Judicial Hegemony: Dworkin's 'Freedom's Law' and the Spectrum of Constitutional Democracies

16 Pages Posted: 5 Oct 2002  

Brian Donohue

Laurentian University

Abstract

Ronald Dworkin's "Freedom's Law" offers a solution to a thorny problem in American constitutional law. He argues that the authority of the American Supreme Court to make the final determination on constitutional questions is consistent with democratic principles. In this paper, I try to show that his solution is unsatisfactory because it permits the possibility of a judicial usurpation of authority that is inconsistent with his characterization of democratic principles. "Freedom's Law" is also a bold attempt to offer prescriptions for constitutional democracies generally. By drawing a distinction between two concepts of authority, I object to this effort. I argue that Dworkin's analysis assumes the operation of a conception of authority that I label the pyramid model. I also introduce a bipolar model of authority and try to show its application to the Canadian constitutional scheme. On this basis, I conclude that his prescriptions are relevant only for a portion of the spectrum of constitutional democracies.

Suggested Citation

Donohue, Brian, Judicial Hegemony: Dworkin's 'Freedom's Law' and the Spectrum of Constitutional Democracies. Ratio Juris, Vol. 15, pp. 267-282, 2002. Available at SSRN: https://ssrn.com/abstract=336845

Brian Donohue (Contact Author)

Laurentian University ( email )

935 Ramsey Lake Road
Sudbury P3E 2C6, Ontario P3E 2C6
Canada

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