Abstract

ALTERIO, ANA MICAELA. Inclusion in Roberto Gargarella's Democratic Theory. Some Questions Regarding the All Possible Affected Principle of Participation in Gelman v. Uruguay Case. Rev. Derecho Estado [online]. 2021, n.49, pp.111-130.  Epub Sep 30, 2021. ISSN 0122-9893.  https://doi.org/10.18601/01229893.n49.07.

The article raises some questions about Gargarella's analysis of the Inter-American Court of Human Rights' ruling in Gelman v. Uruguay. It accepts the main idea regarding the possibility to grad democratic legitimacy of decisions, but it questions that the Uruguayan amnesty has had a high degree of legitimacy. This is because the decision was not made by all possibly affected people. This normative principle of inclusion is fundamental to Gargarella's theory of democracy, however, it was not considered in his analysis of the case. The article explores the consequences of taking the principle of inclusion seriously and the practical problems that it involves, especially regarding the constitution of the demos. Finally, it proposes an alternative solution through a procedural understanding of judicial review based on participation, as proposed by J.H. Ely.

Keywords : Gargarella; Inter-American Court of Human Rights; Gelman v. Uruguay case; all possible affected principle of participation; inclusion; democratic theory; judicial review; J.H. Ely.

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