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BCL Law Notes Constitutional Theory Notes

Judicial Review Notes

Updated Judicial Review Notes

Constitutional Theory Notes

Constitutional Theory

Approximately 192 pages

A collection of the best BCL notes the director of Oxbridge Notes (an Oxford law graduate) could find after combing through applications from outstanding students with the highest results in England and carefully evaluating each on accuracy, formatting, logical structure, spelling/grammar, conciseness and "wow-factor". In short, these are what we believe to be the strongest set of BCL notes available in the UK this year. This collection of notes is fully updated for recent exams, also making them...

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12. Judicial Review and Democracy

Preliminary points

  • Whether JR of legislation is desirable — in a particular constitutional setting, or normatively (in the sense of preferring one constitutional setting over another)

    • 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

    • 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

    • Some rights are in conflict — eg negative (liberty) v positive (socioeconomic) rights

    • 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

    • 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

    • <> 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)

    • 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

    • Disagreement may only arise in particular case — judiciary has advantage of determining at that point

    • 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

    • Executive necessarily circumscribed by higher power — but not necessarily so where derives authority directly from Constitution: Williams (No 1)

  • Strong<>weak JR

    • Strong JR — refusal to apply, modification of meaning or striking down legislation

    • Weak JR — eg UK declarations of incompatibility triggering legislative reaction / NZ & Vic interpretive provisions (cf Momcilovic)

    • 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

    • Surely some level of institutional JR inevitable — eg do legislatures have the power to abolish courts?

  • Ex post <> ex ante review

    • 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 —

    • Best outcome without sacrificing minimum of process

    • Best process without sacrificing minimum of outcome

    • Maximisation of the two

  • Commonly suggested that instrumental arguments favour JR <> non-instrumental (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

    • 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)

    • 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

    • No empirical premise to suggest that democracy produces objectively “best” outcome in every case — some citizens hopelessly uninformed...

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