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Topic: The allegedly anti-democratic character of judicial review is often said to be justified by the fact that understanding rights and their implications is a matter of specialist expertise, not to be subjected to popular vote. Evaluate this suggestion. All of the essays considered — Waldron, Waluchow, Dworkin, Hutchinson — bear on this topic.

Judicial review is an instrument which provides the citizens with the constitutional remedy to seek redressal for the denial of individual rights. It is anti democratic to the extent that the courts, which adjudicate such cases, are presided over by few judges.   Waldron’s concerned citizen would not agree to abide by the nine member court as opposed to 309 legislators who discuss and collectively vote for and against the law. Can this be called anti democratic? The Charter is established as set of moral principles to ensure judicial equity in the society. The role of the court is to interpret the law made by the legislatures. “Courts are forums of principle, not of policy “argues Dworkin. He was of the opinion that the courts do have a say in the matters of principle. Waldron does not agree with the sentiment because the democracy in the rule by the people. However, his view is based on ideal assumptions which may not always exist in a democracy. The third view on judicial review argued for by Hutchinson debunks the non political and neutral view of judicial review.  Hutchinson is of the opinion that the political vision determines the judicial review rather than any set of legal principles. Each of the argument presented here shows that the judicial review has a role in democratic society. The essay argues that the judicial review is not anti democratic; they uphold the rights of the citizens in a political framework enshrined in the charter.

Laws are moral principles which uphold the order in the society. The absence of judicial review will create an abnormality in the adjudication process. The Charter provides the judiciary with the powers to look into cases of violation of individual rights. In the Doucet’s case the charter remedy provided to the victim was upheld by the trial court and the Supreme Court. This was a case of domestic violence needing the court’s intervention to decide the availability of duress to the defense.  Dworkin points out that the court must apply the rules. He further adds” judicial decisions enforce existing political rights” (Dworkin).  Those who argue against the judicial intervention have to bear in mind, the percept that the judiciary is a part of the political system. In the democratic political system, the judiciary, the executive and the legislature, three together form the government. Legislatures are expected to make laws and their interpretation is left to the courts. “Courts are inevitably full participants in the political process” (Hutchinson). Therefore, the courts have a right as experts in law based on moral principles to enforce the law.

The courts articulate the political values in a society. The legislature and the courts complement each other in a political process. Waldron is a trenchant critic of the judicial interference and argues that the democracy is a rule of the people. There is an element of absolutism in this assertion. Further the argument that the judicial review takes away the focus from the social problems does not hold good. The judicial review does not occur in a social vacuum. The courts are enforcing the law given in the statutes. Their power comes from the charter which is created by the legislature.  The criticism that the only few decide the fate of law hits at the very principal of accountability. It is in the wisdom of the legislature that they make laws.  The courts are coming into picture only when the values given in a law is violated. These are moral questions which needs a framework and that is the purpose of charter. The critics state that the judiciary remains rule driven and therefore become anti democratic. Waluchow rightfully points out that the charter is a means to solve the problem of inflexibility. Therefore, the courts become a vehicle to enforce the charter, which is a political device created for the sake of the people.

The courts are not competent to override the democratic will of the people. The central problem with the judicial review is that the small minority overrules the laws made by a large majority of the elected representatives. Waldron calls it outcome related activity, which gives decision in favour of one party; the charter used for adjudication is backdated; and the courts do not give adequate defense for their judgments. On other hand, the legislature is a process related activity in which the decisions are taken on the basis of fairness and equality(Waldron).The election of members to the assembly and their decision making is therefore above board. In short, the courts are not elected bodies and therefore they should not have powers of judicial review. This raises the question of utility of law itself. Law exists for the sake of fair society. Judges follow the doctrine of political responsibility in enforcing the law (Dworkin). Further, the judges are not deputy legislatures; they are adjudicating on the moral principles. Thus, the courts only do their legal duties in the democratic system.

Legislature is a democratic institution where as the courts are non political institution. The major reason for some the courts become antidemocratic is that they are not political. Hutchinson points out that the courts are “non political and neutral” is an official perception created in the society. According to him, the courts are partisan and non objective. The argument here is the legal principles are enforced by the courts. The legal principles do not stand alone in the political society. The three main reasons for politicalness of judiciary are: First, the legal community is an extension of the political system. Second, the judges have to choose between two more principles. That becomes a matter of political choice. Third, the principles administered in law are not objective (Hutchinson). The point here is that the courts function within the parameters of the political system. Their character may appear neutral but their values are essentially same as those who represent the people in legislature. In fact the courts may find itself taking many decisions which may not be principled. Therefore, the courts are part of the political structure and represent the community.

The court and the legislature are basically competing against each other to determine a political vision for the society.  There is a great deal of confusion among the critics of the judicial review regarding the undemocratic nature of the courts. The supporters of judicial review point out that the interference in policy matters is not part of the adjudication (Dworkin). The courts are working towards advancing the collective good of the society. Another criticism against the courts is that they exercise their discretion in interpreting the law.  Dworkin disagrees with this perception to state that the courts only “but  just  confirm or deny rights.” This formulation is important because the courts take up the cases of the individuals who are denied their rights in terms of substantive principles. The courts look into arguments of principle and enforce the rights. Further they never make new laws as has been the case with the legislatures. However, Hutchinson disagrees with the right to validation given to courts. In fact, he makes the courts an extension of political discourse in the society. Therefore, the courts can be said to articulate the political values of the society.

The judicial review is essential for an evolving political system. Can moral questions be determined by the members of the assembly? Are they competent to deal with issues of morality? There can be situation where we don’t have right answers to moral questions presented then we do have role for charter or judicial review (Waluchow). It is said that the charter is formed out of “Circumstances of politics” (Waldron).  The Charter is a compromise, which the group agrees in spite of disagreements among the members. However, the argument is that the judicial review like charter forestalls the discussion on rights. Waluchow puts forth the concept of “Living Trees” to overcome the dispute between the critics and the supporters of the judicial review. Charter is a part of the constitution and it is must be allowed to grow with the passage of time. It is contemporary in character and on changing ideas of justice (Waluchow). The judicial review is needed to the inherent weaknesses of the common law and fixed rules of the constitution. The legislatures do not possess the expertise to from “common law understanding” (Waluchow).Therefore, the judicial review is needed in the “circumstances of politics” (Waldron).  

Judicial review is an empowering instrument of the individual rights.  The major plus points of the judicial review are: first, it provides the constitutional guarantee of individual rights; second, the reviews happen after the legislature makes the law; third, the courts follow the charter in enforcing the law. Hercules, the super human judge cited in the texts of Dworkin reinforces the need for the judicial review. Judges are philosopher guides in increasing polluted political system. The political theory endorses the constitution for the sake of political morality. The law is a “seamless web” (Dworkin) which means there is more to what is given in law. In the Herculean scheme, the litigant can expands the scope of law. The justice is done depending upon the facts of the case rather than the discretion. The judgment gives in based on sound beliefs and not because judges his or her proclivities. Dworkin presents the contrarian character called, Herbert to show that the judge when they follow the rules and if that fails makes the law. The discretion does not form part of the judicial review; and therefore the litigant approach the courts for enforcement of their rights.

The judicial review is required to maintain the democratic institutions. Waldron presents the four assumptions to deny the courts right to review the laws passed by the legislature. First, the nation with a sound and working democratic institutions; second,  the political system with an independent judiciary with no political appointments; third, the enforcement of minority rights ; and the rights can be disagreed by some groups ( Waldron).  The best evidence against these assumptions is given by Hutchinson.  He points out “the judges are up to their necks in ideological muck`` (Hutchinson).  He goes to argue that the courts function under a political system. The judicial review is anti democratic means to question the democracy itself (Hutchinson).   Common law adjudicated clearly establishes that the political shades of the judges in courts. The judicial review is a political exercise within the contemporary situation. There is nothing anti democratic for the citizens, they just have to choose between a court system which allows the review or the purely depends on the wisdom of legislature (Hutchinson).    

In conclusion four points stand out. First, the courts are part of the constitutional arrangement, which deal with legal principles and moral issues. They are neither into policy making nor into making of new laws.  They are obliged by the charter to interpret the violation of the citizen’s rights and get them enforced.  Second, the criticism that the judicial review is anti democratic fails; due to the fact that the legislature and the courts have separate mandate in the political system. The narrow view of nine judges against three hundred nine legislators undermines the very precept of democracy. The legislatures make laws and they need to be interpreted from time to time. If the law remains as they are then the citizens may never get the justice from the system. Third, the “Living trees” concept shows that the judicial review can help the laws to evolve and grow with the times. The violating of rights can be addressed only if the system evolves into a better system. If the system does not have judicial review then the choices that the citizens have are limited. The citizens then will have to agree with the majoritarian view of the legislature, which may not meet the demands of all the citizens. Fourth, the judicial review process depends on the quality of judges, they need to be like Hercules, remain away from the temptation of individual discretion.  

References

Dworkin,R.(2015). Hard Cases. Accessed at:connect.ubc.ca

Hutchinson,A (2015)Judges and Politics. Accessed at:connect.ubc.ca

Waldron,J(2015)The Core of the Case Against Judicial Review . Accessed at:connect.ubc.ca

Waluchow,W.(2015).Constitutions as living trees. Accessed at:connect.ubc.ca