Solving the Bargaining Democracy Problem Using a Constitutional Hierarchy for Law

Clas Wihlborg

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Abstract

The democratic deficit in the so-called bargaining democracy provides themotivation for constitutional efforts to limit the ability of different groups to formcoalitions that are able to grant benefits to themselves through legislation that moreor less directly benefit identifiable groups. A constitutional hierachy of laws thatstand in conflict is proposed. In this hierarchy more `rule-oriented' legislationdominate less `rule-oriented' legislation. The main purpose of the proposal is tocreate a momentum of the political process towards more rule-oriented policyactions and legislation, and to inspire the policy debate to focus on principles andrules to an increasing extent. At the same time, the difficulty of defining a rule asopposed to an outcome-oriented directive is avoided by limiting the task of aconstitutional court to simply rank conflicting policy actions with respect to thedegree actions satisfy criteria for rules.
Original languageEnglish
Place of PublicationKøbenhavn
Number of pages20
Publication statusPublished - 2004

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