Making Rights Count: Finding the Balance between Judicial Review and the Right to Self Government

Abstract

This paper summarises the arguments on both sides of the case in respect of judicial review as articulated by Ronald Dworkin and Jeremy Waldron. Both of these authors represent two opposing positions with respect to judicial review: Dworkin arguing that judicial review is necessary because protection of human rights represents a limit on legislative power and the legislature should not be the final judge of when its power should be limited to protect individual rights; and Waldron arguing that judicial review is an unacceptable interference with democracy. Essentially, commentators on judicial review can be split into two camps: judicial supremacy (based on traditional American constitutionalism) as represented by Dworkin; and democracy (or perhaps, more accurately, parliamentary sovereignty) as represented by Waldron. Having introduced the arguments on each side, this paper then investigates how these opposing models work in practice and then recommends a model that strikes the appropriate balance between judicial review and democracy.