Can Anti-Objectivists Support Judicial Review?

Monash University Faculty of Law Legal Studies Research Paper No. 2006/54

Australian Journal of Legal Philosophy, Vol. 31, pp. 50-71, 2006

23 Pages Posted: 26 Feb 2008

See all articles by Dale Smith

Dale Smith

University of Melbourne - Law School

Abstract

Those theorists who have investigated the relationship between the debate among moral objectivists and anti-objectivists (henceforth, 'the meta-ethical debate'), on the one hand, and the debate about the legitimacy of judicial review, on the other hand, have generally adopted one of two positions. The first, championed by Jeremy Waldron and (at times) Ronald Dworkin, is that the meta-ethical debate is irrelvant to the legitmacy of judicial review (or to adjudication more generally). The second, defended by Michael Moore and (at other times) Dworkin, is that - far from being irrelevant - the outcome of the meta-ethical debate may be determinative of the legitimacy of judicial review. On this second view, it is open to an objectivist to defend judicial review, but it is difficult - if not impossible - for an anti-objectivist to do so.

Elsewhere, I have argued against the first view. In this article, I shall argue against the second view, contending that the meta-ethical debate does not make as radical a difference to the legitmacy of judicial review as that view suggests.

Keywords: Jurisprudence, legitimacy of judicial review, moral objectivism

JEL Classification: K39, K41

Suggested Citation

Smith, Dale, Can Anti-Objectivists Support Judicial Review?. Monash University Faculty of Law Legal Studies Research Paper No. 2006/54, Australian Journal of Legal Philosophy, Vol. 31, pp. 50-71, 2006, Available at SSRN: https://ssrn.com/abstract=1096422

Dale Smith (Contact Author)

University of Melbourne - Law School ( email )

University Square
185 Pelham Street, Carlton
Victoria, Victoria 3010
Australia

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