What Exactly is the Problem with Judicial Supremacy? The Rule of Law, Moral Legitimacy, and the Construction of Constitutional Law

M. Jovanović and K.E. Himma (eds.), Courts, Interpretation, and The Rule Of Law, (The Hague: Eleven International Publishing, 2013), Forthcoming

29 Pages Posted: 2 Jul 2013 Last revised: 6 Jul 2013

See all articles by Kenneth Einar Himma

Kenneth Einar Himma

University of Washington - School of Law

Date Written: July 1, 2013

Abstract

This paper is concerned with the issue of whether U.S.-style judicial supremacy satisfies the standards of political morality that fall under the rubric of "the rule of law." There are a number of questions that arise in this connection that will be discussed: (1) What, exactly, is the rule of law (hereinafter, RoL)? (2) How does RoL connect with other standards of normative political morality relevant with respect to evaluating judicial and other legal practices? (3) Is there any reason to think that judicial supremacy is in conflict with the relevant RoL standards? (4) Assuming an affirmative answer to (3), what does this tell us about whether judicial supremacy is morally justified? I take the procedural/functional conception of F.A. Hayek as my working conception of RoL and consider whether judicial supremacy runs afoul of the relevant principles. Although this paper is specifically concerned with an ostensible tension between judicial supremacy and the relevant RoL principles, the most important part of the analysis is a gesture in the direction explicating the real moral issue and how it goes beyond RoL considerations.

Keywords: rule of law, legitimacy, judicial supremacy, Hayek, common law, case-law judicial decisionmaking

Suggested Citation

Himma, Kenneth Einar, What Exactly is the Problem with Judicial Supremacy? The Rule of Law, Moral Legitimacy, and the Construction of Constitutional Law (July 1, 2013). M. Jovanović and K.E. Himma (eds.), Courts, Interpretation, and The Rule Of Law, (The Hague: Eleven International Publishing, 2013), Forthcoming. Available at SSRN: https://ssrn.com/abstract=2288165

Kenneth Einar Himma (Contact Author)

University of Washington - School of Law ( email )

William Gates Hall
Seattle, WA 98195-3020
United States

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