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Judicial Review Notes

BCL Law Notes > Constitutional Theory Notes

This is an extract of our Judicial Review document, which we sell as part of our Constitutional Theory Notes collection written by the top tier of Oxford students.

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? Whether JR of legislation is desirable --- in a particular constitutional setting, or normatively (in the sense of preferring one constitutional setting over another) o If yes in normative sense --- whether JR of legislation requires that
? Broad constitutional terms be enacted and read in a moral way; or
? General principles be extrapolated from specific provisions (as in France) or under the common law generally
? Scope of rights to be protected the subject of another substantial debate o Uncertainty in that argument sometimes treated as an answer to JR itself --- will only serve to distort rights --- therefore better to leave to flexible legislature o Some rights are in conflict --- eg negative (liberty) v positive (socioeconomic) rights o Broad rights (property, free speech) v tempered rights (political communication, acquisition of property on just terms)
? "Watershed" social development moments <> insurance of minimum standards of liberty o Waldron often uses Roe v Wade on abortion, or legalisation of homosexuality as yardstick
? Mabo & Native Title? Better created by legislature but Keating himself said better to come from Courts --- is this too far?
? South Korean court ruling criminalisation of adultery unconstitutional --- 1953 Statute & 5th challenge --- citing social change & reduction in prosecutions
? Courts not a multipurpose tool --- eg Khmer Rouge trials as truth commission o <> Kable, or proceeds of crime, or incremental abrogation to jury trial
? Perhaps JR more suited to the latter?
Assumptions for arguments on either side ---
Functioning society & institutions---
? Deliberative democratic legislature with universal adult suffrage and safeguards such as bicameralism (arguments do not apply with equal force to monarchies) o Problems with this majoritarian premise
? Independent & unelected judiciary, specifically trained or qualified &
immune from political influence --- with judges who are conscious of legitimacy and of rights
? Community that is generally committed to rights & the common good, but who disagree about the appropriate scope of rights o Disagreement may only arise in particular case --- judiciary has advantage of determining at that point


o Disagreement, even if general & principled, may not arise on particular low-profile but insidious legislation --- judiciary has advantage of determining on motion of any citizen --- in that way more democratic IE --- question is which of two institutions should have determinative say on debates about appropriate scope of rights

<> Is judicial review a constitutional mechanism required only in societies where ordinary democratic functions are bound to fail?
? akin to or perhaps better remedied by supermajority / representation rules in Switzerland etc
? dysfunctional legislatures, corrupt political cultures, legacies of racism or prejudice Nature of judicial review
? JR of legislation <> of executive action o Executive necessarily circumscribed by higher power --- but not necessarily so where derives authority directly from Constitution: Williams (No 1)
? Strong<>weak JR o Strong JR --- refusal to apply, modification of meaning or striking down legislation o Weak JR --- eg UK declarations of incompatibility triggering legislative reaction / NZ & Vic interpretive provisions (cf Momcilovic) o Canadian middle ground --- Courts can strike down for inconsistency with Charter, unless legislation expressly overrides it (rarely does so)
? Waldron says only slightly insulates from argument from democracy --- but would seem to make a considerable difference
? JR for rights <> JR for distribution of power (eg within federation / art 34&37 disputes in France) --- necessary to have some arbiter but Waldron opposes this too o Surely some level of institutional JR inevitable --- eg do legislatures have the power to abolish courts?
? Ex post <> ex ante review o Ex post creates problems with certainty <> ex ante lacks individual application & more prone to error
? Ordinary courts <> specialised constitutional court (eg France) Process<>Outcome/substance || Instrumental<>non-instrumental
? Raz prefers outcome-related reasons
? Methods of maximisation ---
o Best outcome without sacrificing minimum of process o Best process without sacrificing minimum of outcome o Maximisation of the two
? Commonly suggested that instrumental arguments favour JR <> noninstrumental (process) arguments against --- but both arguments cut both ways

Procedure ---
? Waldron --- Democracy, independent of its outcome --- gives every vote equal weight
? <> Dworkin --- procedure is appropriate method of making judgments about substance --- procedures are assessed by their outcomes o Dworkin acknowledges that legislatures are guardians of the constitution too Substance --- respect for fundamental rights
? Outcome/substance cannot be grounded in any particular political outlook ---
but rather prefer structure that is more likely to give "good" result, whatever that might be
? Necessarily requires degree of sacrifice of democratic self-government ---
democracy requires equal concern & respect for citizens and is something more than majority rule (majoritarian premise) o UK<> US --- should majority via parliament determine the scope of those rights?
? Therefore decisions that deny fundamental rights are undemocratic as denying minimum level of concern & respect for minority, even if endorsed by majority: Dworkin
? Remains to consider which institution is most likely to meet those substantive and procedural ideals Chicken & Egg situation
? Procedure comes first --- one man one vote is an absolute moral good, whereas fundamental rights require evaluative judgments --- Utopian benevolent dictator would nonetheless be bad outcome o No empirical premise to suggest that democracy produces objectively "best" outcome in every case --- some citizens hopelessly uninformed etc --- but no means of agreeing on the appropriate procedure so adopt formal equality at the head of the stream o But procedure may not be an absolute good--- premise is equal franchise, but no unanimity on that either --- doesn't extend to children, prisoners, mentally ill, etc; compulsory voting; in the past to property owners, in UK to immigrants, members of Commonwealth, etc
? Substance must come first ---
o Procedure argument is that---
? People are free when they do not submit to the will of another, but consider that they are part of the governing body
? Or more modestly --- can be convinced to obey a law because of the process by which it was adopted rather than its substance o BUT --- the reason we accept decisions based on process is because we accept we may be wrong --- precisely because the majority disagrees with us
? Same characteristics of legislature give confidence in process and in outcome --- artificial to divide up

If no doubt is left (eg in genocide situation), then process no longer makes legitimate --- eg if group of terrorists use majority vote to determine what torture to use, not legitimised by allowing victim to vote
? Therefore arguments from substance must prevail o But if democratic legitimacy depends on substance ---
? Dworkin --- if majority votes for law infringing a right & that right is essential to legitimacy of system, then minority can ask for adjudication (by court or by legislature)
? But there is a disagreement about the scope & dispensability of the right --- so depends on whether court gets the decision correct --- can't judge outcomes but can judge process
? IE back to substance prevailingProcess-related / non-instrumental arguments Liberte --- Conception of freedom
? People are free when they can participate in ruling body & are not ruled by external monarch or aristocracy o Judges can be equated to aristocracy
? Although legislatures also impose will of others on us
? And judges are appointed & given power by the Constitution which we enact and are free to amend o Therefore if majoritarian premise is overridden in a particular case or constitutional setting, it is a cost in freedom/liberty as compromises self-government
? Alternatively --- self-government is recognising authority as a people to act on certain terms --- includes giving role to a judiciary o Any conception of the State gives some role
? ME: not a meaningful definition of freedom --- better reflected in secondary stage by scope of actual legislation --- people who shackle themselves are nonetheless not free o If freedom is to be abstracted to the constitutional level, why not abstract it to the pre-constitutional level --- people are always free to petition an amendment or stage a revolution
? Freedom under legislation, to conduct our affairs
? Freedom under the constitution, to govern as we please
? At large, to amend the constitution as we please
? This last point is the difference between tyranny or colonial rule and judicial supremacy --- arguably a people cannot be free unless they have power at all levels
? We place limits on our own freedom at each level --- by laws restricting conduct, by procedural & substantive limits on parliament, and in the manner of amendment (not by violence or revolution) o Freedom & liberty are relative and not absolute goods


o JR of legislation can spark as much public debate about morality as legislative action --- but different scope for individuals to engage &

Egalite --- Democracy is more than majoritarianism
? Ekins --- Representation & Judicial Supremacy --- JR is not the people ruling and so risks freedom o but is it necessary for a defence of JR to show that it is the people ruling? --- or is there another ground for legitimacy?
o Dworkin --- Court is interpreting whole of people through Constitution and guaranteeing rights thereunder
? Majoritarian premise --- in ideal democracy every law will be approved of by majority of citizens, rationally acting and fully informed o <> Broader definition of democracy requires equal treatment ---
middle ground between substantive and formal equality
? unqualified formal equality is not desirable in any other area ---
why should it be so for governance
? EG if majoritarian concern foreclosed public office from certain races, no moral cost in sacrificing majoritarian democracy to extent required to avoid the substantive evil
? IE process alone cannot be conclusive
? Dworkin's "statistical"<>"communal" collective action --- decisions by majority <> actions by the (unitary) "people" (eg collective guilt, orchestra examples) o EG --- if 60% of people want to spend money on parks & 40% on museums, should not spend all on parks o Unlikely example & may be good reason why no person voted for equal distribution --- but illustrates difficulty with majorities of majorities making decisions
? Rubenfeld --- self-government is by a 'people' not necessarily in the present but over a period of time Right to a hearing
? Right consists of o Opportunity to voice a grievance o Reasons for decision impinging on rights o Duty to reconsider initial decision giving rise to grievance
? Right to hearing valued independently of merits of decisions --- on dignitarian basis
? <> "watchdog model" of judicial review --- stopping legislature from overstepping bounds of fair legislative acts
? On one argument --- nothing intrinsically judicial in procedures designed to protect a fair hearing o IE could argue this is just an instrumentalist view as well ---
constitution should protect right to fair hearing, and JR achieves that purpose o IE could equally establish legislative review to perform this function

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