• Home
  1. Home
  2. Democracy and Judicial Review: Are They Really Incompatible?
Scientific article
OA Policy
English

Democracy and Judicial Review: Are They Really Incompatible?

Contributors

Lever, Annabelle

Published in

Perspectives on Politics, vol. 7, no. 4, p. 805-822

Publication date

2009

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 likeWaldron 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 reviewdoes 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 thanwould be made by other means.

Keywords

  • Democracy
  • Judicial review
  • Equality
  • Rights
  • Judges
  • Supreme Court
  • Jeremy Waldron
  • Eisgruber
  • Brettschneider
  • Representation
  • Accountability
  • Participation
  • Deliberation
  • Citizenship

UNIGE affiliation entities

Citation (ISO format)

LEVER, Annabelle. Democracy and Judicial Review: Are They Really Incompatible? In: Perspectives on Politics, 2009, vol. 7, n° 4, p. 805–822. doi: 10.1017/s1537592709991812

Main files (1)

Article (Accepted version)

Identifiers

963views
1828downloads

Technical informations

Creation

13/04/2012 00:45:00

First validation

13/04/2012 00:45:00

Update

14/03/2023 17:22:35

Status update

14/03/2023 17:22:35

Last indexation

29/10/2024 19:21:37
All rights reserved by Archive ouverte UNIGE and the University of Geneva
OpenAIRE Indexed & Validated