The core of the case against judicial review

被引:654
作者
Waldron, Jeremy [1 ]
机构
[1] Columbia Univ, Sch Law, New York, NY 10027 USA
[2] NYU, New York, NY USA
关键词
D O I
10.2307/20455656
中图分类号
D9 [法律]; DF [法律];
学科分类号
0301 ;
摘要
This Essay states the general case against judicial review of legislation clearly and in a way that is uncluttered by discussions of particular decisions or the history of its emergence in particular systems of constitutional law. The Essay criticizes judicial review on two main grounds. First, it argues that there is no reason to suppose that rights are better protected by this practice than they would be by democratic legislatures. Second, it argues that, quite apart from the outcomes it generates, judicial review is democratically illegitimate. The second argument is familiar; the first argument less so. However, the case against judicial review is not absolute or unconditional. In this Essay, it is premised on a number of conditions, including that the society in question has good working democratic institutions and that most of its citizens take rights seriously (even if they may disagree about what rights they have). The Essay ends by considering what follows from the failure of these conditions.
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页码:1346 / +
页数:60
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