The Doctrine of Judicial Review

In many countries with written constitutions, the doctrine of judicial review prevails. It means that the constitution is the supreme law of the land and any law inconsistent therewith is void. The power to judicially review any decision is an extraordinary power vested in a superior court for checking the exercise of power of public authorities, whether they are constitutional, quasi-judicial or governmental [1] . People who are in favour of this view often argue that judicial review is necessary because enhances protection against the oppression of majorities; they claim that the judges do not check the people, the Constitution does and since the Constitution itself is popularly ratified, there is nothing undemocratic in the power of judicial review [2] ; for this reason there have been several substantial disagreements on justification of judicial review, when and how the power of judicial review should be exercised, and if it should be exercised at all. [3] But for the purpose of this essay, I am going to be discussing different views on judicial review and how a democratic society should function.

The first view is given by Ronald Dworkin. Dworkin believes that there is no way of limiting the powers of the legislators and the government until an amendment is passed; he therefore argues that judicial review should be a major part of a democratic society. Dworkin believes that judicial review is a matter of upholding substantive rights; he says that the idea which informs American constitutionalism-the idea that government should be bound to certain rights by the very authority that structures and empowers its procedures and that this commitment should be enforced by the courts-is probably “the most important contribution American’s history has given to political theory”. [4] The question we should ask ourselves according to Dworkin is if we would lose anything in our democratic society if elected legislatures of a society are subjected to a power of this kind vested in the courts? No, says Dworkin. He argues that if it is the case whether there is loss or not depends entirely on whether the court makes the right decision. If it does, that is, if the statute really was incompatible with the rights required for a democracy- then democracy is surely improved by what the court has done, because the community is now more democratic than it would have been if the anti- democratic statute had been allowed to stand. [5] Dworkin therefore suggest that in order for the courts to make the right decisions on individual rights and democratic issues, there should be a particular way of reading and enforcing a political constitution, which he calls ‘moral reading’. According to the ‘moral reading’, judges decide constitutional cases arising under the abstract provisions of the Constitution and ‘Bill of Rights’ by deciding the appropriate scope of the moral principles of liberty and equality that those provisions embody and by making “fresh moral judgments” in order to apply those principles in concrete cases. [6] Dworkin also defends the charges against ‘moral reading’ that claims that it gives judges too much power by saying; “I don’t mean that there is no democracy unless judges have the power to set aside what a majority thinks is right and just. Many institutional arrangements are compatible with the moral reading; including some that do not give judges the power they have in the American structure. But none of these varied arrangements is in principle more democratic than others. Democracy does not insist on judges having the last word, but it does not insist that they must not have it”. [7] He goes on to say that ‘moral reading’ brings political controversies; therefore, a system of government that adopts the principle of ‘moral reading’ must decide whose interpretation will be authoritative [8] .

Dworkin argues that in a democratic system where ‘moral reading’ has been adopted, the theoretical argument among constitutional scholars and judges was never really about whether judges should change the constitution or leave it alone; it was always about how the constitution should be interpreted. [9] He says there are two views on how the constitution should be translated; ‘The Majoritarian Premise’ and ‘The Constitutional Concept of Democracy’. ‘The Majoritarian Premise’ are individuals in the society who strictly believe in the doctrine that says “Democracy means government by the people”. This is a thesis about fair outcomes of political process: it insists that political procedures should be designed so that, at least on important matters, the decision made would be one that a majority or plurality of citizens favour, or would if it had adequate information and enough time for reflection. [10] Without much thought, the idea of the majoritarian premise seems very friendly; this is because it is a goal which suggests that the laws enacted are those the majority of citizen would approve. Dworkin argues that although some individuals who accept this view often agree that the majority should not always be the final judge and the Supreme Court’s decision in cases like Brown v Board of Education of Topeka [1954] were right [11] , it should not be accepted. He criticises this view by saying: Legislators who have been elected, and must be re-elected, by a political majority are more likely to take that majority’s side in any serious argument about the rights of a minority against it; if they oppose the majority’s wishes too firmly, it will replace them with those who do not. For that reasons legislators seem less likely to reach sound decisions about minority rights than officials who are less vulnerable in that way. [12] In simpler words, Dworkin argues that this view is unfair because the needs of the minorities are not put into consideration, which is not what democracy should be. He is also against this view because he believes that there should be a limit on the influence individuals should have on the enacted laws, because if there is none, the idea of democracy would be defeated.

Dworkin defends the second view on ‘moral reading’ which is the ‘Constitutional concept of democracy’. This view denies that the defining goal of democracy should be a collective decision should be always that the majority would approve. It takes a defining aim of democracy to be a collective decision that should be made by institutions whose structure, composition and practices treat all members of the community, as individuals with equal concern and respect. [13] Dworkin defends this view by saying it protects and enhances the ‘equal status’ concept, because democracy means government subject to all conditions of individuals in society— conditions of equal status for all citizens; [14] in other words, it considers both the majorities and the minorities before making any political decision.

The second view on democracy that would be discussed is given by Jeremy Waldron. Waldron objects to judicial review of legislation on the ground that it effectively accords the views of a few judges ‘superior voting weight’ to those of ordinary citizens. [15]

Although Waldron is an opponent of judicial review, it must be noted that his argument is not based on whether rights ought to be protected, but how such protection of rights should be standardized. Waldron’s argument also has to do with why judicial review of legislation should be justified and not the functions of the government or executives. Waldron therefore suggest that before we decide whether judges should review and most likely change the political decisions, we must ask ourselves why we have legislatures. Why we voted these legislatures to decide anything in the first place?

Waldron begins his argument by saying that there are two types of judicial review a democratic system can adopt; the ‘strong judicial review’ or the ‘weak judicial review’. Waldron refers to ‘strong judicial review’ as a system by which: “courts have the authority to decline to apply a statute in a particular case (even though the statute on its own terms plainly applies in that case) or to modify the effect of a statute to make its application conform with individual rights (in ways that the statute itself does not envisage)” [16] …. Waldron defines a ‘weak judicial review’ as a system whereby the court scrutinises the laws enacted by the legislatures to make sure the laws do not violate the rights of individuals, but in this case, the courts do not declare the laws void, e.g. the United Kingdom.

Waldron believes that a society can function as a democratic society without judicial review as long as it has these four features; the legislatures, who are voted in by the society are dedicated to deliberating on how the society’s democratic institutions can be enhanced; secondly, there should be a general assumption in society that the judicial institutions which are set up on a non-representative basis are capable of upholding the concept of the ‘rule of law’; thirdly, Waldron suggest that there should be an assumption in the society that there are individuals in the society that are committed to idea of improving the rights of individuals; and lastly, the society should always assume that there is a continuous good-faith argument on how these individual rights could be improved.

The first assumption Waldron gives is basically a kind of proof for those who propose judicial review. Given the third assumption, he claims “there is no need for decisions about rights made by legislatures to be second-guessed by courts”. Given the fourth assumption, he argues that “allowing decisions by courts to override decisions…by legislatures fails to satisfy important criteria of political legitimacy”. [17] The only time these four assumptions should not be used in a democratic society should be in situations where the case in question has nothing to do with the democratic government, says Waldron.

Waldron concludes his argument by stating that judicial review is an attack to the idea of democracy. He argues that it does not provide the answers when disputes on individual rights are in question as they claim it often does. Therefore, says Waldron, this system should be considered to be politically illegitimate as far as democratic values are concerned, because by giving a small amount of unelected judges (unelected judges that are likely to deviate from a democratic perspective since they are not in the position of the legislatures who were voted in democratically) the privilege of deciding on what the majority has voted on is basically tarnishing the principles of political equality. In addition to a properly functioning judiciary, Waldron believes democracies should normally be expected to have citizens and legislators who care about, and are capable of protecting, the basic rights of members. [18] Hence, he claims, there is no compelling reason to prefer the decisions of judges to legislators where rights are at stake, and good reasons to believe that doing so detracts from important democratic values and rights. [19]

In conclusion, we cans see that the views given by these theorists are basically on how individual rights should be protected. Waldron suggest that by having individuals and legislatures in the society who are dedicated to improving individual rights would be an accurate functioning democratic society. But in my own knowledge, I would say that a democratic system should be in form of the ‘Constitutional concept of democracy’ suggested by Dworkin. I support this view because I believe in order for a democratic society to be successful, all aspect, individuals and everything the society constitutes of should be treated equally, especially individuals. Therefore, if we have institutions that functions this way, an institution consisting of individuals who are concerned with improving rights, they would have to do this by treating everyone in the society with equal concern and respect. This way, political decisions would be favourable to both the majority and minority. Here, individuals in the society are likely to support the decisions made; and this is because the needs and wants of individuals in society will be considered in one way or the other, since the institution making the decisions is one that deals with every little detail that affects the society.

BIBLIOGRPHY.

BOOKS

Dworkin. R, FREEDOM’S LAW (1996). Harvard University Press.

Freeman. M, Lloyd’s Introduction to Jurisprudence (1994), 3rd Edition. London Sweet and Maxwell.

McLeod. I, Legal Theory. 3rd Edition.

Simmonds. N. E, Central Issues in Jurisprudence (2008), 3rd Edition. London Sweet and Maxwell.

Waldron. J, THE CORE OF THE CASE AGAINST JUDICIAL REVIEW (2006). Yale Law Journal.

WEBSITES.

www.legalserviceindia.com

www.princeton.edu

www.mu.edu.tr

www.jstor.org

www.trinitinture.com

ojls.oxfordjournals.org

www.alever.net