that I shall propose to John Ely’s view partially overlap and partially differ from the suggestions that Professor Stephen Gardbaum presented, for similar purposes, in his article “Comparative Political Process Theory”.  I shall present my own revised approach to Ely’s project, in a critical dialogue with Professor Gardbaum’s pathbreaking contribution.

Comparative Multidisciplinary Perspectives on Omnibus Legislation

Omnibus legislation is the legislative practice of packaging together numerous unrelated measures in one long bill, which is often passed via an expedited process. In many jurisdictions around the world, this practice has become one of the major developments in the legislative process, a powerful policy tool, and a governance device with important implications for democratic governance. It is also one of the most controversial and hotly contested legislative practices. My presentation will offer a cross-national, comparative exploration of omnibus legislation. It will draw on international experiences to explore questions such as why is omnibus legislation used and what are its governance implications. Why do different countries vary so much in their normative evaluation of this practice? And, how can the use of omnibus legislation be regulated.

Trust and Political Process Theory

Ely put ‘Distrust’ in the title of his book. But his theory is equally one of trust: using distrust to delimit when courts should intervene in democratic processes is, for Ely, just the flipside of saying that they should trust them the rest of the time. When we adapt process theory for global use, this part needs to be generalized too. Doing so, however, means confronting a complexity. Ely focused on policing existing democratic processes in a US context where they are (comparatively) established. He did not consider the task of establishing processes in the first place, a problem that arises everywhere but is acute in emerging systems. Doing that can mean showing trust, even in imperfect processes, when that is a better way to build them. That complicates ‘better safe than sorry’ arguments for precautionary intervention. But it refines, in a vital way, our understanding of when democratic processes are ‘worthy of trust’.

Comparative Political Process Theory

Expanding Ely's too limited view of what constitutes malfunction and adapting it to address constitutional practices and developments around the world, this paper argues that a comparative political process theory (CPPT) can potentially make a valuable contribution to the discipline. It first isolates and focuses on the key and distinct function in all democratic constitutions of constituting not only the institutions and branches of government, but also the structures and processes of the system of representative democracy. CPPT also provides a vocabulary and conceptual framework for identifying the multiple ways that systems of representative democracy can be undermined and degraded. Thirdly, CPPT develops a normative theory of judicial review that is specifically geared towards this key function of constituting and maintaining a system of representative democracy, and the range of ways that courts can help to protect its structures and processes against the array of challenges.

Judicial Intervention in Parliamentary Affairs to Replace the Legislature’s Speaker

The Edelstein ruling shook the foundations of Israeli democracy. For the first time in the country’s history, the Israeli Supreme Court intervened in the legislature’s internal affairs by scheduling a date for a vote, thus shaping the vote’s outcome and creating an irrevocable political reality. Never before had a Knesset Speaker resigned in protest while refusing to uphold a court order. Every governmental branch viewed the other as damaging the core principles of democracy. The Court opined that the Knesset Speaker’s refusal to hold a vote for electing a new Knesset Speaker, even though the majority of the Knesset Members called for it, constituted a grave violation of parliamentary affairs. The Knesset Speaker, in turn, adhered to his stance that he was acting with integrity and preventing a second Altalena Affair by resigning. Who is right? With whom is the law?