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9 - Checks and Balances

Combining “Institutional Means and Personal Motives”

Published online by Cambridge University Press:  25 April 2022

Roberto Gargarella
Affiliation:
Universidad de Buenos Aires, Argentina
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Summary

In this chapter, I demonstrate that the system of checks and balances, which was one of the fundamental innovations of modern constitutionalism, was also marked, from the beginning, by a strongly anti-democratic bias. This bias began -I maintain- with the pretense of balancing the “ambition” of the landowning minorities with the “ambition” of the indebted majorities. The choice was made to value political stability and social balance over democratic principles, which came at a very high cost. In this way, majority rule lost much of its meaning. Moreover, I claim that the system of checks and balances was conceived from a logic that is particularly worrying for those who defend a “conversational” or “deliberative” approach to democracy. I refer to the fact that the system was much more motivated to “avoid war” between factions than to promote dialogue between them. Thus -I claim- “constitutional dialogue” was possible, or at least not prevented by the institutional system erected, but the system certainly did not promote it and did in fact pose obstacles to it

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Publisher: Cambridge University Press
Print publication year: 2022

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  • Checks and Balances
  • Roberto Gargarella, Universidad de Buenos Aires, Argentina
  • Book: The Law As a Conversation among Equals
  • Online publication: 25 April 2022
  • Chapter DOI: https://doi.org/10.1017/9781009105682.010
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  • Checks and Balances
  • Roberto Gargarella, Universidad de Buenos Aires, Argentina
  • Book: The Law As a Conversation among Equals
  • Online publication: 25 April 2022
  • Chapter DOI: https://doi.org/10.1017/9781009105682.010
Available formats
×

Save book to Google Drive

To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Google Drive.

  • Checks and Balances
  • Roberto Gargarella, Universidad de Buenos Aires, Argentina
  • Book: The Law As a Conversation among Equals
  • Online publication: 25 April 2022
  • Chapter DOI: https://doi.org/10.1017/9781009105682.010
Available formats
×