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Towards a framework for understanding constitutional deference 295
[T]his arrogation of judicial authority, this disabling of representative
institutions, and above all this quite striking political inequality, should be
frowned upon by any right-based theory that stresses the importance of
democratic participation on matters of principle by ordinary men and
women. 14
Instead, Waldron argues that it is only through majority decision making
that disagreement can properly be accommodated. Disagreement, for
Waldron, is ‘one of the basic circumstances of political life’ 15 and
majoritarian processes are the only way in which to respect these
differences. It is precisely because majoritarian processes are based on a
rights-based resolution of these differences that it gains its legitimacy and its
authority to make law. Majoritarian participation in dispute resolution
calls upon the very capacities that rights as such connote, and it evinces a form
of respect in the resolution of political disagreement which is continuous
with the respect that rights as such evoke. 16
On the other end of the spectrum, in Freedom’s law, 17 Dworkin argues for the
democratic legitimacy of judicial review using both a negative and a positive
argument. He begins by questioning the majoritarian assumption – that in
order for a politically-important decision to count as ‘democratic’ it must be
one that the majority would agree to, given enough time and information to
make an informed decision; if a decision is not one which the majority would
agree to, then it is necessarily undemocratic 18 – that judicial review is
necessarily undemocratic: ‘Democracy does not insist on judges having the
last word, but it does not insist that they must not have it.’ 19
Dworkin rejects this majoritarian view of democracy in favour of what
he calls the ‘constitutional conception of democracy’, where the ‘defining
aim of democracy’ is taken to be
that collective decisions be made by political institutions whose structure,
composition, and practices treat all members of the community, as individuals,
with equal concern and respect. 20
Thus, Dworkin offers an account of substantive democracy, where substance
takes precedence over form. For Dworkin, it is far more important that rights
are enforced correctly, than that rights are interpreted by a majoritarian
14 Waldron (n 10 above) 42.
15 Waldron (n 11 above) 246.
16
Waldron (n 11 above) 252.
17 R Dworkin Freedom’s law: The moral reading of the American Constitution (1996).
18 Dworkin (n 17 above) 16.
19
Dworkin (n 17 above) 7.
20 Dworkin (n 17 above) 17. See also S Fredman ‘Judging democracy: The role of the
judiciary under the Human Rights Act 1998’ (2000) 53 Current Legal Problems 99 101 -
108, who argues that the HRA presents a significant opportunity to enhance
participatory democracy in the arena of human rights.