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296 Chapter 13
government. 21 The danger to democracy is in making a wrong decision – not
in having the courts make it. Of course, the problem with the argument is the
idea that there is one correct answer, or at least, that we can know what that
answer is. Reasonable people differ as to how to interpret rights, so it can hardly
be an argument in favour of judicial review that the judiciary is better able to
find that correct answer.
Dworkin’s positive argument for judicial review focuses on the
institutional strengths of the judiciary and the weaknesses of
majoritarianism and the legislative process, arguing that despite reasonable
disagreements over rights, the institutional structure of judicial review
compared with the features of the legislature makes it more likely that judicial
review will respect and protect rights and democracy better than the
legislature would. 22
For Dworkin, majoritarian politics ‘encourages compromises that
may subordinate important issues of principle’. 23 On the other hand,
judicial review of constitutional rights and the widespread public debate
which they give rise to, may even, for Dworkin, ‘provide a superior kind of
republican deliberation’ to that of majoritarian processes. 24 Dworkin
therefore provides a strong counter-argument to the ‘democratic’ argument
for majoritarian decision making by developing a more sophisticated
understanding of democracy and deliberation.
Hence, in the context of a discussion of judicial activism and judicial
restraint, or a ‘policy of deference’, 25 Dworkin tackles what he calls the
‘argument from democracy’ as a justification for a policy of deference,
namely, that it is more appropriate for democratically elected legislators to
decide issues of moral and political importance. 26 Dworkin challenges this
view, pointing out that state legislators (in the United States) are not in fact
‘responsible to the people in the way that democratic theory assumes’. 27 For
Dworkin, it is simply not a self-evident argument from the United States
constitutional text or practice that courts lack the democratic legitimacy to
make policy decisions. After all, the common law itself is derived from the
courts.
Dworkin then goes on to deliver a far more fundamental critique,
examining the argument on its own terms – that a decision by a democratic
institution would be more likely to be sounder and fairer. 28 Dworkin
21 Dworkin (n 17 above) 17; Lenta (n 8 above) 10 - 11.
22 Lenta (n 8 above) 17 - 18.
23
Dworkin (n 17 above) 30.
24 Dworkin (n 17 above) 31.
25 The policy of deference must be distinguished from the principle of deference, which
applies throughout judicial review. A policy of deference is a particular practice of
judicial restraint adopted by a particular court.
26 Dworkin (n 9 above) 140.
27
Dworkin (n 9 above) 141.
28 As above.