In Defence of Empirical Entanglement: The Methodological Flaws in Waldron's Case Against Judicial Review

Abstract

Jeremy Waldron’s sustained critique of judicial review has provoked a series of responses endeavouring either to defend that institution or to join in the critique with renewed zeal. All of the responses to date accept the methodological premise of Waldron’s intervention – that judicial review may be defended or critiqued in abstract normative terms, once certain assumptions about a society’s governing institutions and political traditions hold. This response challenges that consensus and tries to change the terms of the debate. The main contention is that the moral justifiability of judicial review is a mixed normative/empirical question that cannot be satisfactorily answered by confining the empirical component to a set of very broad assumptions and then proceeding in a purely normative vein. This is obviously true (as Waldron concedes) of immature democracies, where problems with the functioning of representative institutions make it impossible to generalize about the relative merits of judicial versus legislative attention to rights. But it is also true of Western liberal democracies – Waldron’s main focus – because even in these societies the satisfaction of his assumptions is not uncontroversial and depends on the context-sensitive and historically aware methods that Waldron says he wants to avoid.