Democracy, Judicial Review and Disagreements About Justice
Author: Machin, Dean
Source: Legisprudence, Volume 3, Number 1, July 2009 , pp. 43-67(25)
Publisher: Hart Publishing
Abstract:Jeremy Waldron claims to have identified the core of the case against judicial review. He argues that as citizens have fundamental but reasonable and good faith disagreements about justice (ie, we live in the "circumstances of politics") it is morally obnoxious for unelected judges to strike down primary legislation. Waldron, though, does accept the permissibility of judicial review of administrative and executive decision-making. This paper offers an account of what makes a disagreement about justice "fundamental" and, in light of this, argues that the intrinsic fairness considerations that imply that the judicial review of primary legislation is impermissible apply equally to the judicial review of administrative and executive decision-making. So, either both are permissible or neither is. The paper concludes by showing that the circumstances of politics have considerably fewer implications for the issue of the proper role of judicial review than Waldron's arguments imply.
Document Type: Research Article
Publication date: July 1, 2009
- Legisprudence aims at contributing to the improvement of legislation by studying the processes of legislation from the perspective of legal theory. The content of the journal covers legislation in a broad sense. This comprises legislation in both the formal and the material sense (from national and European parliaments, regulation, international law), and alternatives to legislation (covenants, sunset legislation, etc.). It also takes in regulation (pseudo-legislation, codes of behaviour and deontological codes, etc.). The journal is theoretical and reflective. Contributions to the journal make use of an interdisciplinary method in legal theory. Comparative and system transcending approaches are encouraged. Sociological, historical, or economic studies are taken into account to the extent that they are relevant from the perspective of interdisciplinary legal theory. Dogmatic descriptions of positive law are not taken into consideration.
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