Between common law constitutionalism and procedural democracy

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Abstract

This article will argue that there is a coherent and attractive middle way between common law constitutionalism and the procedural conception of democracy, the two dominant positions on the legitimacy of strong constitutional judicial review. I will explore an intriguing alternative that decouples the legitimizing principles and institutional claims of the two dominant positions and argues that (i) democratic decision-making cannot be legitimate if it violates substantive principles of morality; and (ii) the strong form of constitutional review is problematic. This article will present four theses. First, I will argue that political liberalism, properly defined, can allow us to avoid both the tyranny of the majority and the rule of Platonic guardians. Secondly, even if we can deflect both dangers, there is still real tension between the liberal principle of legitimacy and the procedural conception of democracy. Thirdly, if we accept the liberal principle of legitimacy, we have to grant a pivotal role to the epistemic credentials of our institutions. Finally, I will contend that courts should not be authorized to invalidate statutes on the ground that they violate fundamental moral principles.
Original languageEnglish
Pages (from-to)317-338
Number of pages21
JournalOxford Journal of Legal Studies
Volume33
Issue number2
Early online date13 Feb 2013
DOIs
Publication statusPublished - 2013
EventW G Hart Legal Workshop on ‘Sovereignty in Question - London, United Kingdom
Duration: 28 Jun 201130 Jun 2011

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Keywords

  • constitutional theory
  • judicial review
  • procedural democracy
  • common law constitutionalism
  • political liberalism
  • public reason

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