Democracy, Judicial Review and Disagreements about Justice

Abstract

Jeremy Waldron claims to have identified the core of the case against judicial review. He argues that as citizens have fundamental but reasonable and good faith disagreements about justice (ie, we live in the “circumstances of politics”) it is morally obnoxious for unelected judges to strike down primary legislation. Waldron, though, does accept the permissibility of judicial review of administrative and executive decision-making. This paper offers an account of what makes a disagreement about justice “fundamental” and, in light of this, argues that the intrinsic fairness considerations that imply that the judicial review of primary legislation is impermissible apply equally to the judicial review of administrative and executive decision-making. So, either both are permissible or neither is. The paper concludes by showing that the circumstances of politics have considerably fewer implications for the issue of the proper role of judicial review than Waldron's arguments imply.

Keywords:

• Democracy
• judicial review
• Jeremy Waldron
• fundamental disagreements about justice
• circumstances of politics