Judicial Review and Democracy

Abstract

The fact that the United Kingdom, the Netherlands and South Africa have begun to interpret and apply the separation of powers in a way that allows the judiciary to check the exercise of legislative power, tells us very little about the justification of this development. A legal construction such as the judicial review of legislation needs to be justified if it is to enjoy any legitimacy. However, it is probably safe to say that justifying judicial review is a particularly vexing question that is unlikely ever to result in political or academic consensus. One of the main reasons for this is such review’s perceived inconsistency with popular democracy. Why are unelected judges to be allowed to test the constitutionality of laws passed by democratically-elected parliamentarians? In essence, should the will of majoritarian decision-making models be questioned or even overturned by models that do not ascribe to the same principle? This chapter explores the justification of judicial review against the background of democratic objections and concludes that the principle of judicial review is justified. The real question to be answered deals with how such review has to be structured.