Balancing Procedures and Outcomes within Democratic Theory: Core Values and Judicial Review

Political Studies, Vol. 53, No. 2, pp. 423-441, June 2005

19 Pages Posted: 24 Jan 2011

See all articles by Corey L. Brettschneider

Corey L. Brettschneider

Brown University - Department of Political Science; Fordham University School of Law

Date Written: June 1, 2005

Abstract

Democratic theorists often distinguish between two views of democratic procedures. ‘Outcomes theorists’ emphasize the instrumental nature of these procedures and argue that they are only valuable because they tend to produce good outcomes. In contrast, ‘proceduralists’ emphasize the intrinsic value of democratic procedures, for instance, on the grounds that they are fair. In this paper. I argue that we should reject pure versions of these two theories in favor of an understanding of the democratic ideal that recognizes a commitment to both intrinsically valuable democratic procedures and democratic outcomes. In instances in which there is a conflict between these two commitments, I suggest they must be balanced. This balancing approach offers a justification of judicial review on the grounds that it potentially limits outcomes that undermine democracy.

But judicial review is not justifiable in any instance in which a bad democratic outcome results from democratic procedures. When the loss that would result from overturning a democratic procedure is greater than the gain to democracy that would result from ensuring against an undemocratic outcome; judicial review is not justifiable. Loss or gain to democracy is defined by the negative or positive impact of each action on the core democratic values of equality and autonomy, aspects of the democratic ideal. Even when judicial review is justified, the fact that it overturns intrinsically valuable procedures suggests that such review is never ideal from the standpoint of democracy.

Suggested Citation

Brettschneider, Corey, Balancing Procedures and Outcomes within Democratic Theory: Core Values and Judicial Review (June 1, 2005). Political Studies, Vol. 53, No. 2, pp. 423-441, June 2005. Available at SSRN: https://ssrn.com/abstract=1746008

Corey Brettschneider (Contact Author)

Brown University - Department of Political Science ( email )

Box 1844
Providence, RI 02912
United States

Fordham University School of Law ( email )

140 West 62nd Street
New York, NY 10023
United States

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