Philosophy Compass 2/2 (2007): 258266, 10.1111/j.1747-9991.2006.00056.

Judicial Review
W. J. Waluchow*
McMaster University

Abstract
Courts are sometimes called upon to review a law or some other official act of
government to determine its constitutionality, its reasonableness, rationality, or its
compatibility with fundamental principles of justice. In some jurisdictions, this
power of judicial review includes the ability to strike down or nullify a law duly
passed by a legislature body.This article examines this practice and various criticisms
of it, including the charge that it is fundamentally undemocratic.The focus is on
the powerful critique mounted by Jeremy Waldron, the foremost philosophical
opponent of judicial review.

Judicial Review
Judicial review is a practice whereby courts are sometimes called upon to
review a law or some other official act of government (e.g. the decision of
an administrative agency such as a state or provincial labour relations board)
to determine its constitutionality, or perhaps its reasonableness, rationality,
or its compatibility with fundamental principles of justice.The practice
varies considerably. In many jurisdictions, such as the United States, France
and Canada, judicial review includes the power to strike down or nullify
a law duly passed by a legislature body while in others jurisdictions, powers
of review are more restricted.1 For example, United Kingdom courts do
not have the power to invalidate legislation, but they do have the power,
under section 4 of the Human Rights Act 1998, to declare legislation
incompatible with The European Convention on Human Rights. Upon such a
declaration, Parliament sometimes undertakes to amend the offending
legislation. But should it chose not to do so, the courts have no further legal
recourse. UK courts also have the power to interpret legislation in a way
which would remove a potential incompatibility with the Convention.Yet
another respect in which practices of judicial review vary is in the type of
body in which the power is vested. Sometimes, the power is possessed by
ordinary courts, whereas in other countries, e.g. in Austria and Russia, the
power is restricted to a special Constitutional Courts whose role is to decide
fundamental questions of constitutional law.
Although issues surrounding the nature and justification of judicial have
long been of interest to constitutional lawyers, historically the topic has been
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 Judicial Review . 259

of little interest to political philosophers and philosophers of law. But

this has all changed, owing in part to the provocative work of Jeremy
Waldron.Waldron is no fan of judicial review (see Waldron, Law and
Disagreement; Tushnet; Kramer). Nor is he enamoured of the grandiose
constitutional charters and bills of rights which serve as the most contentious
ground in terms of which that power is often exercised by courts.2 According
to Waldron and his fellow critics, judicial review under a charter is fraught
with both theoretical and practical difficulty. It threatens democracy and is
both fundamentally unfair and politically dangerous.According to some
critics, it also relies on outmoded views about the nature of moral rights
that there are objective, universal moral rights to such things as equality,
fundamental justice and due process to which charters make reference,
and which judges can sensibly and justifiably be asked to apply against
recalcitrant exercises of government power.While it is true that judicial
review need not be based on any such ground it could, for example, be
restricted to questions such as whether an administrative agency has followed
proper procedure, or whether a federal government has exceeded its
constitutional authority by legislating on a matter which falls more naturally
under the powers of a provincial or state government and that it need not
include the ability actually to strike down legislation, the main focus has
been on forms of judicial review which exemplify these two features. It is
therefore upon such forms that we shall focus and to which I shall henceforth
be referring when I speak of judicial review.

Democracy and Judicial Review

So what can be said in favour of judicial review?What could possibly justify
a practice according to which judges, who are for the most part appointed,
not elected, are authorised to strike down or otherwise interfere with actions
taken by duly elected legislators? Is this not inherently undemocratic?
Somewhat paradoxically, it is precisely because judges are unelected that
investing them with the power to review legislation is sometimes said to be
necessary in a healthy democracy. Democracy is not, most defenders of
judicial review insist, to be identified with simple majority rule. Rather,
it is a system of government under which everyone is treated as free and
equal.Yet treating everyone as free and equal includes treating each
individual as a person entitled to an equal say in the creation of law and the
direction of public policy.To be sure, this does usually require respecting
majority will.And this is normally done through the use of majority voting
procedures among elected, democratically accountable representatives whose
primary responsibility is to create law and direct public policy in accordance
with majority sentiment. But sometimes democracy requires the exact
opposite. Majorities, perhaps unwittingly or in times of national stress or
panic, periodically move to deny individuals and groups the equal say
and respect that democracy demands. Indeed, they sometimes pursue, or
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command their elected representatives to pursue, courses of action which

seriously threaten the fundamental interests and rights of vulnerable
individuals and minorities.Among the most important of these rights and
interests are those typically included within charters of rights.And it is these,
paradigmatically, that courts are entrusted with protecting when they
undertake judicial review. Legislatures, elected bodies designed to be
maximally responsive to majority wishes, are not particularly well positioned
to make the hard choices sometimes required to protect individuals and
minorities against the demands of a majority. Judicial review is thus heralded
as a useful or essential vehicle for protecting them against what Mill famously
termed the tyranny of the majority (8).3 It is often viewed as embodying
the rational pre-commitment of the community to protect certain
fundamental rights and interests essential to enlightened democratic rule and
the free and equal exercise of individual autonomy and political power
against majority excesses (Dworkin, Taking Rights Seriously; Laws Empire;
A Matter of Principle; Freedoms Law; A Bill of Rights for Britain; Ely; Freeman;
Rawls, Theory of Justice; Political Liberalism).
According to Waldron and his fellow critics, this is all utter nonsense.
Judicial review is far from being a necessary means of respecting or enhancing
democracy in truth, it represents the complete abandonment of democracy.4
Roughly, the objection runs as follows. Judicial review of the form under
consideration is always based on the question whether a duly adopted act
of legislation is for some reason inconsistent with the fundamental moral
rights and interests expressed in a charter of rights. If an inconsistency is
determined, the act is struck down and the legislature is barred from
following a path it believes to be justified. Judicial review therefore limits
the legitimate choices open to legislative bodies in significant ways and,
as we have seen, it does so by imposing limits which are principally enforced
by unelected, politically unaccountable judges. Such an arrangement, the
critics contend, only serves to thwart the legitimate aspirations of the people
as expressed through their elected representatives and is therefore inherently
undemocratic. Defenders of judicial review sometimes reply to this line of
argument by claiming that the people themselves must, at some point in
time, have chosen freely to impose these judicially enforced limits on their
democratic power, and that this is sufficient to secure democratic legitimacy.
But this will hardly do, the critics counter, because quite often the limits in
question i.e. those articulated in a charter of rights were those chosen
many years ago, indeed in some instances many generations ago, when the
relevant charter was first adopted.And this, in turn, raises a further, very
difficult question:Why should the-people-now be restricted in their current
legislative choices by what the-people-then might have decided were
appropriate limits to entrench in a constitutional charter of rights and leave
to the judges to enforce?This is especially problematic, given the serious
bias against change which amending formulas typically build right into
constitutions.5 All this seems flatly inconsistent with the notion of ongoing
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self-government which lies as the very heart of democratic ideals. Instead

of being slaves to a king or despot, societies which opt for judicial review
under an entrenched constitutional charter have made themselves slaves to
previous generations, and to the unelected judges called upon to decide
fundamental questions of political morality.According to the critics, a
judicially enforced charter represents an unflattering, indeed insulting,
admission that the-people-now, are better off relying on the-people-then,
in concert with a small band of judicial elites, to make their decisions of
political morality for them.This is an admission, critics contend, that really
should be avoided in a society committed to democracy.

The Moral Insight of Judges

A second, related objection to judicial review is that its proposed rationale
rests on the false belief that judges are, for some reason or other, better able
than legislators and citizens to deal responsibly and effectively with the deeply
controversial, complex issues of morality and public policy which typically
serve as the focus in cases involving judicial review. Presumably, when
legislators enact legislation, they do so in the sincere belief that they have
not thereby violated their constitutional commitments to minorities and
individuals. But if courts are called on to stand in judgment of that sincerely
held belief, then this must be due to the conviction that courts have a better
grasp of the relevant moral issues and that their judgments are more likely
to be correct. But there is absolutely no reason to accept this flattering view
of judges. Judges are no better than any one else at determining the contours
of the moral rights and interests a charter supposedly protects.Though well
schooled in the law, judges are in no sense of the word, moral authorities.
Nor are they experts in the various complex fields of social policy with
which legislatures typically deal.They do not, in short, exhibit degrees of
moral and intellectual acumen superior to the levels enjoyed by the
government authorities whose actions they are called on to sit in moral
judgment. So why should they be called upon to second-guess a legislatures
attempt to answer the deep and difficult questions of political morality which
charter cases typically involve?

Ulysses and the Mast

In explaining the nature and appeal of judicial review under charters of
rights, defenders often cite an analogy with Ulysses decision to be bound
to the mast of his ship (Elster). Much as Ulysses knows that he will become
mad when he hears the Sirens, a community can know that at some point
in its political deliberations it will become overwhelmed by the siren call of
self interest, prejudice, fear, hatred or simple moral blindness, and be led,
in the course of everyday politics, to violate the rights and fundamental
interests of vulnerable fellow citizens. Ulysses knows that he is rationally
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justified in arranging, in advance, a restriction on his freedom to choose and

act later.Analogously, a democratic community can know in advance that
it too is rationally justified in tying itself to the mast of charter rights and
their enforcement, on behalf of that community, by judges whose unelected
status frees them from the political pressures typically felt by elected
legislators. It isnt that judges are any smarter or more knowledgeable than
legislators and the citizens that they represent. Its that they, like Ulysses
sailors, are often better situated than legislators and the citizenry they
represent, to see to it that the fundamental rights and interests of individuals
and minorities are honoured in the breech.
According to Waldron, the Ulysses analogy provides absolutely no support
for judicial review. Its principal weakness is in falling victim to what Waldron
aptly terms the circumstances of politics.These consist in the
felt need among the members of [pluralistic societies] for a common frame-
work or decision or course of action on some matter, even in the face of
disagreement about what that framework, decision or action should be. (Law and
Disagreement 102)
This radical disagreement or dissensus is quite extensive in Waldrons view.
It extends to the question whether to adopt a charter of rights coupled with
judicial review, what rights and interests to include within a charter if the
decision is indeed taken to adopt one, and precisely how these rights and
interests are to be interpreted and applied in particular cases, most notably
by judges when they exercise the immense power accorded them under
practices of judicial review.According to Waldron, it looks as though it is
disagreement all the way down, so far as constitutional choice is concerned
(295).Yet if the people in pluralistic societies cannot agree, in advance, on
the content of the moral rights and interests enshrined in their charters, it
is impossible for them intelligibly to pre-commit to their observance and
enforcement by judges.And if they cannot pre-commit if, that is, they
cannot tie themselves and their representatives to the mast of entrenched
charter rights then the heralded benefits of judicial review under a charter
vanish into thin air.

Further Difficulties
So according to critics of judicial review, the practice poses a serious threat
to democracy and is incorrectly modelled on the story of Ulysses. It is also,
they add, politically dangerous and fundamentally unfair, as well as a threat
to the rule of law. It is politically dangerous because it is difficult to
underestimate the considerable power which judicial review places in the
hands of a small cadre of unaccountable judges sitting in appeal courts.They,
not the people or their legislative representatives, are assigned the task of
providing final answers to the deeply controversial questions about moral
rights and interests which arise under judicial review, and on the basis of
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these answers determining what shall be deemed lawful in their community.

This is far too much political power for a small group of unelected people
to wield over an entire population, no matter how learned and wise they
might be. It is fundamentally unfair because individual citizens have, in
effect, been disenfranchised by this arrangement. Each citizen of voting age
should have an equal right, in a democratic society, to contribute to the
creation of the laws by which she is governed.This she exercises directly
via the ballot box and by whatever contributions to public discourse and
debate about controversial issues she chooses to make. She also does so
indirectly via the legislative votes of her elected representatives, who are
supposed to represent her interests and opinions.All this has been replaced
by subjection to the pronouncements of judges.The duly considered views
of citizens and their representatives about the laws by which they are to be
governed, arrived at through fair processes of democratic decision-making
have, in effect, been set aside in favour of the moral opinions of a handful
of judges.The absurdity of this is only compounded by the fact that the
judges can almost never demonstrate, to the satisfaction of all concerned,
that their decisions are any better at honouring the relevant charter rights
than the democratically chosen decisions they replace. It is further
exacerbated by the undeniable fact that judges on appeal courts often disagree
vehemently among themselves about moral rights and must often, in the
end, rely on majority voting to settle their own disagreements. It is not at
all uncommon to see split votes when a court deals with a contentious issue
of moral principle like affirmative action, abortion or school prayer. Often
these split votes follow patterns which are closely correlated with the all too
discernible political leanings of judges.6 And even when the judges are
unanimous in their voting, concurring opinions, each in its own distinctive
way supportive of the courts decision, reveal deep divisions concerning the
precise meaning and import of the relevant moral rights or interests.Add
to this the fact that judges render decisions which all too often appear not
only to conflict with views widely shared in the community at large, but
with their own previous decisions in earlier cases, and what might seem like
a marvellous idea in the abstract constitutionally guaranteeing moral rights
and fundamental interests against majoritarian excess is transformed into
a living nightmare.A nightmare in which democracy, fairness and the rule
of law have, in effect, been abandoned and replaced by the rule of a few
men and women, by a kind of judicial oligarchy.And no matter the high
esteem in which we tend to hold our judges, this is not a form of government
to be eagerly embraced.

Judicial Bias
This brings us to one final objection to judicial review. Many theorists, far
more critical of the judiciary than Waldron, point to the inevitable bias
which is introduced into our political and legal cultures if judges are allowed
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to decide the kinds of questions raised by judicial review. Critics note that
judges tend to originate from the social, political and financial elites within
society.You dont get to be a judge by being a radical (Mandel 460). From
this it is inferred that judges inevitably share the perspectives of these elites
on the issues of morality and public policy around which cases of judicial
review typically revolve.The consequence, it is said, is suppression of those
women, minority racial groups, the poor and so on whose rights and
interests are not adequately recognised or supported by the dominant, elite
ideologies to which judges have an affinity. Instead of the protection of
vulnerable individuals and minorities promised by defenders of judicial
review, we have political suppression disguised in a cloak of respect for
minority rights and interests. Does this too not fly in the face of any sane
conception of democracy? Michael Mandel clearly thinks so.
Once we admit the controversial nature of constitutional rights and the great
differences of interpretation that can result from differing ideological points of
view among judges, and between judges and the rest of us, the idea that judicial
review is democratic, in the usual sense of enhancing popular power, evaporates
into thin air. (456)

Meeting the Challenge

So these are the main objections to the orthodox understanding and defences
of judicial review one finds in the literature today.A number of philosophers
and legal scholars have attempted to meet these critical challenges directly
(Christiano; Raz; Estlund; Kavanag; Waluchow, Constitutions as Living
Trees; A Common Law Theory of Judicial Review). Most do so by focusing
on the claim that judicial review and democracy are inherently incompatible.
Larry Sager, for example, argues for a kind of democratic partnership between
judges and legislators in which each group contributes in its own distinctive
way. Christopher Eisgruber follows Dworkins lead in maintaining that the
presumption in favour of legislative supremacy, like the presumption in
favour of majority rule...rests upon an over-simplified conception of
democracy (48).We should, Eisgruber thinks, conceive judicial review
not as a constraint upon the democratic process, but as one institutional
mechanism for implementing a complex, non-majoritarian understanding
of democracy (48). In my forthcoming book, A Common Law Theory of
Judicial Review, I argue that the ongoing debates between defenders and
critics of judicial review have all presupposed that constitutional charters
aspire to be more or less rigid entities establishing stable, fixed points of
agreement and pre-commitment, which defenders consider to be possible
and desirable in a democracy, and critics deem impossible and illegitimate.
Drawing on reflections concerning the nature of law, constitutions and the
common law, and on what it is to be a democratic representative, I urge a
different conception of charters according to which they are much more
flexible and adaptable than often supposed. Far from establishing fixed points,
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charters set the stage for the ongoing development of a common-law of

moral rights against illegitimate exercises of government power.Adopting
this alternative understanding of judicial review enables one not only to
answer the critics most serious challenges, it also allows one to appreciate
the role that the practice can sensibly play in a constitutional democracy.
Or so I argue.Whether such defences of judicial review will succeed in
answering the profound challenges to its legitimacy initiated by Waldron
and his fellow critics is, at this stage, very much an open question.7

Short Biography
Wil Waluchow is a Professor of Philosophy at McMaster University,
Hamilton, Ontario, Canada. His research interests lie in two main areas of
the philosophy of law: general theories about the nature of law and the
philosophy of constitutional law. He has authored articles on these first topic
for, among others, The Philosophical Quarterly, The Oxford Journal of Legal
Studies, Osgoode Hall Law Journal, Law and Philosophy, Dialogue and The
Canadian Journal of Law and Jurisprudence. His book, Inclusive Legal Positivism
(Oxford 1994), argues for a theory of law which sees moral conditions
on validity as conceptually possible but not necessary in legal systems. His
forthcoming book, A Common Law Theory of Judicial Review:The Living Tree
(Cambridge 2006) argues for a common law conception of charters or bills
of rights and in favour of associated practices of judicial review. Before
coming to McMaster University, Waluchow taught at The University
ofWestern Ontario and The University of Alberta. He holds a BA and MA
from The University ofWestern Ontario and a D. Phil from Oxford, where
he was supervised by H. L.A. Hart.

Notes
* Correspondence address: Department of Philosophy, McMaster University, Hamilton, Ontario,
Canada L8S 4K1. Email: walucho@mcmaster.ca.
1 Although Canadian courts possess the power to strike down legislation, an exercise of this power

can sometimes be overridden. Section 33 of The Constitution Act, 1982 explicitly empowers
Parliament or provincial legislatures to enact legislation which it acknowledges conflicts with the
rights specified in sections 2 and 715 of the Canadian Charter of Rights or perhaps more accurately,
a courts interpretation of any of those Charter rights. Section 33 overrides are seldom used and are
valid for a five-year renewable period.
2 Henceforth I will refer only to charters, with the understanding that this label applies to any

constitutional instrument, such as the American Constitution or Bill of Rights, or the English
Human Rights Act 1998, which includes rights of political morality in terms of which judges are
called upon to exercise the power to review legislation.
3 The phrase tyranny of the majority was actually taken from Tocqueville.
4 The democratic objection to judicial review has a long pedigree, extending at least as far back

as Alexander Hamilton in Federalist Paper, #78 (see Cooke). In American jurisprudential circles,
authors frequently refer to the objection as the counter-majoritarian difficulty, a phrase attributed
to Yale Law Professor Alexander Bickel.
5 Constitutions and hence constitutional charters of rights are typically entrenched. Put simply,

this means that in most cases it is very, very difficult to change a constitution. Simple majority
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vote in a national legislature is seldom sufficient. In Canada, for example, the general rule governing
constitutional amendment is outlined in section 38(1) of the Constitution Act, 1982, known as the
7/50 formula. It requires: (a) assent from both the House of Commons and the Senate; and (b)
the approval of two-thirds of the provincial legislatures (at least seven provinces), representing at
least 50% of the population.Amendments to the Japanese Constitution require approval by
two-thirds of the members of both houses of the National Diet before they can be presented to
the people in a nation-wide referendum (Article 96).
6 One of the most notorious examples of this phenomenon was the vote in Bush vs. Gore where

the votes of conservative judges like Thomas, Rhenquist and Scalia favoured a positive outcome
for the Bush camp, whereas the votes of more liberal-minded judges such as OConnor and
Kennedy were in support of an outcome which favoured the Gore side.
7 I wish to thank Matthew Grellette for helpful comments on an earlier version of this essay.

Works Cited
Bickel,Alexander. The Least Dangerous Branch:The Supreme Court at the Bar of Politics. Indianapolis,
IN: Bobbs-Merrill, 1962.
Bush, George W. et al., Petitioners v.Albert Gore Jr. et al. (2000) U.S. Supreme Court (00949).
Christiano,Thomas. Waldron on Law and Disagreement. Law and Philosophy 19 (2000): 51343.
Cooke, Jacob E., ed. The Federalist. Middletown, CT:Wesleyan University Press, 1961.
Dworkin, Ronald. A Bill of Rights for Britain. London: Chatto and Windrus, 1990.
. Freedoms Law:The Moral Reading of the American Constitution. Cambridge, MA: Harvard
UP, 1996.
. Laws Empire. Cambridge, MA: Harvard UP, 1986.
. A Matter of Principle. Cambridge, MA: Harvard UP, 1985.
. Taking Rights Seriously. London: Duckworth, 1977.
Eisgruber, Christopher. Constitutional Self-Government. Cambridge, MA: Harvard UP, 2001.
Elster, John. Ulysses and the Sirens: Studies in Rationality and Irrationality. New York: Cambridge
UP, 1979.
Ely, John Hart. Democracy and Distrust:A Theory of Judicial Review. Cambridge: Harvard UP, 1980.
Estlund, David. Waldron on Law and Disagreement. Philosophical Studies 99 (2000): 11128.
Freeman, Samuel. Constitutional Democracy and the Legitimacy of Judicial Review. Law and
Philosophy 9 (1990): 32770.
Kavanagh, Aileen. Participation and Judicial Review:A Reply to Waldron. Law and Philosophy
22 (2003): 45186.
Kramer, Kramer. The People Themselves: Popular Constitutionalism and Judicial Review. Oxford:
Oxford UP, 2004.
Mandel, Mandel. The Charter of Rights and the Legalization of Politics in Canada. Toronto:Thompson
Educational Publishing, Inc., 1994.
Mill, John Stuart. On Liberty in On Liberty and Other Writings. Ed. Stefan Collini. Cambridge:
Cambridge UP, 1989.
Rawls, John. Political Liberalism. New York: Columbia UP, 1996.
. A Theory of Justice. Cambridge, MA: Harvard UP, 1971.
Raz, Joseph. Disagreement in Politics. American Journal of Jurisprudence 43 (1998): 2552.
Sager, Larry. Justice in Plainclothes. New Haven:Yale UP, 2004.
de Tocqueville,Alexis. Democracy in America. New York: Schocken Books, 1961.
Tushnet, Mark. Taking the Constitution Away From the Courts. Princeton, NJ: Princeton UP, 1999.
Waldron, Jeremy. The Dignity of Legislation. Cambridge: Cambridge UP, 1999.
. Law and Disagreement. Oxford: Oxford UP, 1999.
Waluchow,W. J. A Common Law Theory of Judicial Review:The Living Tree. Cambridge: Cambridge
UP, 2006.
. Constitutions as Living Trees:An Idiot Defends. Canadian Journal of Law and Jurisprudence
43 (2005): 20747.

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