An Introduction to Comparative

Constitutional Law

9. Judicial Review 1:
Waldron-Dworkin debate
WS 2020-21

DR. FELIPE OLIVEIRA DE SOUSA, MPHIL

Senior Researcher at the Center for Law,
Behaviour and Cognition (CLBC)
 Syllabus
Date Topic
1. 22.04.2021 Basic Concepts 1
2. 29.04.2021 Basic Concepts 2
3. 06.05.2021 United States
4. 20.05.2021 Germany
5. 10.06.2021 France
6. 17.06.2021 United Kingdom
7. 24.06.2021 Brazil (w/ guest lecturer)
8. 01.07.2021 China
9. 08.07.2021 Judicial Review 1 (w/ guest lecturer; tbc)
10. 15.07.2021 Judicial Review 2
11. 22.07.2021 Global Constitutional Law
12.
13.
14.

DR. FELIPE OLIVEIRA DE SOUSA | AN INTRODUCTION TO COMPARATIVE CONSTITUTIONAL LAW | 9. Judicial Review I
What is judicial review?

• Strong judicial review of legislation

• Contrast ‘weak’ judicial review (UK, Canada?)
• May be ex post or ex ante
• May be carried out by ordinary courts or by a
specialised constitutional court
Waldron’s ‘Core Case’ Against
Judicial Review
Waldron‘s central claims
• „Judicial review of legislation is inappropriate as a mode of final
decision-making in a free and democratic society“;

• His argument against judicial review “is independent of both its

historical manifestations and questions about its particular effects“;

• Judicial review (i) does not „provide a way for a society to focus
clearly on the real issues at stake when citizens disagree about
rights“; and (ii) it „is politically illegitimate, so far as democratic values
are concerned“;
Framing the issue
• Waldron‘s argument is against strong rather than weak judicial
review of legislation (though it may have implications for other
forms of judicial review – e.g. of administrative and executive
actions);

• His argument is also conditional: if any of the conditions he

identifies fail [see next slide], the argument does not hold and
judicial review may be justifiable;
Four Assumptions
1. Democratic institutions in reasonably
good working order
2. Judicial institutions in reasonably good
working order
3. A commitment on the part of most
members of the society to the idea of
individual rights
4. Persisting, substantial and good faith
disagreement about rights
Waldron‘s Argument (1)
• If all these four assumptions are in place, the society in question
ought to settle their disagreements about rights using its legislative
institutions;

• If they are in good working order, legislatures have in general better

democratic credentials to decide cases involving disagreement about
rights than nonelected and nonrepresentative ones (such as courts);
Waldron’s Argument (2)
Outcome-related reasons
• ‘reasons for designing the decision-procedure in a way that will ensure the
appropriate outcome’

Process-related reasons
• ‘reasons for insisting that some person…participate in making a given decision
that stand independently of considerations about the appropriate outcome’

Central claim: there are both outcome-related and process-related reasons for
preferring legislatures over courts.
“[Whereas] the outcome-related case is inconclusive (or it argues in favour of
legislatures)…the process-related case is almost wholly on the legislative side”
Outcome-Related Reasons
• Courts are concerned with individual cases – legislatures have a wider pool of
information

• ‘Bills of Rights…tend to encourage a certain rigid textual formalism’

• Courts tend to be preoccupied with interpretive debates, precedent etc., to establish

their legitimacy, in a way that it usually distracts them from engaging with moral issues
directly and to go to the heart of the matter

• Legislatures may be hasty or sectarian, but ‘hasty or sectarian legislating is not part of
the normal theory of what legislatures are set up to do’

• Legislators give reasons for their votes as much as judges do

Process-Related Reasons
Cn disagrees with a decision that has been made on a rights-issue.
What can we say to her to reassure her that the decision has been
made fairly?

Cn asks:
i. ‘Why did they decide?’ and
ii. ‘Why did they use that decision-procedure?’
Process-Related Reasons
Cn asks:
i. ‘Why did they decide?’ and
ii. ‘Why did they use that decision-procedure?’

The legislature responds:

i. We were selected in a fair election in which your vote was counted equally to everybody
else's
ii. We used a majority vote to decide because that counts the votes of all representatives
equally

“The theory is that together these provide a reasonable approximation of the use
of [a majority vote] among the citizenry as a whole…” and roughly “satisfy the
demand for political equality – that is, equal voice and equal decisional authority”
Process-Related Reasons
Cn asks:
i. ‘Why did they decide?’ and
ii. ‘Why did they use that decision-procedure?’

• According to Waldron, the Court has no good answer to these two

questions

(a) Legislators are regularly accountable to their constituents via popular

elections in a way that judges are not

(b) Courts, as legislatures, ultimately make their decisions by counting heads

(majority decision-making)
A Tyranny of the Majority?
• There are bound to always be some people who believe that certain decisions violate
their rights – this may be a minority or a majority. This is the fate of democracy

• Just because they think this doesn’t mean they’re right!

• “the term should not be used simply to mark the speaker’s disagreement with the
outcome of a majority decision”

• “Is the tyranny of a political decision aggravated by the fact that it is imposed by a
majority?... I do not see how it could be.”

• “Nothing tyrannical happens to me merely by virtue of the fact that my opinion is not
acted upon by a community of which I am a member” (tyranny of the majority, in the
relevant sense, is in fact a non-core case)
Non-Core Cases
• Where the 4 assumptions do not hold, judicial review might be
justifiable, however:

• Where legislatures are defective, we should not assume that courts will do a
better job

• In circumstances where judicial review may be justified, defenders “ought to

start making their claims for the practice frankly on that basis…rather than
preaching it abroad as the epitome of respect for rights and as a normal and
normatively desirable element of modern constitutional democracy”
„There is always a loss to democracy when a view about the conditions
of democracy is imposed by a non-democratic institution, even when
the view is correct and its imposition improves democracy“ (Law and
Disagreement)

“There is something democratically incomplete – certainly something

unpleasantly condescending – about a constitution that empowers a
small group of judges or other officials to veto what the people or their
representatives have settled on as their answers to disputed questions
about what democracy involves“
Dworkin’s Defence of Judicial
Review
Dworkin‘s central claims
• There is nothing inherently anti-democratic nor inherently democratic with judicial
review;

• It all depends on how judges exercise their role as interpreters of the Constitution (in
accordance with the constraints set by constitutional integrity and history or not);

• Lawyers and judges have no real option but to „treat the constitution as expressing
abstract moral requirements that can only be applied to concrete cases through fresh
moral judgments“ (p. 3);

• The moral reading of the Constitution does not give judges absolute power to impose
their own moral convictions on the rest of us (p. 11) and it is “practically indispensable to
democracy“ (p. 7);
Dworkin‘s aims
• Dworkin disagrees with the way the issue of judicial review is often framed
by constitutional scholars and wants to change the terms of the debate;

• In his view, the crucial issue is not whether judicial review offends
democracy or how far democracy can be compromised in order to protect
other values (such as individual rights). The core issue is „what democracy,
accurately understood, really is“. It is about the „fundamental value or
point“ of democracy (p. 15);

• He claims that any sensitive answer to this question must distinguish two
conceptions of democracy: a majoritarian and a communal one;
Dworkin’s Argument
• Dworkin compares the two conceptions of democracy on 3 fronts:
• Equality
• Liberty
• Community

• He concludes that:
• The partnership/communal conception is superior to the majoritarian
conception on each front
• There is no reason to suppose that the partnership conception forbids judicial
review
The Partnership
Conception of Democracy

‘self-government means government not by

the majority of people exercising authority
over everyone but by the people as a whole
acting as partners’ (Justice for Hedgehogs)

• Majoritarianism views democracy as

statistical collective action

• The partnership conception views it as

communal collective action
 The communal conception, focused as it is on treating all members of
the community with equal concern and respect, “offers no reason why
some nonmajoritarian procedure should not be employed on special
occasions when this would better protect or enhance the equal status
that it declares to be the essence of democracy” (p. 17)
Liberty
• There is a widespread notion that people are free when they govern themselves

• This cannot mean individual freedom – it can only mean collective freedom =>
communal collective action

• To share in the value of collective freedom, one must be treated as an equal member
of the political community

• This means their rights must be protected

• On the majoritarian conception, the power of any individual to influence national

decisions is so tiny that their positive liberty is significantly reduced. Individuals “are
not free…[and] must often bend to the will of others”
Equality
• Waldron’s argument – majority voting treats people as equals by
counting each person’s opinion equally

• This suggests political equality = equal influence. But is this desirable

and/or realizable?

• A better interpretation (according to Dworkin) – equality of status

• Judicial review does not treat anyone as a second-class citizen

Community
• Does majoritarianism promote civic virtue by leaving matters of high
moral-political principle to be determined in the political arena?

• Judicial review can also promote public discussion of moral-political issues in

principled terms

• The political arena is all-too-often dominated by partisan confrontation

• It is “dubious” the assumption that “public discussion of constitutional justice

is of better quality and engages more people in the deliberative way…if these
issues are finally decided by legislatures rather than courts” (p. 30)
Community
• Does majoritarianism help embed a sense of fraternité by ensuring
that the community’s values prevail?

• The ‘community’s values’ should not be confused with the values of a

majority

• Fraternité is only valuable if all members of the community are treated with
equal respect

• This ideal fits much better with a communal conception rather than with a
majoritarian conception of democracy
 The values of liberty, equality and community
all rely on a sense of communal collective action

Þ The partnership conception of

democracy is superior to the majoritarian
conception
Dworkin’s
Conclusion One is only a true member of a community if
one’s rights are respected

Þ Judicial review does not offend

democracy if it protects rights, even
when it goes against majoritarian
decisions
Other reasons for judicial review
• The disenchantment with ordinary politics;

• The claim to justice:

American society „is a more just society than it would have been had its
constitutional rights been left to the conscience of majoritarian
institutions“ – i.e. judicial review may make a society more just (whether or
not it is compatible with democracy)

• Historical/Empirical ones:
the Supreme Court, at least in the US, was a catalysor of important public
discussions in a variety of constitutionally relevant and contested topics
(abortion; racial segregation), improving citizens‘ participation in the
constitutional process as a whole;
A final quote

„We…do play a part in a common constitutional venture in the United

States. It is a different venture, to be sure, from what it would be if all
great decisions of principle were taken by majority vote. But it may be a
better one – better suited to developing a national sense of justice, and
to keeping our spirit of liberty alive – because it engages us as moral
deliberators and advocates rather than just as numbers in a political
count“