The legitimacy of judicial review: The limits of dialogue between courts and legislatures (original) (raw)
Related papers
Rights, ‘Dialogue’ and Democratic Objections to Judicial Review
Federal Law Review
Ibid 105. Federal Law Review Volume 32 ____________________________________________________________________________________ supply of new theories purporting to reconcile judicial review with a particular philosophical conception of democracy or political legitimacy, Hogg and Bushell's argument is notable for its theoretical modesty. It simply insists that, even if democracy is just about the enactments of legislative majorities, we need to acknowledge that legislative objectives are rarely thwarted by court decisions about Charter rights. One interesting question raised by Hogg and Bushell's study, which has been much discussed in Canada, 5 is the extent to which it has relevance beyond the particularities of the Charter's structure and text, and specific features of Canadian history, politics and institutions. Does the analysis contain general insights about the democratic credentials of rights-based judicial review? 6 This article seeks to shed some light on that question by asking a more specific one: does Hogg and Bushell's argument have any lessons to contribute to ongoing debates about rights-based judicial review in the Australian constitutional context? After explaining Hogg and Bushell's account of 'dialogue' in more detail (Part 2), I examine, in Part 3, whether judicial review of the limited rights and freedoms currently contained in the Australian Constitution might be usefully analysed along similar dialogic lines. While there are reasons for concluding that the metaphor of 'dialogue' has considerably less resonance in Australia than in Canada, the idea nonetheless can be invoked to challenge the straightforward sense in which the High Court of Australia's word is sometimes taken to be final. In particular, I will suggest that critics of the High Court's controversial implied rights jurisprudence are apt to consider its democratic costs higher than in truth they are. Part 4 of the article considers whether the possibility that a Canadian style 'dialogue' might be generated in other jurisdictions should moderate the strong democratic objections raised in Australia to the (re)current proposals for the introduction of a bill of rights. This discussion essentially raises two issues: (1) the extent to which 'dialogue' (of the sort described by Hogg and Bushell) can overcome democratic objections to judicial review, and (2) whether, in any event, the institutional interaction between courts and legislatures in Australia would be likely to take a _____________________________________________________________________________________ 5 In Vriend v Alberta [1998] 1 SCR 493, 565-6 Cory and Iacobucci JJ referred to Hogg and Bushell's metaphor of 'dialogue' as 'aptly' describing the interaction between legislatures and courts, and argued that it enhanced the democratic process. For a sampling of the growing academic literature, see
Jürgen Habermas, ed. Camil Ungureanu, Klaus Günther, and Christian Joerges (Ashgate), 2011
A modified version of chapter 7 of "Deliberative Democracy and the Institutions of Judicial Review" Habermas’s combined normative and sociological theory of constitutional democracy oriented towards procedurally-structured participatory deliberation is one of the most productive and robust theories of deliberative democratic constitutionalism available. This paper looks at one component of that theory, its conception of judicial review. I claim that the normative political theory he advances meets sufficiently the demands for a convincing accounts of democratic legitimacy, deliberative processes, and the import of constitutionalism to both. The justification of the function of constitutional review, furthermore, follows convincingly from that normative theory. However, I also argue that his most distinctive arguments in favor of a judicial institutionalization of constitutional review are unconvincing. Better arguments are found, rather, in his further development of the basic justificatory strategy found in Dahl’s and Ely’s arguments for the institution of judicial review: an independent judiciary is institutionally well-suited to policing the procedural legitimacy of democratic processes. Finally, I contend that the elaboration of this line of thought in terms of deliberative democratic constitutionalism threatens, once again, to overdraw on the legitimacy credit extended to a judicial institutionalization of constitutional review, precisely because of the greatly expanded tasks such review would need to fulfill given Habermas’s more ambitious account of deliberative democratic processes in comparison with the earlier pluralist and majoritarian models. I begin by explicating the procedural conception of legitimacy that underlies Habermas’s defense of constitutional democracy (1) and justifies the function of constitutional review (2). Then I turn to his differentiated account of democratic processes that prioritizes deliberations aimed at consensus on the principles of constitutional democracy structuring higher law, but that does not deny the import or place of pragmatic reasoning, ethical-political self-clarification, aggregation and bargaining (3). Finally I examine his arguments for the institutionalization of the function of constitutional review in an electorally-independent judiciary to assess the extent to which there might be lingering worries about paternalism in that account (4).
Judicial Review and Deliberative Democracy: A Circular Model of Law Creation and Legitimation
Ratio Juris, 2001
In this paper the author discusses the legitimation of judicial review of legislation. He argues that such a legitimation is not just a moral matter but is to be considered more generally in terms of societal acceptability, since it is based on a wide range of reasons including moral, social and pragmatic concerns. Moreover, the paper stresses that the legitimation of judicial decisions should be properly viewed in a circular perspective, so that the relationship between legislators and judges cannot be reduced to an absolute supremacy of those who are democratically elected over those who apply the law. On the contrary, the law is constantly made, adapted and developed in legal practice and legal decisions are basically legitimated through several processes of deliberative communication.* 1 Originally, this paper was written as a comment on the paper presented by Luc Tremblay (2001) at the workshop in Bielefeld in February 1999. In the shorter version that is published in this volume, however, the part to which my comments were linked has been dropped, so that my paper has no longer a direct link with Tremblay's contribution.
The Unfulfilled Potential of the Court and Legislature Dialogue
(2009) 42 Canadian Journal of Political Science 443-465 , 2009
Constitutional scholarship has been exploring the idea that the court and the legislature engage in a dialogue over the meaning of the constitution. Yet, despite many contributions to the idea of dialogue over the last decade, its potential remains unfulfilled. The epistemological potential of dialogue remains understudied, in part because the court continues to be viewed as the supreme, if not also the sole, expounder of the constitution. For dialogue's potential to be realized, the legislature should be acknowledged as a co-ordinate actor in expounding constitutional meaning and both court and legislature should assume a disposition for dialogue.
2011
The aim of this chapter is to offer a defence of the practice of constitutional review from the point of view of a theory of democratic legitimacy. I will develop this defence by engaging with the strongest criticism to date of the practice of constitutional review: Jeremy Waldron’s and Richard Bellamy’s argument that constitutional review violates the principle of democratic equality, respect for which is a necessary condition of legitimate political decision-taking in a pluralist society characterised by reasonable disagreement about rights.2
Judicial Review: A Democratic Defense
SEE NOTE: this version of this paper is a bit obsolete. The paper is now being framed as a work on democratic equality directly rather than on judicial review. Such an argument as this would still work, I think, but I believe that my argument on democratic equality is the more salient and useful contribution at the moment. Academic literature is still divided over whether judicial review is a legitimate political institution in a democracy. All conceptions of democracy involve both substantive and procedural components. The defenders of judicial review tend to argue that substantive commitments to self-government and equal effective power justify and limit the procedures of collective decision-making. Its opponents argue that those procedures determine the content of a society’s moral commitments. Here I contribute to the understanding of judicial review in the following three ways: first, I extract from the defenders of judicial review a conception of democracy whose core is the commitment to equal power and individual autonomy. This contributes an understanding of the concept of democracy common to major contributors to the liberal tradition. Further, I use this conception both to defend judicial review conditionally, and to show that its detractors miss something fundamental about the concept of collective and individual self-government.
Revus. Journal for Constitutional Theory and Philosophy of Law, 2023
Deliberative constitutionalism is a theory that has arrived at the centre of the academic debate in recent decades. Its novelty and interest lie in the fact that it offers a way to escape the objections to judicial review through a commitment to the premises of deliberative democracy. In this context, however, a question needs to be clarified: who can legitimately participate in this constitutional dialogue, in order for the objections to judicial review to be avoided? The argument of this article is that, while deliberative constitutionalism is a promising alternative that takes note of the objections to judicial review as well as the deliberative turn in democratic theory, not all of its variants take both of these aspects seriously. To assuage the objections to judicial review, we need a variant of deliberative constitutionalism that is oriented towards inclusive dialogue, and which addresses the whole constitutional system, rather than only intrajudicial, transjudicial and interinstitutional dialogue.