Is Judicial Review Undemocratic?
280 - 298 p.
Democracy, Judicial review, Elections, Legitimacy, Private Members Bills, Revue judiciaire, Constitutionnalité, Légitimité, Démocratie, Participation, Représentation, Parlement britannique
Jeremy Waldron has long argued that judicial review is inconsistent with the importance that democracies properly attach to political participation and to equality. This paper looks at those arguments as recently summarised in a paper called “The Core of the Case Against Judicial Review”. Waldron’s arguments highlight the apparent incongruity of a democracy giving a small group of unelected judges the last word on matters which concern citizens and legislators, and on which citizens and legislators may be at least as well-informed, and capable of reasoned decisions, as judges. In addition to a properly functioning judiciary, Waldron believes, democracies should normally be expected to have citizens and legislators who care about, and are capable of protecting, the basic rights of members. Hence, he claims, there is no compelling reason to prefer the decisions of judges to legislators where rights are at stake, and good reasons to believe that doing so detracts from important democratic values and rights. [First paragraph]