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Participation and Judicial Review: A Reply to Jeremy Waldron

Abstract

This article challenges Jeremy Waldron'sarguments in favour of participatorymajoritarianism, and against constitutionaljudicial review. First, I consider andcritique Waldron's arguments againstinstrumentalist justifications of politicalauthority. My central claim is that althoughthe right to democratic participation isintrinsically valuable, it does not displacethe central importance of the `instrumentalcondition of good government': politicaldecision-making mechanisms should be chosen(primarily) on the basis of their conducivenessto good results.I then turn to an examination of Waldron'sclaim that individuals are entitled toparticipate in decisions which affect theirlives. Furthermore, I respond to his claimthat justifications of constitutional judicialreview rely on an objectionable distrust ofdemocratic politics, and is inconsistent with aview of the person as a morally responsible,autonomous agent. Finally, I seek to show thatjudicial review can itself become a valuablechannel of political participation, especiallyfor those who are marginalized and disempoweredin the normal political process.

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Kavanagh, A. Participation and Judicial Review: A Reply to Jeremy Waldron. Law and Philosophy 22, 451–486 (2003). https://doi.org/10.1023/A:1025450827929

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Keywords

  • Social Issue
  • Political Participation
  • Political Process
  • Autonomous Agent
  • Central Importance