Judges Power to Override Legislation

Judges Power to Override LegislationINTRODUCTIONThe issue of resolve having the power to decree legislation merchant ship be linked to Judicial go over (younger which has been a point of debate between different scholars. To understand judicial re deliberate, one essential look at the definition of democracy and the nature of it. nation as described by A Weale is a government whereby important public endings on questions of law and policy depend, directly or indirectly, upon public opinion formally expressed by citizens of the community, the vast bulk of whom acquire pertain policy-making rights.1 Democracy passel be seen as a good way of choosing government and as such the government pilenot infringe on the rights of the people. This relates to the social contract theory which was given by John Locke whereby the people have to agree to give up their freedom as long as the government agree to do what is mentioned in the contract. The social contract theory was created to protect the natural rights of the people. For a democracy to inhabit, the people must have rights and this is the major occasion Judicial Review costs to uphold these rights for the governance to be democratic. Therefore, I will be supporting the notion that the courts should be given the power to scrutinize, not override legislation if it conflicts with the rights in the Bill of Rights. I will be looking at seams for Judicial Review put forward by Dworkin as well looking at the communication channels against it given by Waldron and I shall give my close.DWORKINS THEORYFirstly, the bill of rights according to Dworkin atomic number 18 the clauses of the American constitution that protect several(prenominal)s and minorities from government2. Therefore, these clauses must be given the virtuous reading. Dworkin gives meaning to the moralistic reading in his book Freedoms law the moral reading of the American constitution3. He explains that the moral reading proposes that jud ges, lawyers and citizens should interpret and apply the cop clauses on understanding that they invoke moral principles close to policy-making civility and justice4. The moral reading brings political morality into the heart of constitutional law only if this is uncertain and controversial, therefore any system of government that call fors such principles part of its law must decide whose interpretation and understanding will be authoritative5. In the American System Judges have that authority and in his book, Dworkin disproves the critics that suggest the moral reading of the constitution gives judges the absolute power to impose their give birth moral convictions on the public6.Democracy means government by the people7 as seen in Dworkins article but he did point out that there argon two ways in which democracy can operate. The first is the majoritarian inaugurate8 and the second is the constitutional idea of democracy9. The majoritarian premise is of the view that politic al purposes and procedures should be do ground on the favor of the majority or the plurality of the citizens provided that they have adequate information and enough time on reflection10.Dworkin rejects the view of the majoritarian premise. This is because even though it seems that closely people in the United States of America have accepted the majoritarian premise, there are still rough who believe that the majority should not always be the final judge11. The reason for this is that there are situations where undivided rights need to be protected and the decisions should not be based merely on what the majority want. The premise supposes that it is unfair when the political majority does not always get their way12 which is unfair to minorities and various(prenominal)s.Dworkin looks to a different, recrudesce account of the time value of democracy13. This is the constitutional conception of democracy14. This takes on the view that collective decisions should be made by po litical institutions whose structure, composition and practises treat all members with equal concern and equal respect15. This is done out of concern for the equal status of citizens and not out of commitment to the goals of majority radiation pattern16.This is one major reason Dworkin argues in favour of the courts. He believes that an independent body such as the judiciary can make decisions which respect not only the majority but similarly individual citizens.In relation to Dworkin proving that JR improves democracy, he proposes three line of reasonings that favour the majoritarian premise and he rebuts each of these arguments which demonstrates that the majoritarian premise is undemocratic. However, only two of these arguments will be looked at. The first argument in favour of the majoritarian view is liberty. People that are in support of the majority view argue that allowing judges to strike down legislation can be perceived as undemocratic because it infringes on the right to liberty. The right to liberty includes the freedom of the people to govern themselves by electing political officials.Dworkin rebuts this argument in two forms which are the statistical collective march and the communal collective action.17 A collective action is statistical when a group of people do that action as only a effect of individual interest, that is, doing it for their own selfish gains but it leads to a result that favours all(prenominal)one in the community18. While a collective action is communal when it cannot be reduced to nigh statistical function of individual action19. This is a matter of individuals acting together consciously to bring just nearly a result.Dworkin believes that if a loss of liberty should exist past the collective action should be communal not statistical. Loss of liberty to any individual would be negligible.The communal collective action brings about how an individual voter can identify with the community. The community as a whole mu st treat an individual with respect and as an equal20. This relates to the concept of moral rank and file. Moral membership is how an individual should be treated as part of the community as a whole. There are two features of moral membership the first is structural21 which explains that the community must have a shared culture, history and language. The second is relational22 which emphasizes on individual rights. As a member of the community every individual must have political rights. If every member has these rights, then everyone should all be treated equally as a member of the community. This to a fault means that people have a part in collective decision making, as well as a stake in what happens and they also have independence from it23. Dworkin believes that without these rights then democracy cannot exist.The second argument is community. From the majoritarian view the argument would be that if the view of the majority is overridden then citizens are deprived of the value of participating in communal decision making. Dworkin rebuts this by adage that citizens can also participate in the political process through other ways. ace of such ways is the power that is given to the people by the constitution to form non-political communities such as religious, professional and social groups24. Dworkin refers to the first amendments association of bulwark that prohibits religious discrimination which enhances that power25. The second way is through influence citizens may have more influence over a judicial decision by their contribution to public discussion of the issue than they would over legislative decisions just through voting or even a referendum26.Dworkin reaches the conclusion that there is no loss in democracy if the final say is left to judges, therefore he believes that Judicial review can improve democracy.WALDRONS THEORYWaldron takes on a different view regarding Judicial Review and democracy. In his article THE CORE OF THE typesetters case AGAINST JUDICIAL REVIEW27Waldron begins by saying JR is just the subjection of the legislature to the rule of law and then he goes further by drawing a distinction between strong and weak JR28. Strong JR is a system whereby the courts have the authority to override a statute in a particular case or modify the statute to make its application conform with individual rights29. While weak JR is a system whereby the courts do not have as much authority the courts may scrutinize legislation for its conformity to individual rights but they may not decline to apply it30. Waldrons focus is on societies that have strong JR.In making his argument against JR, Waldron makes four assumptions about a society. In this society there is a functioning democratic system, a set of judicial institutions that is functional, a belief and respect for individual and nonage rights and dissimilitude over the meaning of rights among members of the society31. It is the disagreement over rights that Waldron lay s emphasis on. In a society, people will have disagreement about the compatibility of the legislation and rights and when these disagreements exist there needs to be an ultimate authority that can settle the disagreements about rights.Waldron looks to two sort of reasons that need to be taken into account in evaluating the decision-procedure for settling disagreement. These are the outcome relate reason and the process related reason32. The process related reason33 are reasons for insisting that a person makes a decision that stands independently of the considerations about the appropriate outcome34. It is all about the process and the way the outcome is reached. In politics, the most familiar process-related reasons are those based on political equality and the democratic right to vote, the right to have ones voice counted even when others disagree with what one says35. Waldron continues his process related reason argument by saying that the legislature gives each person the great est say possible which is compatible with an equal say for each of the others36. He believes that representative system satisfies the demand for political equality which is equal voice and equal decisional authority37. Waldron believes that this is preferable to the outcome related reasons.Outcome related reasons38 are reasons for making the decision procedure in a way that will ensure the appropriate outcome39. It focuses on which institution brings about the best outcome.Waldron gives three reasons that favour JR producing a better outcome and he gives his reception to each argument. The first is the orientation to a particular case. The issue of rights are presented to the judges in the form of flesh -and-blood individual situations40. Since the courts are dealing with individual rights it helps to see how an individual is affected by a piece of legislation41. Waldrons reply to this is by the time these cases reach the risqueest court almost all trace of the superior flesh-and -blood right holders42 has vanished43. The judges tend to view these cases in an abstract way and the courts address these issue in a more general way44.The second argument is the orientation to a text in the bill of rights45. Waldrons response to this is that a legal right that finds protection in a Bill of Rights finds it under the supports of some official form of book of accounts in which the provisions of the Bill are articulated46. The written creation of the Bill of rights tend to encourage a rigid word based formalism which the courts may try to interpret in an obsessive manner47. Waldron believes that this can be avoided in a system of legislative supremacy because legislators can take on the issue for themselves without reference to the Bill of Rights formulations48. He also makes one final point which is judicial reasoning may be distort by an omission in the bill of rights49. He gives a scenario of a disagreement between positive (socioeconomic) rights and negative(lib erty) rights which may alter Judges understanding of the rights included50. They may give more weight to positive rights than negative rights which may lead to Judges striking down statutes that are trying to make up for the rights that failed to scan in the formulation of the bill of rights51.The third argument that Waldron gives his response to is stating reasons52. He says that Courts are concerned with the legitimacy of decision making therefore they focus their reason giving on facts that show that they are legally authorized by constitution, statute, or precedent53. This counts heavily against the court in the outcome related argument about JR over legislation54. The courts are distracted by the legitimacy issue they pursue and as a result they lose track of the heart of the matter55, whereas the parliament go directly to it56 and their reasons are given in debates and are published in Hansard or Congressional record57. He gives the example of Roe v Wade58 whereby none of the judges in the supreme court paid attention to the plaintiffs position that was being discussed59.Waldron reaches the conclusion that the legislature is a better process than the judiciary because it is a decriminalize and fair way of deciding disagreements over rights. The Judiciary being a non-democratic institution does not uphold democracy.MY OPINIONIn a democratic system rights that are upheld can be found in the Bill of Rights. For the sake of the question it is the British bill of rights that will be considered. This brings up the issue of JR. Judicial Review gives the court the authority to scrutinize statute or in some cases override statutes if it is incompatible with the bill of rights. One thing to telephone is that the court is a non-democratic institution. Looking at both sides of the argument they each carry weight Dworkin is of the view that JR improves democracy while Waldron is of the view that the parliament is better suited to improve democracy.From Dworkins ar gument I understood the difference between the majoritarian premise and the constitutional conception of democracy. In his book Dworkin thought the constitutional conception of democracy was a better way for democracy to operate. The constitutional conception of democracy is a good idea which upholds individual rights. Judges can be seen as independent bodies that can make decisions and interpret the law in a consistent manner unlike the government. In regards to governmental bodies in Britain, it can be seen that the executive and the parliament have some form of connection. It is possible that the executives may exert pressure on parliament seeing as how they make the parliament accountable. This could create inconsistencies.Dworkins theory relates democracy to rights, according to him without rights there is no democracy. As an individual in a community you need to have the disposition of moral membership and as such the community treats you with respect and as an equal which me ans that all voices are heard and everyone can fully participate in self-government which is a political right. In reality to gain equal membership in a community would be impossible.Waldron also brought up some compelling arguments against strong JR. His focus is on the right-based JR he believes that the process of JR is unsuitable for a democratic society whose main problem is the disagreement over rights. He believes that the disagreement can be resolved by adopting procedures that respect the voices and opinions of individuals whose rights are at stake and this procedure is done by the legislation. I agree with most of Waldrons theory but I still question some of what he proposes.Waldron explains the process related reasons and outcome related reasons as considerations that are separate but there are certain circumstances whereby the process and outcome work together as one. If the outcome is a bad one, then that means the process reasons that gave that outcome authority are in valid.It can be seen in Waldrons article he refers to process-related reasons including fair elections, majority decisions and citizen participation. I think this argument is biased in favour of the legislature, this is because all the processes he mentions are naturally associated with the legislature they are legislative practices. Waldron believes that JR is not a good final decision procedure because it does not make proper use of these practices. These practices are meant for legislative procedures. This is not a good argument against JR because the courts have their own process related considerations which are hearing out the cases of individuals who are represented by lawyers, looking to precedents, making decisions and if the individual is still unhappy with the outcome, there is always a view for an appeal. Just because the process is different does not mean it is not legitimate.He gave the argument of courts getting distracted because they seek legitimacy. Judges interpre t the laws to the best it can be and apply it to the cases of individuals. They look for legitimate reasons because they are trying to protect individual rights in accordance with law.I agree with his outcome related argument that refers to the orientation of the bill of rights. I also accept that, that much power should not be left to the courts without a body to question them seeing as they are unelected, but in Britain there is a hierarchy of courts and it can be seen that various cases are taken from the magistrate court to the crown court, sometimes high court and finally to the supreme court. I would like to think that the judges in these different courts check and balance each other out. This is because different courts ordinarily disagree with some of the decisions made.In addition to this, I would also like to make a point regarding the magistrate courts. In England, the judges in the magistrate are made up of people that come from the community, since these people come fr om the community, they can relate to the issues of majority and minority and that creates a chance for a well-rounded decision.In conclusion I am of the view that Judges should be given the power to scrutinize, not override legislation if it conflicts with rights in the bill of rights.1A Weale, Democracy (2nd edn, Basingstoke, Palgrave, 2007) p142 Ronald Dworkin, FREEDOMS LAW THE moralistic READING OF THE AMERICAN CONSTITUTION, (Oxford University Press, 1996) p73 Ronald Dworkin, FREEDOMS LAW THE MORAL READING OF THE AMERICAN CONSTITUTION, (Oxford University Press, 1996)4 Ibid p25 Ibid p26 Ibid p27 Ibid p158 Ibid p15-169 Ibid p15-1610 Ibid p1611 Ibid p1612 Ibid p1713 Ibid p1714 Ibid p1715 Ibid p1716 Ibid p1717 Ibid p1918 Ibid p1919 Ibid p2020 Ibid p1721 Ibid p2422 Ibid p2423 Ibid p2424 Ibid p2925 Ibid p2926 Ibid p3027 Jeremy Waldron, THE CORE OF THE CASE AGAINST JUDICIAL REVIEW (2006) 115 Yale L J 134628 Jeremy Waldron, THE CORE OF THE CASE AGAINST JUDICIAL REVIEW (2006) 115 Yale L J 1346 p529 Ibid p530 Ibid p531 Ibid p732 Ibid p1433 Ibid p1434 Ibid p1435 Ibid p1536 Ibid p2337 Ibid p2338 Ibid p1539 Ibid p1540 Ibid p1841 Ibid p1842 Ibid p1843 Ibid p1844 Ibid p1845 Ibid p1946 Ibid p1947 Ibid p1948 Ibid p1949 Ibid p1950 Ibid p2051 Ibid p2052 Ibid p2053 Ibid p2154 Ibid p2155 Ibid p2156 Ibid p2157 Ibid p2058 Roe v. Wade, 410 U.S. 113 (1973)59 Ibid p21