4 - The Critics' Case

Summary

The Road Ahead

We have now examined the Standard Case for judicial review. As we have seen, a number of different arguments figure in this case. For example, judicial review is often applauded for the protections it is said to afford minorities or individuals whose moral rights are threatened by government action or inaction, and for the help it provides in securing certain fundamental conditions of a thriving democracy. Sometimes these conditions are thought to derive from the constitutional conception of democracy. At other times they are said to follow from a less ambitious procedural conception. But judicial review is not without its detractors. Many public figures and scholars – whom we lumped together and dubbed “the Critics” – are equally adamant in condemning judicial review on a wide range of philosophical and practical grounds. Because the principal aim of this book is a plausible defence of Charters and the practices of judicial review to which they give rise, it is incumbent on me to explore and answer the Critics' most important objections. This I shall begin to do in the present chapter. In defending a practice, the best strategy is usually to address the arguments of its strongest critic, and it is for this reason that we will be focusing, though not exclusively, on the work of Jeremy Waldron, who, in two important books, The Dignity of Legislation and Law and Disagreement, argues strenuously against Charters and their enforcement by judges.