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294 Chapter 13
The debate regarding the democratic legitimacy of judicial review is
perhaps best understood by referring to the authors who reflect the extreme
positions of the academic spectrum: Ronald Dworkin and Jeremy Waldron.
Dworkin relies primarily on the third argument, that is, an expanded notion
of democracy, but also puts forward arguments regarding the value of
judicial review which could be used to support pragmatic arguments in
favour of judicial review. Waldron, on the other hand, asserts the primacy
of democracy and attempts to refute Dworkin’s democratic argument for
judicial review. It should be noted from the outset, that the Dworkin-Waldron
debate is located firmly within the jurisprudence of the United States
constitutional democracy, which is, given the lack of direct constitutional
authority for judicial review and the extent to which the courts engage in
judicial review, not the norm internationally. Indeed, in the United Kingdom
and in Canada (and to a much greater extent in South Africa), courts are
mandated to undertake judicial review – thus undermining, to some extent,
the need and substance of both Dworkin’s and Waldron’s arguments in those
jurisdictions. Nevertheless, the debate is informative for discussions on the
democratic legitimacy of judicial review.
Waldron argues that there is no necessary connection between the
adoption of a ‘rights-based position’ (a term he adopts from Dworkin) to
indicate that a concern for fundamental rights lies at the foundation of a
particular position) 9 and the protection of those rights in a bill of rights with
enforcement through judicial review. 10 His central thesis is that judicial
review is a negation of the individual right to democratic self-government,
which is given effect through electoral representation. 11 Constitutionalisation
of rights, he argues, is undermined by its own logic. This is
because the entrenchment of a right in a bill of rights and the ‘attitude of
mistrust’ that this comprises (since it precludes citizen involvement in the
development of rights jurisprudence) is undermined by the underlying
premise of rights themselves – that citizens are autonomous and
responsible agents. 12
Waldron emphasises the importance of citizens’ right to participation
as stemming from ‘our democratic principles, and from our conviction that
self-government and participation in politics by ordinary men and
women, on equal terms, is itself a matter of fundamental right’. 13 The
entrenchment of constitutional rights amounts to an abrogation of this
right to the courts, a move which Waldron finds unacceptable:
9 R Dworkin Taking rights seriously (1977) 90 – 100, 171 - 177.
10 J Waldron ‘A right-based critique of constitutional rights’ (1993) 13 Oxford Journal of
Legal Studies 18 20 - 28.
11 This argument was first presented in Waldron (n 10 above), and later developed in
J Waldron Law and disagreement (1999).
12
Waldron (n 11 above) 249 - 252.
13 Waldron (n 10 above) 36.