Democracy, Rights Disagreements And Judicial Review

Abstract

Is judicial review of legislative enactments democratically legitimate? Does it matter? This essay interrogates the usually poorly understood relation between judicial review and democracy, focussing on the fact of reasonable disagreements about the way in which the judiciary should interpret rights. A number of views about the democratic legitimacy of judicial review, including those of Dworkin, Waldron and Michelman, are examined. I argue not only that judicial review suffers from a deficit of democratic legitimacy, but also that this shortfall has important practical consequences for politics and judicial practice. Although this essay is primarily theoretical, it draws attention to the implications of the arguments it considers and advances for South African constitutionalism.