Judges Power to Override Legislation


The issue of judges having the power to override legislation can be linked to Judicial Review (JR) which has been a point of debate between different scholars. To understand judicial review, one must look at the definition of democracy and the nature of it. Democracy as described by A Weale is “a government whereby important public decisions 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 have equal political rights.”[1] Democracy can be seen as a good way of choosing government and as such the government cannot 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 exist, the people must have rights and this is the major reason Judicial Review exists; to uphold these rights for the system 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 arguments for Judicial Review put forward by Dworkin as well looking at the arguments against it given by Waldron and I shall give my conclusion.


Firstly, the bill of rights according to Dworkin are the clauses of the American constitution that protect individuals and minorities from government[2]. Therefore, these clauses must be given the moral reading. Dworkin gives meaning to the moral reading in his book “Freedom’s law: the moral reading of the American constitution”[3]. He explains that “the moral reading proposes that judges, lawyers and citizens should interpret and apply the abstract clauses on understanding that they invoke moral principles about political civility and justice”[4].  “The moral reading brings political morality into the heart of constitutional law but this is uncertain and controversial, therefore any system of government that makes such principles part of its law must decide whose interpretation and understanding will be authoritative”[5]. 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 own moral convictions on the public”[6].

Democracy means government by the people[7] as seen in Dworkin’s article but he did point out that there are two ways in which democracy can operate. The first is the ‘majoritarian premise’[8] and the second is the ‘constitutional conception of democracy’[9]. The majoritarian premise is of the view that political decisions and procedures should be made based on the favour of the majority or the plurality of the citizens provided that they have adequate information and enough time on reflection[10].

Dworkin rejects the view of the majoritarian premise. This is because even though it seems that most people in the United States of America have accepted the majoritarian premise, there are still some who believe that the majority should not always be the final judge[11]. The reason for this is that there are situations where individual 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 way[12] which is unfair to minorities and individuals.

Dworkin looks to a different, better account of the value of democracy[13]. This is the constitutional conception of democracy[14]. This takes on the view that “collective decisions should be made by political institutions whose structure, composition and practises treat all members with equal concern and equal respect”[15]. This is done out of concern for the equal status of citizens and not out of commitment to the goals of majority rule[16].

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 also individual citizens.

In relation to Dworkin proving that JR improves democracy, he proposes three arguments 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.

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Dworkin rebuts this argument in two forms which are the statistical collective action and the communal collective action.[17] A collective action is statistical when a group of people do that action as only a matter of individual interest, that is, doing it for their own selfish gains but it leads to a result that favours everyone in the community[18]. While a collective action is communal when it cannot be reduced to some statistical function of individual action[19]. This is a matter of individuals acting together consciously to bring about a result.

Dworkin believes that if a loss of liberty should exist then 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 must treat an individual with respect and as an equal[20]. This relates to the concept of moral membership. 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 structural[21] which explains that the community must have a shared culture, history and language. The second is relational[22] 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 also means that people have a part in collective decision making, as well as a stake in what happens and they also have independence from it[23]. 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 saying that citizens can also participate in the political process through other ways. One 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 groups[24]. Dworkin refers to the first amendment’s association of protection that prohibits religious discrimination which enhances that power[25]. 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 referendum[26].

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.


Waldron takes on a different view regarding Judicial Review and democracy. In his article “THE CORE OF THE CASE AGAINST JUDICIAL REVIEW”[27]Waldron 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 JR[28]. 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 rights[29]. 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 it[30]. Waldron’s 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 minority rights and disagreement over the meaning of rights among members of the society[31]. It is the disagreement over rights that Waldron lays 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 related reason and the process related reason[32]. The ‘process related reason’[33] are reasons for insisting that a person makes a decision that stands independently of the considerations about the appropriate outcome[34]. 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 one’s voice counted even when others disagree with what one says”[35].  Waldron continues his process related reason argument by saying that the legislature gives each person the greatest say possible which is compatible with an equal say for each of the others[36]. He believes that representative system satisfies the demand for political equality which is equal voice and equal decisional authority[37]. Waldron believes that this is preferable to the outcome related reasons.

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‘Outcome related reasons’[38] are “reasons for making the decision procedure in a way that will ensure the appropriate outcome”[39]. 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 reply 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 situations’[40]. Since the courts are dealing with individual rights it helps to see how an individual is affected by a piece of legislation[41]. Waldron’s reply to this is by the time these cases reach the highest court almost all trace of the ‘original flesh-and-blood right holders’[42] has vanished[43]. The judges tend to view these cases in an abstract way and the courts address these issue in a more general way[44].

The second argument is the orientation to a text in the bill of rights[45]. Waldron’s 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 words in which the provisions of the Bill are articulated”[46]. 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 manner”[47]. 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 formulations”[48]. He also makes one final point which is judicial reasoning may be distorted by an omission in the bill of rights[49]. He gives a scenario of a disagreement between positive (socioeconomic) rights and negative(liberty) rights which may alter Judges understanding of the rights included[50]. 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 register in the formulation of the bill of rights[51].

The third argument that Waldron gives his response to is stating reasons[52]. 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 precedent”[53]. This counts heavily against the court in the outcome related argument about JR over legislation[54]. The courts are distracted by the legitimacy issue they pursue and as a result they lose track of the heart of the matter[55], whereas the parliament go directly to it[56] and their reasons are given in debates and are published in Hansard or Congressional record[57]. He gives the example of Roe v Wade[58] whereby none of the judges in the supreme court paid attention to the plaintiff’s position that was being discussed[59].

Waldron reaches the conclusion that the legislature is a better process than the judiciary because it is a legitimate and fair way of deciding disagreements over rights. The Judiciary being a non-democratic institution does not uphold democracy.


In 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 remember 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 Dworkin’s argument 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 sense of moral membership and as such the community treats you with respect and as an equal which means 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.

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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 Waldron’s 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 invalid.

It can be seen in Waldron’s 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 chance 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 interpret 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 usually 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 from 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.

[1]A Weale, Democracy (2nd edn, Basingstoke, Palgrave, 2007) p14

[2] Ronald Dworkin, FREEDOM’S LAW: THE MORAL READING OF THE AMERICAN CONSTITUTION, (Oxford University Press, 1996) p7

[3]   Ronald Dworkin, FREEDOM’S LAW: THE MORAL READING OF THE AMERICAN CONSTITUTION, (Oxford University Press, 1996)

[4] Ibid p2

[5] Ibid p2

[6] Ibid p2

[7] Ibid p15

[8] Ibid p15-16

[9] Ibid p15-16

[10] Ibid p16

[11] Ibid p16

[12] Ibid p17

[13] Ibid p17

[14] Ibid p17

[15] Ibid p17

[16] Ibid p17

[17] Ibid p19

[18] Ibid p19

[19] Ibid p20

[20] Ibid p17

[21] Ibid p24

[22] Ibid p24

[23] Ibid p24

[24] Ibid p29

[25] Ibid p29

[26] Ibid p30

[27] Jeremy Waldron, ‘THE CORE OF THE CASE AGAINST JUDICIAL REVIEW’ (2006) 115 Yale L J 1346

[28] Jeremy Waldron, ‘THE CORE OF THE CASE AGAINST JUDICIAL REVIEW’ (2006) 115 Yale L J 1346 p5

[29] Ibid p5

[30] Ibid p5

[31] Ibid p7

[32] Ibid p14

[33] Ibid p14

[34] Ibid p14

[35] Ibid p15

[36] Ibid p23

[37] Ibid p23

[38] Ibid p15

[39] Ibid p15

[40] Ibid p18

[41] Ibid p18

[42] Ibid p18

[43] Ibid p18

[44] Ibid p18

[45] Ibid p19

[46] Ibid p19

[47] Ibid p19

[48] Ibid p19

[49] Ibid p19

[50] Ibid p20

[51] Ibid p20

[52] Ibid p20

[53] Ibid p21

[54] Ibid p21

[55] Ibid p21

[56] Ibid p21

[57] Ibid p20

[58] Roe v. Wade, 410 U.S. 113 (1973)

[59] Ibid p21

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