Transparency as a justification for legislative supremacy

Abstract

ABSTRACT While most arguments for legislative supremacy are grounded on a procedural account of democratic equality, others appeal not to the abstract qualities of legislative process but rather to the mystifying or non-transparent nature of judicial review itself. In this paper, I aim to excavate and clarify what we understand by the non-transparent nature of constitutional-rights jurisprudence, compared with legislative decisions concerning rights. Most commonly, critical and Marxist scholars understand judicial review as a mystifying practice in which contrived ‘legal’ modes of reasoning obscure the ideologies, interests or policies that constitute the real grounds of decision. That is to say, judicial reasoning obscures interests that are extraneous or antecedent to law, however, these might be understood. However, drawing on Pierre Bourdieu, I will argue that while judicial review can be understood as a quintessentially esoteric and thus as a dominating practice, its doctrinal artifice is nonetheless irreducible to interests that are antecedent to law itself. Rather, it generates forms of symbolic and social capital that are peculiar to law as a semi-autonomous social ‘field’. Nonetheless, non-transparency of this kind can be understood as an important kind of political domination that can support the argument for legislative supremacy