What's So Bad About Judicial Review?
Policy, Vol. 24, No. 4, pp. 30-35, 2008
University of Queensland TC Beirne School of Law Research Paper No. 10-39
6 Pages Posted: 26 Nov 2010
Abstract
Rights-based judicial review has been widely criticised for allowing unelected judges to impose their moral and political views on the community. This article offers a moderate defence of this form of judicial review, arguing that the case against it is typically overstated. Judicial discretion on rights issues is not nearly as harmful or pervasive as its opponents sometimes make out. Furthermore, while the elected legislature does possess an inherent form of democratic legitimacy, this falls far short of justifying an unqualified hold on government power.
Keywords: judicial review, countermajoritarian difficulty, separation of powers, Hayek, Waldron
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