Proceduralism, judicial review and the refusal of royal assent

Oxford Journal of Legal Studies

Volumn 33, Issue 2, 2013, Pages 379-400

  Allard Tremblay, Yann ^a  

^a UNIVERSITY OF ST ANDREWS   (United Kingdom)

Author keywords

Epistemic democracy; Judicial review; Legitimacy; Proceduralism

Indexed keywords

EID: 84878791139     PISSN: 01436503     EISSN: 14643820     Source Type: Journal    
DOI: 10.1093/ojls/gqt003     Document Type: Article

References (85)

1. A Harel and A Shinar, 'Between Judicial and Legislative Supremacy: A Cautious Defense of Constrained Judicial Review' (2012) 10 Int J Constitutional Law 950.
2. for an overview of these three theories. I will concentrate on weak judicial review, but my arguments could also support other forms of constrained judicial review.
3. J Waldron, 'The Core of the Case Against Judicial Review' (2006) 115 Yale LJ 1346, 1406.
4. D Markovits, 'Democratic Disobedience' (2005) 114 Yale LJ 1897, 1899.
5. GF Gaus, Justificatory Liberalism; An Essay on Epistemology and Political Theory (OUP 1996) 204.
6. T Christiano, The Constitution of Equality (OUP 2008) 264.
7. For the type of argument I have in mind: D Estlund, Democratic Authority: A Philosophical Framework (Princeton University Press 2008).
8. F Peter, Democratic Legitimacy (Routledge 2009).
9. J Knight and J Johnson, The Priority of Democracy: Political Consequences of Pragmatism (Princeton University Press 2011).
10. C Brettschneider, Democratic Rights: The Substance of Self-Government (Princeton University Press 2007).
11. J Laws, 'Law and Democracy' (1995) PL 72.
12. T Allan, Constitutional Justice: A Liberal Theory of the Rule of Law (OUP 2001).
13. Brettschneider (n 7) 137.
14. It is mainly with respect to these procedural failures that Ely defends judicial review. J Ely, Democracy and Distrust: Theory of Judicial Review (Harvard University Press 1980).
15. Markovits (n 3) 1921.
16. IM Young, 'Activist Challenges to Deliberative Democracy' (2001) 29 Political Theory 670, 685-86.
17. Brettschneider (n 7) 145.
18. AS Kirshner, 'Proceduralism and Popular Threats to Democracy' (2010) 18 J Pol Phil 405, 410.
19. 'Pragmatists assess institution and politics in terms of their anticipated consequences, and they claim that those consequences are more likely to be normatively attractive to the extent that they reflect a diversity of perspectives. But they also insist that even consequences that emerge in circumstances of diversity must be further constrained by initial conditions of freedom and equality in both procedural and substantive terms. . . . They are insistent to the extent that pragmatists propose freedom and equality as necessary to the normative justification of democratic politics. But since pragmatists seek to dispense with foundationalist commitments, it is, on their interpretation, the commitment to democratic politics that animates their commitment to freedom and equality, rather than the reverse.' Knight and Johnson (n 6) 44-45.
20. Brettschneider (n 7).
21. H Kelsen, 'Foundations of Democracy' (1955) 66 Ethics 1, 4.
22. Peter defends a similar view (n 6) 133-34.
23. For instance, if a polity was to forbid same-sex marriage based on natural law arguments, such as those we find in Finnis, I would dare to claim that such a law is wrong. It is nonetheless possible that the polity arrived at such a decision rationally based on Finnis's arguments and that there was no procedural failure. This law would therefore be legitimate, though incorrect.
24. J Finnis, 'Law, Morality, and ''Sexual Orientation''' (1995) 9 Notre Dame JL 38.
25. Knight and Johnson (n 6) 44-45.
26. This example is not meant to refer to statutory rape.
27. A similar argument can be found in Capustin: 'even in the circumstances of politics, we can reasonably maintain that there are moral limits to the law's authority, and that these limits can sometimes be known. In other words, reason may require us to accept as authoritative the results of fair democratic procedures unless they are known to be unjust.'
28. M Capustin, 'The Authority of Law in the Circumstances of Politics' (2007) 20 Can J L Juris 297, 299.
29. For example Estlund's list of primary bads (n 6) 163.
30. Another way to formulate this is to say that views that support rape and slavery, for instance, are not reasonable.
31. P Lenta, 'Democracy, Rights, Disagreements and Judicial Review' (2004) 20 S Afr J Human Rights 1, 7.
32. I thank an anonymous referee for this objection.
33. Brettschneider (n 7) 9.
34. In my first point, I discuss judicial review in the case of a 'breakdown' of a well-functioning democracy. My other points apply to procedures that are well-functioning and that meet similar requirements as those offered by Waldron, such as a general respect for law.
35. Waldron, 'The Core of the Case Against' (n 2) 1360.
36. I do not discuss judicial review with regard to clear procedural illegitimacy: if the government enacts a law that has not been voted by the legislature for instance. In such cases, what we face is a mistake as to the appropriate procedure to follow, not a disagreement on what the procedure ought to be.
37. Estlund (n 6) 111.
38. A procedural right would be the right to vote. A non-procedural right would be a constitutional right to freedom of speech for instance. The distinction between procedure and substance is not rigid as disagreement about procedure can crumble into substantial disagreement.
39. Ely (n 11).
40. R Bellamy, Political Constitutionalism: A Republican Defence of the Constitutionality of Democracy (CUP 2007) 117.
41. Gaus (n 4) 285.
42. J Waldron, 'Refining the Question about Judges' Moral Capacity' (2009) 7 I_CON 1, and the related articles in the symposium.
43. Gaus (n 4) 185-87.
44. Alon Harel pointed out this imprecision.
45. Brettschneider's discussion of the benevolent dictatorship (n 7) 157.
46. Laws (n 8).
47. Y Eylon and A Harel, 'The Right to Judicial Review' (2006) 92 Va L Rev 991.
48. A Harel and T Kahana, 'The Easy Core Case for Judicial Review' (2010) 2 J Legal Analysis 227.
49. Harel and Shinar (n 1).
50. Kirshner (n 17) 417.
51. 'To have a moral justification for attempting to achieve a certain outcome X does not entail that one must always be doing something to achieve X. Parents have a moral justification to try to get their children to be decent human beings. But there are many times when it is best to stand back and hope for the best. A captive has a right that the police do what they can to extract him safely. But there will be circumstances where the police ought to do nothing lest the captor kill the captive. The captive does not thereby lose the right against the police to be free. In the circumstances, there is at least always moral justification for thinking about how best to achieve the outcome and then pursuing a course of action if it is a plausible one.'
52. T Christiano, 'An Instrumental Argument for a Human Right to Democracy' (2011) 39 P&PA 142, 169.
53. Kirshner (n 17) 422.
54. Christiano argues that such a reason is the protection of human rights (n 45) 161; see also Allan (n 9) 95.
55. cf Allan (n 9) for whom disobedience and strong judicial review can be seen as serving fidelity to law.
56. This claim is highly compatible with theories of constrained judicial review like popular constitutionalism and departmentalism. Harel and Shinar (n 1).
57. GC Webber, The Negotiable Constitution: On the Limitation of Rights (CUP 2009) 210, citing JB Thayer, 'The Origin and Scope of the American Doctrine of Constitutional Law' (1893) 7 Harv L Rev 129, 144.
58. MJ Perry, The Political Morality of Liberal Democracy (CUP 2010) 164.
59. Allan (n 9) 206.
60. Perry claims that this can and has been the case, ibid 171. In my view, in a well-functioning democracy, the reasonableness of the claim is precisely what we disagree about and it is presumptuous-in practice, though, not in principle-to suppose the unreasonableness of the other views.
61. As exemplified by Waldron, 'The Core of the Case Against' (n 2) 1406.
62. cf Allan (n 9) 220.
63. I thank an anonymous referee for this objection.
64. Ministry of Justice, Responding to Human Rights Judgments: Report to the Joint Committee on Human Rights on the Government's Response to Human Rights Judgments 2010-11 (Cm 8162, 2011) 29.
65. Allan (n 9) 213.
66. CF Zurn, 'Deliberative Democracy and Constitutional Review' (2002) 21 L and Phil 467, 468.
67. JL Hiebert, 'New Constitutional Ideas: Can New Parliamentary Models Resist Judicial Dominance when Interpreting Rights?' (2004) 82 Texas L Rev 1963, 1977.
68. A notwithstanding clause does not imply that the legislature will be able to authorize clear violations of rights. As Allan argues: courts have to interpret the statutes following the idea 'that Parliament intends the rule of law' and this should prevent '[e]ven the most egregious violation of fundamental rights, if sanctioned by a ''literal'' construction' (n 9) 207.
69. This is maybe where the rule of the clear mistake would come in handy. But then my point is still valid: the set of cases where it applies is almost empty.
70. Gaus (n 4) 282.
71. To prevent a Dworkinian objection here, I only have to claim that rather than objecting with an argument from scepticism to the role of judges in interpreting the law, I am in fact relying on an epistemic argument according to which the legislature is in a better position to perform judgments involving moral principles than the courts. Hence, Hercules would not be in the courts but in Parliament.
72. R Dworkin, Law's Empire (Fontana Press 1986) 372-73.
73. A Tomkins, 'The Role of the Courts in the Political Constitution' (2010) 60 U Toronto LJ 1, 10.
74. As Tomkins explains: 'Judicially enforceable substantive rights may be deemed compatible with political constitutionalism when they are narrowly defined and absolute. An absolute ban on torture, for example, is a rule that can and ought to be a rule of law enforceable by the courts. It is those qualified political claims that are elevated to the status of substantive rights that are problematic.'
75. Gaus (n 4) 280; see also Allan (n 9) 189.
76. S Gardbaum, 'The Horizontal Effect of Constitutional Rights' (2003) 102 Michigan L Rev 387, 405.
77. Hiebert (n 60) 1964.
78. Waldron, 'The Core of the Case Against' (n 2) 1370
79. Eylon and Harel (n 42)
80. Harel and Kahana (n 42)
81. Harel and Shinar (n 1)
82. cf Allan (n 9) 9.
83. Hiebert (n 60) 1985.
84. PP Craig, 'Political Constitutionalism and Judicial Review' (2009) Oxford Legal Studies Research Paper 58/2009, 10 < http://ssrn.com/abstract=1503505> accessed 13 August 2012.
85. Perry (n 51) 162.