Democracy and Judicial Review: Are They Really Incompatible?

Perspectives on Politics 7.4. 2 (2009) 805-822

18 Pages Posted: 1 Oct 2014

See all articles by Annabelle Lever

Annabelle Lever

University of Geneva - Department of Political Science and International Relations

Date Written: September 23, 2008

Abstract

This article shows that judicial review has a democratic justification, although it is not necessary for democratic government and its virtues are controversial and often speculative. Against critics like Waldron and Bellamy, it shows that judges, no less than legislators, can embody democratic forms of representation, accountability and participation. Hence, judicial review is not undemocratic simply because it enables unelected judges to over-rule elected legislators when people disagree about rights. Against recent defenders of judicial review, such as Eisgruber and Brettschneider, it shows that democratic arguments for judicial review do not require judges to be better at protecting rights than legislators. Hence a democratic justification for judicial review does not depend on complex and inevitably controversial interpretations and evaluations of judicial as opposed to legislative judgments. Democratic government does not demand special virtue, competence or wisdom in its citizens or their leaders. From a democratic perspective, therefore, the case for judicial review is that it enables individuals to vindicate their rights against government in ways that parallel those they commonly use against each other. This makes judicial review normatively attractive whether or not it leads to better decisions than would be made by other means.

Keywords: democracy, judicial review, Waldron, Brettschneider, Eisgruber, participation, representation, accountability, equality, Bellamy

Suggested Citation

Lever, Annabelle, Democracy and Judicial Review: Are They Really Incompatible? (September 23, 2008). Perspectives on Politics 7.4. 2 (2009) 805-822. Available at SSRN: https://ssrn.com/abstract=2500254

Annabelle Lever (Contact Author)

University of Geneva - Department of Political Science and International Relations ( email )

40 Boulevard du Pont D'Arve
Geneva, Geneve CH 1207
Switzerland

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