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Judicial Review in a Democracy

Paper Type: Free Essay Subject: Politics
Wordcount: 4539 words Published: 8th Feb 2020

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 The three main branches of the government are the Legislative, Executive and Judiciary. The Judiciary branch of the government acts as a law enforcement authority, also it has powers to make or strike down a law if it violates the constitution. Aside from that the judicial branch also has a well-known power which is recommended by the Supreme courts called “The Judicial Review”. In simple words it is a legal process with different branches in which high courts deals with the performance and effectiveness of the other two branches of the government (Legislative and Executive) if they are violating the constitution. This process is carried out by exceptional court and not by the regular courts in many countries e.g. Germany, Australia (Masilamani, 2014). This ideology was established in the case of (Marbury vs. Madison) by court in 1803. This topic is explained further more in detail of what is judicial review, its role, controversies, its limits and accountability of decision maker to the electorates also how it is important in democracy.

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In our democratic society people’s voice and justice is given more importance and to bring it into reality government has been formed of three branches which all have equal importance. One of them which is to be discussed about is the Judicial system and one of its main process of Judicial Review. Judicial Review is very significant process used to rectify the role of courts played in administrative decisions for fair procedures and the powers granted by the parliament (Masilamani, 2014). To make sure that the courts are not biased and free of any kind of influence from public or any political institution it is important for the judicial system to be independent to make rational decisions, the courts are made independent to lay down the principle of all people treated fairly and equally under the law (Masilamani, 2014). The court system is hierarchical in nature and there is different type of courts for different cases and nowadays the most used legal system is the common law. Perhaps the judicial system plays an important role in some democratic society and in others it is the parliament sovereignty e.g. UK which means the parliament is the supreme lawmaker body and courts cannot nullify acts of it (Masilamani, 2014). The courts are active to a certain degree depending on the type of government, the Judicial Activism is an e.g. from USA in which courts overrule legislative and government actions if they violate the constitution one e.g. is Roe vs. Wade (1973) the decision made in judicial activism did not allow the restricted laws on abortion which violated the constitutional rights (Masilamani, 2014).

Although, Judicial Review and Judicial Activism are different but they are used in the same context. The main purpose for setting a separate court, a higher authority for judicial review is for it to evaluate the actions made by the public bodies to be within the lawful boundary and they do not misuse their power. Hence, the decision makers in Supreme Court are impartial and independent and are provided with incentives from the government so that they cannot be corrupted. JR is used when all the other plans have failed and as its name it’s a review of decision making under the rule of law. The Judicial Review’s role in a democratic society is to provide the structure of norms written in the constitution and its meaning and not the rights (Stone, 2008). Somehow it is a complex process and has restrictions in particular matters which is applied on decision makers and it effects their ability to make right decisions (McKay, 1983). The author has mentioned three types of restrictions on decision makers in judicial review; first is the problem of interpretation which is different from ordinary legislation, second is the courts are administered to decide the compatibility of one law with another, as well as the agreement of regulations, rules and executive actions with explanation of legislative will and the third is when constitution or courts are regularly required to choose matters that involve critical judgments about the kind of society in which we live in. This shows every judge is bounded by the rules of precedent and stare decisis which is that a high court decision is legally binding over lower court, the judge has to follow the decision made in higher court in a previous case with same context for same case in present (McKay, 1983). The stare decisis describes the process of it. On the other hand, there are some controversies on the role of judicial review in courts which is described The Undemocratic Character of Judicial Review, it is a limitation in powers of JR (McKay, 1983).

The author explained that judicial review did not mean judicial supremacy its just to review the what constitution states about the authority, power and its limits for the government in public welfare (McKay, 1983). There are some controversies regarding the judges over JR as some can be bold and can overturn the decisions but most do not, the rights of JR are debatable in countries like Canada and Australia with complex government systems the structural view of judicial review comes in light (Stone, 2008). In the article the author describes the judicial review of two types structural and rights based judicial review however, structural reviews are the subject of dispute and thus typically generate big and difficult piles of case (Stone, 2008). The structural judicial review is about methods of how government is operated but it divides the power between constituent parts of the government, one e.g. would be complex body of the Australian government which has divided its power in different branches including for judicial review. Also, countries like Canada, Australia and USA have different roles for judicial review (Stone, 2008). The Australian government has same or close constitutional structure to Canada and USA, so in the case of Australian government the judicial branch is a separate set up and is ultimate and assertive power (Stone, 2008). The controversy rising upon the legitimacy given to judicial system to exercise its power freely may have been resulted in them crossing their legitimate boundaries a few times (Stone, 2008). The author also stated about the right based judicial review or democracy-based objections to legal rights which narrow downs to three points which are; firstly, the moral nature of rights topic increases the trouble of logical disagreement. Secondly are the constitutional rights are stated usually in general language and in the unavailability of textual guidance, judges applying constitutional rights have more options to decide among competing conceptions of hypothetically expressed moral principles in the view of on-going dispute (Stone, 2008). It could be that when they make a decision on a case, they are striking their own views. Thirdly, the objections set aside the idea of political insulation of judges makes them superior protectors of minorities and refuse that judicial enforcement of rights involves the reinforcement of democratic moral standards (Stone, 2008). One can say that the constitution is full of concepts stated in abstract and general terms for which judges are needed to throw light on the specific content (Stone, 2008). Afterall the judges clear out the legislative intent to make the statutes easily available for the society to understand the constitution better. But the constant pressure to clarify the legislative intent at a higher degree cannot always guarantee specific meaning for the constitutional language due to some vagueness in the text which may sometimes require them to focus on the natural interpretation of the text (Stone, 2008). The natural interpretation can also be said as the unwritten text that is needed some times when the written constitutional text does not include principles required. The Australian government has a limited notion for the rule of law but they still identify it along with minority rights in the unwritten text of constitutional principles (Stone, 2008). The textual vagueness and inference of the principles from the text always will need judicial discretion and one can point out the structural sphere with interpretation of constitutional rights (Stone, 2008). At last the author has further described and argued about the structural based and rights based judicial review in detail and how it works in different countries as she has mainly focused on the federal judicial review and narrow downs for the need of constitutional balance and right distribution of power among the government bodies to function accordingly to the given principles. As the government cannot always provide the perfect solution always and perhaps courts have to step in. The judicial role is reasonable because they are particularly fitting to provide a balanced interpretation of the constitution as they aim to protect the rights of individuals (Stone, 2008).

The other article on the controversy about the judicial review as the role of courts states is though the judges in JR help individuals to protect their rights by their position and power they get but there is some procedural objection to JR by critics in the article is; first is majoritarian through which judicial review could be said as illegitimate, second is participatory in which claims are that JR only focuses on important controversial political cases rather than ordinary cases, third is disagreement based on out come assessments and last is the methodological which questions the legitimacy of whether the part of institutional framework is of well-maintained society (Doherty & Pevnick, 2013). The questions raised on Judicial review could lead to alternative legislative supremacy, but the critics still stick to the ultimate legitimacy and particular forms of judicial review (Doherty & Pevnick, 2013). The article explains the position of judges those are put in institutional positions work in two separate mechanisms i.e. they are isolated from any kind of political pressure not consider public point of view as legislators and the difference in position of both legislative and judicial agents are considered to be put in a surrounding less constrained by electoral pressure. For e.g. the significance of constitutional rights and precedent as mentioned may put more important claims in judicial ground than on legislative (Doherty & Pevnick, 2013).

The decision-making power of judiciary separates it from legislature because of its political and public free influence environment. The insulation argument by the authors account for some decisions that are made by the courts are better to help protect rights, freedom and to clear out the bias in the process (Doherty & Pevnick, 2013). As the judicial branch of the government also deals with the most controversial cases without bias, on the other hand with legislature they may favour a political party or a group over others which puts them in negative light (Doherty & Pevnick, 2013). The following criticism made by authors as given is about the Majoritarianism, it is to be told that judicial review is antimajoritarian and illegitimate no matter what the outcome is. The majoritarianism is further explained in two justifications of intrinsic and instrumental, both are the critical evaluators of how the insulation argument works for the judicial review (Doherty & Pevnick, 2013). Firstly, the instrumental arguments do reason and assess the mechanism of judicial review very critically for their particular goal, secondly, the intrinsic justifications are argued against both legislative and judicial powers because both are diverted from majoritarianism. These both justifications try to state the need and support for the insulation argument to prove the judicial review legitimate and the attack for the alternative representation to satisfy the requirements in judicial review does not justify outcomes for the insulation argument itself (Doherty & Pevnick, 2013). Another controversial argument on judicial review is The Participatory Concern which is also can be said as voice-based complaint (Doherty & Pevnick, 2013). The freedom of speech and the rights of citizen for whatever they can do under the laws the citizens live. An e.g. given by authors of Tushnet, that the simple principle of that people can govern themselves, tells that it could be trouble if left upon to decide that who should resolve the such matters; elected body of officials or people themselves (Doherty & Pevnick, 2013). Both main criticisms, the participatory concern and majoritarianism do not promote direct democracy as given e.g. allowing referendum on important issues. It explains if the judicial review works in a larger intuition and helping to protect rights of the individuals then it should not object JR (Doherty & Pevnick, 2013). However, with this the authors compare and contrast the theories of the participatory concern and the majoritarianism which leads to the reasoning of objectives of the decisions made under judicial review or legislature.

The other arguments followed are the Disagreement and Outcome based Assessment (DOBA) also the Methodological Criticisms (MC) (Doherty & Pevnick, 2013). The evaluation of the JR debate requires both experimental and normative debate for need of different outcomes (Doherty & Pevnick, 2013). The (DOBA) gives two limits to the approach which are the different outcomes of the different judicial practices and introducing the effects of judicial review (Doherty & Pevnick, 2013). The constant variance about which results are necessary do not give enough reason to assess judicial review for action criteria or to dismiss the discussion of judicial and legislative power (Doherty & Pevnick, 2013). In (MC), The Waldron gives few examples of core and non-core cases advocating illegitimacy of judicial review. According to the authors it can’t be said that Waldron’s argument is right in cases of core and non-core cases which vary in a wide range. The core case contains two different types as normal case and ideal theory (Doherty & Pevnick, 2013).As given in the article Waldron has stated four features of the core cases i.e. 1) political institutions in good working condition, 2) established and independent judicial system in working order, 3) importance given to individual rights and minority rights and 4) disparity in what are rights and what they sum up to (Doherty & Pevnick, 2013). The ideal theory to core case is described about Rawls’s work of balanced society i.e. everyone accepts the same principles of justice and other do as well also, general institutions usually satisfies the principles (Doherty & Pevnick, 2013). The political institutions are tools for groups to help with justice, solve collective problems and interests however, Waldron seems to find a core argument against judicial review which is free of its historical evidences and questions about its effects (Doherty & Pevnick, 2013).

Hence, the argument of core and non-core case is not sufficient to prove result-based perspective to elaborate by defenders of the insulation argument (Doherty & Pevnick, 2013). Yet, the authors say that the argument should be on evaluations of judicial review combined of normative and empirical analysis to allow to raise question of whether such system is required to be allowed to make decisions in a political and legal surrounding which is free from any kind of influence (Doherty & Pevnick, 2013). There are so many controversies against judicial to prove it illegitimate or compare it with legislative supremacy but in the end the critics in some way agree that the process of a judicial review is needed in a legal environment to exercise its legitimate power given by constitution as long as it serves the purpose of bringing justice and balance in the democratic society.

As for the issue regarding need for limited government and decision maker for those limits the book states that the courts hold a powerful authority to declare any act of the legislation void and most of the time the question is raised of if we need a limited government in our democratic society which throws shade on the importance given to courts more than legislation to which answer might lead to misuse of a concrete power (Boudin, 1911). Although, it cannot be said that the supreme court is the sole interpreter of the written constitution, the power is freely exercised (Boudin, 1911). The courts cannot invalidate the acts of legislature on the grounds of vagueness, such an ability is refused to courts because it could turn judicial power into absolute over both society and government and turn the government into a judicial absolutism (Boudin, 1911). One of the e.g. was a famous case held in Supreme Court of United States Munn vs. Illinois (1876), in which legislature was to be declared as the exclusive judge so that powers may not be abused by judiciary and stop it from converting the government into absolute judiciary (Boudin, 1911). The case of Trevett v. Weeden (Rhode Island) was one the cases in which the law was declared as unconstitutional because of abolition of trial by jury, then there was another of same kind Bayard v. Singleton (North Carolina) these cases are examples of misuse of judicial power under the law for which the judges were investigated and removed (Boudin, 1911). After few more incidents like this the logic of Marbury vs. Madison case was used very rarely but only by state level and federal level and only in extraordinary situations (Boudin, 1911). The question was raised of how far should this power be exercised? to which one can say as long as its stays in its boundaries to exercise the power. From the previous years so many changes have been made for courts, how to exercise their power and when and how much.

A description made on Judge Lurton’s announcement was a government of laws and not a government of men which had made the headlines in New York Times and few editors concluded it that nothing can help them not even a amendment in the constitution, the only hope was of proper men get elected for judicial positions to avoid misuse of power as the statues and laws made in the previous cases has restricted some powers of courts to avoid judicial take over and acting on the behalf of the legislature (Boudin, 1911). The need for limited government is no solution for discretion of judicial and legislative power as both are required to work for the society and its betterment. But to keep balance legislative supremacy is necessary as it has to abide by the laws and judicial branch is necessary as an independent system under it to keep check upon its actions and channel the system more carefully.

For the final topic of the essay on the role played by the decision makers on the accountability to the voters can be described as in the article, the role of MP’s in election, its process, lack of accountability for misconduct and voter’s perception (Vivyan, Wagnor & Tarlov, 2012). The decision makers should be held accountable for their actions, and voters should expect electoral accountability punishment and refuse to stand for the elections again. The authors claim to argue about the accountability, even after exposing the misconducts of the candidates when they run for the elections again to which it can be said that maybe the voters do not change their point of views regarding them or simply, they do not vote (Vivyan, Wagnor & Tarlov, 2012). The authors conducted different surveys and tests to know more about the chaos. Few of them were the vote surveys and cross-sectional and for the results they found that the electoral accountability was very weak which could be because of lack of information provided to the public (Vivyan, Wagnor & Tarlov, 2012).

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It is important for voters to know the position of their representatives and some information about them to vote accordingly for fair elections for example, the 1992 US House Banking Scandal (Vivyan, Wagnor & Tarlov, 2012). They also stated some perceptions for misconduct which were that electorates need to be aware of the publicly available information because gathering information about could be expensive (Vivyan, Wagnor & Tarlov, 2012). The information could help a lot as view on the MP and its party, it could reveal a lot of bias and happenings and scandals that public is not generally aware of (Vivyan, Wagnor & Tarlov, 2012). The sanctions upon the misconduct may tell something about the revelation of the information whether will affect their vote or not (Vivyan, Wagnor & Tarlov, 2012). Also, the panel survey data conducted did tell the influence of media too affects the perception of the voters towards it representative.

The British political system works against the electorates conditioning their vote on MP behaviour and may describe why even voters who think their representative engaged in wrongdoing decide to cast their vote based on other considerations (Vivyan, Wagnor & Tarlov, 2012). We also might need to decide legal political institutional frameworks that allow voters to use that information to lead their vote of choice (Vivyan, Wagnor & Tarlov, 2012).

The Election Management Bodies (EMB) manage the election process and recruit people for political bodies to represent people (“Working Group on Accountability of Election Management Bodies for Voting Integrity”, n.d.). Elections nowadays are becoming complex and more strategic which sometimes lead to electoral errors (“Working Group on Accountability of Election Management Bodies for Voting Integrity”, n.d.). Although, during a serious election, errors in voting administration might lead to legal problems and intense scrutiny of any procedural which cannot be commanded by electorate officials, and can potentially result in a requirement to re-do a very expensive electoral contest by court orders (“Working Group on Accountability of Election Management Bodies for Voting Integrity”, n.d.).

Such failures will not only damage an EMB’s reputation, but more importantly can erase the public’s trust in its national legal bodies of democracy and leave unanswered questions about the legitimacy of election results (“Working Group on Accountability of Election Management Bodies for Voting Integrity”, n.d.). the EMB’s have access in different hierarchical structure and can exercise the powers to set up the process and rules for the election processes (“Working Group on Accountability of Election Management Bodies for Voting Integrity”, n.d.). the election process is no doubt costly and it improves with years to avoid duplicate voting, impersonation or vote tabulation errors and voting fraud also it depends on the three pillars as mentioned in the article which are Integrity, Accessibility and Economy. (“Working Group on Accountability of Election Management Bodies for Voting Integrity”, n.d.). they are challenged to increase their efficiency and reduce the cost to keep them affordable with new appliances used for ballots. Their main purpose is to see and manage the smooth function of elections without any disruptions (“Working Group on Accountability of Election Management Bodies for Voting Integrity”, n.d.).

The decision makers play important role in electorate process as they are the people to represent the all types of groups at a national level and for functioning of the government. So, the elections are important for voters and also the information made available to them regarding their representatives to perform for betterment of the people and society. The elected representatives are the one who later decide policies in our favour and fulfil all the requirements they promise during their campaigns to make this democratic society a better place.


Conclusion, to sum it up one can say the judicial power is merely suggests the solution for the social and economic troubles in the political circumstance. The discretion of both legislature and judiciary leads to formation of something new to keep society in balance. From the essay one can say that legislative supremacy is important as per amended constitution but judiciary as legal body to keep check on the critical behaviour and actions of the political body under legislation but independent is also necessary. The critics have been raising questions on the exercise of the judicial power in a democratic society that if it could bring balance and justice to it seems to be fair. As the judicial system has gone through so many changes in previous years and helped to maintain political bodies to stay in their boundaries. However, no matter the back lash the judicial system faced and is facing now we can say that it has improved for better and plays an important role in the government. Apart from being independent and access to exercise its power freely under rule of law it’s a great tool for our democratic society being bias free and any influence free for a democratic society.



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