Representation and Waldron's objection to judicial review

Oxford Journal of Legal Studies

Volumn 26, Issue 4, 2006, Pages 733-751

  Kyritsis, Dimitrios ^a  

^a NONE

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EID: 33845757268     PISSN: 01436503     EISSN: 14643820     Source Type: Journal    
DOI: 10.1093/ojls/gql029     Document Type: Review

References (54)

1. B. Manin The Principles of Representative Government (Cambridge: CUP, 1997) at 174 (hereafter referred to as PRG).
2. It's more accurate to say that constitutional review is the most dramatic instance of the legitimacy puzzle, and this is the reason that I take it as my point of focus. But it is far from being the only institutional arrangement that gives rise to it. The legitimacy puzzle stings all those legal systems where courts have the power to decide - on the basis of moral considerations - to what extent their judgment should be constrained by the acts and decisions of other institutions, including the legislature, whether these moral considerations are entrenched in a written constitution or not. Thus, it can also be said to sting the English practice of judicial review of administrative action, whereby courts have the power to review administrative decisions for their conformity to a set of substantive moral values. The vigorous theoretical debate about the foundation of this practice bears witness to the fact that there is indeed a puzzle here. In fact, for many English public lawyers the puzzle does not concern solely the relationship between the courts and the executive but primarily the relationship between the courts and the legislature. For an overview of this on-going debate and the opposing camps see the articles collected in C. Forsyth (ed.), Judicial Review and the Constitution (Oxford: Hart Publishing, 2000).
3. The Federalist no. 78 (A. Hamilton) in The Federalist or, The New Constitution, edited by Max Beloff (Oxford: Basil Blackwell, 1948) at 398.
4. J. Waldron, Law and Disagreement (Oxford: OUP, 1999) (hereafter referred to as LD).
5. Here are a few recent examples of this trend: R. Dworkin, Freedom's Law: The Moral Reading of the American Constitution (Cambridge, Mass.: Harvard University Press, 1999) at 1-38
6. C. Eisgruber, Constitutional Self-Government (Cambridge Mass.: Harvard University Press, 2001)
7. A. Harel 'Judicial Review: A Democratic Justification', 22 Law and Philosophy (2003) 247-76.
8. Needless to say, it was John Hart Ely who inaugurated this line of argument in his seminal book Democracy and Distrust: A Theory of Judicial Review (Cambridge Mass.: Harvard University Press, 1980).
9. Though sympathetic to judicial review, Larry Sager has expressed his doubts about the fruitfulness of this approach in 'The Domain of Constitutional Justice' in L. Alexander (ed.), Constitutionalism: Philosophical Foundations (Cambridge: CUP, 1999).
10. This is the crux of Dworkin's claim. Importantly, Dworkin insists on the contingent nature of this justification. He writes: 'Democracy does not insist on judges having the last word, but it does not insist that they must not have it'. See Dworkin, Freedom's Law, above n 5 at 7.
11. LD 102.
12. LD 229.
13. LD 245 (emphasis in the original). Compare LD 107, where Waldron cites approvingly what he calls Raz's Argument: 'Certainly any decision-procedure which addresses the circumstances of politics has to look technical . . . law can be authoritative (in [Raz's] sense) only if recognizing something as law is an alternative to trying to figure out for oneself what is to be done about the matter that the law addresses; it can be authoritative therefore only if the method of recognizing something as law seems arbitrary in relation to the substantive merits. That applies also to decision in the circumstances of politics'.
14. LD 164-87.
15. LD 100.
16. LD 101.
17. On the other hand, it doesn't leave them any power at all. They retain the power to introduce an option in the lot, when nobody else advocates it, see LD 113.
18. LD 113.
19. LD 114.
20. LD 264.
21. LD 223.
22. LD 109 (emphasis in the original). As will be argued below, there are different conceptions of how the institutional role of the representative is a function of the constituents' claim to have their views and interests respected.
23. LD 120.
24. LD 293-4.
25. J. Waldron 'Disagreements on Justice and Rights', 6 NYU Journal of Legislation and Public Policy (2002/2003) 5 at 7.
26. L. Alexander 'Is Judicial Review Democratic: A Comment on Harel', 22 Law and Philosophy (2003) 277-89 at 279.
27. LD 110, n 60.
28. It is noteworthy in this respect that hardly any theorist cares to raise the question whether judicial review would be compatible with a system of direct democracy, which is the obvious alternative to representative democracy. Admittedly it is hard even to pin down what a direct democracy would look like more precisely.
29. Hanna Pitkin speaks of mandate- and independence-conceptions of representation. See her The Concept of Representation (Berkeley: University of California Press, 1967) at 144-67. Her distinction captures the element that the distinction between the 'proxy' and 'trustee' models aims to bring out as well, namely whether we think legislators are independent from their constituents or not and in what way. But the 'trustee' model, as presented here, falls somewhere in the middle of the mandate/independence spectrum.
30. Recent years have witnessed a revival of theoretical interest in questions of representation. See S. Besson, 'The Paradox of Democratic Representation: On whether and how disagreement should be represented' in L. Wintgens (ed.), The Theory and Practice of Legislation: Essays in Legisprudence (Aldershot: Ashgate, 2004).
31. Christopher Eisgruber draws attention to this distance in 'A Comment on Jeremy Waldron's Law and Disagreement', 6 NYU Journal of Legislation and Public Policy (2002/2003) 35 at 40: 'But "the people" is not the same thing as "the legislature". National legislatures are tiny, elite bodies; there are more than 260 million Americans, but only 535 members of Congress'. But mainly Eisgruber relies for his defence of judicial review on a different kind of distance, this time between the People as an idealized self-governing collective and citizens as voters.
32. See also C. Eisgruber, Constitutional Self-Government, above n 5 at 49-52,
33. and more explicitly C. Eisgruber 'Constitutional Self-Government and Judicial Review: A Reply to Five Critics', 27 University of San Francisco Law Review (2002) 115 at 135-40. The institutional role of the voter, he argues, is such that citizens tend to vote for their representatives with a diminished sense of responsibility for questions of fundamental rights. From this he draws the conclusion that legislatures are less suitable for deliberation on these questions. This task should therefore be assigned to courts, which are not dependent on voters. Although I have greatly benefited from Eisgruber's analysis of the institutional role of the voter, I don't share his central theoretical aim. I believe on the one hand that it is a contingent matter whether courts ought to be entrusted a robust supervisory role on human rights issues and on the other that there is an important connection between human rights protection and legislatures.
34. PRG 153.
35. C. Schmitt, Verfassungslehre 1§7 (Munich: Dunker & Humblot, 1928) 235, quoted in PRG 151.
36. Of course I am not saying that Waldron is committed to anything like this model or that his theory entails it.
37. A fascinating instance of the clash between the two models is to be found in the Anti-Federalists/Federalists debate during the ratification process for the American Constitution. Manin provides an intriguing account of this debate in PRG 108-31.
38. Here Pitkin is in agreement: 'Nor does it help to ask whether the representative ought to act in his constituents' interests as he sees it or as they see it. Both formulations distort; he must act in their interest, period. Their view of their interest may or may not be definitive, depending on the issue and the situation; but if he follows it, it should be because the action really accords with their interest, not merely because they merely think it does'. The Concept of Representation, above n 25 at 165.
39. Pitkin mentions the Imperial German Bundesrat, the modern American electoral college, the United Nations Assembly and some early American state constitutions as examples, where the practice of binding instructions by the electorate has been instituted, H. Pitkin, The Concept of Representation, above n 25 at 149.
40. Even then, they can only vote for his opponent. They cannot cast a negative vote.
41. Both citations from J. Waldron 'Legislation' in M.P. Golding and W.A. Edmundson (eds), The Blackwell Guide to the Philosophy of Law and Legal Theory (Oxford: Blackwell Publishing, 2005) at 242.
42. When this happens, there arises, according to Pitkin, a need for an explanation or justification on the part of the representative. But this doesn't mean that '[a]cting contrary to [the constituents' wishes] is . . . necessarily wrong, . . . necessarily bad representation or a violation of a representative's duty'. See H. Pitkin, The Concept of Representation, above n 25 at 164.
43. The Federalist no. 51 (J. Madison), above n 3 at 264.
44. The importance of this comparative exercise has been pointed out by, among others, Neil Komesar in Imperfect Alternatives: Choosing Institutions in Law, Economics, and Public Policy (Chicago & London: The University of Chicago Press, 1994), chs 7 and 8
45. 'Taking Institutions Seriously: Introduction to a Strategy for Constitutional Analysis', 51 Uni of Chicago L Rev (1984) 366
46. and, more recently, by Wojciech Sadurski in 'Judicial Review and the Protection of Constitutional Rights' (2002) 22 OJLS 275-99.
47. Be it noted that the comparative institutional analysis sketched in the text must be sensitive to local peculiarities, as political scientists and constitutional engineers are well aware, when they are not overwhelmed by missionary zeal. This zeal and its consequences are criticized in B. Ackerman 'The New Separation of Powers', 113 Harvard L Rev (2000) 633.
48. Ronald Dworkin has set this threshold as follows: 'The emphasis is now on the opportunity for some influence - enough to make political effort something other than pointless - rather than on the opportunity to have the same influence as anyone else has. We design a dependent conception of democracy so that it permits anyone who wishes it enough leverage or engagement to make it possible for him to treat politics as an extension of his moral life' (R. Dworkin, Sovereign Virtue: The Theory and Practice of Equality (Cambridge, Mass.: Harvard University Press, 2000) at 203). Obviously, this criterion applies not only to the question of how much power we ought to grant democratic legislatures but also to the question of how we ought to structure them.
49. That is not to say that this position has not had its advocates in recent years. Here is a good example: 'Either the representative must vote as his constituents would vote if consulted or he must vote in the opposite sense. In the latter case he is not a representative at all, but merely an oligarch; for it is surely ridiculous to say that a man represents Bethnal Green if he is in the habit of saying "Aye" when the people of Bethnal Green would say "No"', H. Belloc and G.K. Chesterton, The Party System (London: S. Swift, 1911) at 17, quoted in H. Pitkin, The Concept of Representation, above n 25 at 150.
50. cf. Dworkin, above n 39 at 191: 'How could our political structures and practices be revised, short of destroying representative government altogether, so as to give every citizen of voting age the same power over national affairs as a junior congressman, let alone as much as the president?'
51. LD 114.
52. Interestingly, Waldron agrees that the reasons an official ought to consider overlap to some extent with but are not the same as the reasons that an ordinary citizen ought to consider. See J. Waldron, 'Authority for Officials' in L. Meyer, S. Paulson and T. Pogge (eds), Rights, Culture and the Law: Themes from the Legal and Political Philosophy of Joseph Raz (Oxford: OUP, 2003) at 45-67.
53. J.M. Robson (ed.), The Collected Works of John Stuart Mill (Toronto: Toronto University Press, 1963-91), vol. x, 314.
54. The phrase is quoted in J. Skorupski, Ethical Explorations (Oxford: OUP, 1999) 204. I am indebted to Skorupski's analysis for alerting me to some broader philosophical implications of the views I have been discussing.