Exam Answers.docx

6 Pages
Unlock Document

University of Toronto St. George
Carolyn Cummins

Exam Questions 1. Waldron accepts 1) protecting fundamental rights 2) written laws but 3) denies judicial review. Before discussing how Waldron is against judicial review, we must define what judicial review is: the power of the judicatory to sasses the conformity of legislation to constitutional norms (including rights). There are 2 forms of judicial review: 1) Strong Form: Judiciary has the power to strike down or refuse to apply to unconstitutional laws 2) Weak Form: Judiciary can declare laws inconsistent with constitutional norms (not denying that law is invalid but that it is inconsistent and thus legislative has an obligation to amend it). Waldron opposes both of these types. His aim is to have a general case against judicial review – he asks the question if judicial review is an appropriate arrangement in any democracy? He attacks judicial review on two fronts: 1) Results- Based arguments and 2) Process based arguments. Results based argument is that judicial review does not often claim and provide a way for society to focus clearly on the real issues of the state when citizens disagree about rights – it distracts them with issues about text or interpretations. The defenders of judicial review think it brings good results because a) orientation of courts in particular cases b) orientation of courts to text and of rights c) requires courts to state reasons. Waldron’s response is that these outcome related reasons cut in both directions: there are things about legislative that sometimes make them vulnerable to the sorts of pressures that rights are supposed to guard against BUT there are also things about courts that make it difficult for them to grapple directly with the moral issues that rights disagreement present. Process Based Argument is regardless of the outcome judicial review is illegitimate because it is undemocratic because democracy involves each citizens having equal say in conditions under which there is a widespread of disagreement about rights. Judicial Review gives certain persons, judges more of a say then others- deviant institution in a democratic state. For if certain persons have more of an equal say then others must have less, they are deprived of their right to an equal say. (Tyranny of the majority). Waldron’s argument applies to a society that has: 1) well-ordered democratic institutions 2) well- ordered judicial institutions that settle disputes and uphold the rule of law 3) a commitment by the majority to individual rights 4) Disagreement about rights. If these conditions are meant, Judicial Review is not appropriate ( Waldron’s 4 assumptions) A defender of judicial review may respond by questioning Waldron’s 4 assumptions. Part of what is objectionable about Judicial Review is that they point to facts about particular cases that back up their arguments but Waldron wants to create a general argument that can be applied in all cases. But the issue here is that he goes on to make hypocritical claims basically saying “that defenders of JR will provide a rosy view of JR then I will provide a rosy view of legislation”- biased presenting evidence. Furthermore, Waldron in the beginning of his article points out a problematic feature concerning how theorists defend judicial review- they cherrypick : they select facts that make their arguments more attractive while overlooks facts that can be doubting. Waldron’s response is that this isn’t a fair way to argue- one should argue based on all relevant evidence, rather than simply picking evidence that support some cases. Notice how Waldron presents the case against JR though- he can point out cases in which JR failed to protect the rights and then say JR is objectionable. He is mirroring the exact same strategy of cherrypicking that he opposes. He is taking JR at its worst and comparing it with legislative activity at its best. The problem here is that Waldron is assessing how just a legislative e might be in an idealized world and how unjust courts can be in an existing world. Also, a defender may ask is Waldron’s conception of democracy attractive? Waldron thinks that his procedural argument against JR is crucial. A democracy is a system that gives each citizen an equal say in decision making. A defender may ask what if the majority decides to enact and maintain judicial review- is it sill illegitimate for Waldron. Waldron is committed to a procedure and to the view that all ends should be selected through this procedure. But what if people select JR through a legitimate procedure- this arguably what happened to Canada. The issue here is that at first glance this seems like a really attractive position: everyone likes to have a say and equality- it seems like a perfect ideal. BUT everyone can have a say and the outcome can still be very bad for certain people (for ex. the minority)- not an equal treatment . Mackinnon would say- giving everyone an equal say appears to treat everyone equally but when certain groups within society has systematically discriminated against, treating everyone as equals is not enough- the state has the duty to ameliorate the legacy of historical advantage. Waldron case against JR is weak- he simply objects to the burdens that defenders of JR and then proceeds to impose those same burdens on defenders- Waldron`s argument is unfair. 2. The tyranny of the majority is the tyranny of the prevailing opinions and feelings. The tendency of society to impose by other means of civil penalties, own ideas and the practices as rules of conduct on that who dissent from them. It prevents the formation of any individuality not in harmony with its ways; it compels all characters to fashion themselves upon the mode of its own. Mill provides a solution on which he calls the Harm Principal. The liberty of the individual may be legitimately constrained 1) to prevent the individual from harming others (or subjecting others to a substantial risk of harm) in cases in which the constraint is in the general interest of society and 2) require an individual to further the interests of another individual of society. He justifies the HP by using the idea of abstract right as a thing independent from utility. He regards utility as the ultimate appeal on all ethical questions, and grounds on the permanent interests of man as a progressive being. According to Waldron, MCD is an alternative response to the problem of the tyranny of the majority by using a strategy to distinguish tyranny from mere disagreement. In Waldron eyes, tyranny involves the denial of rights- a decision of the majority is only tyrannical if 1) decision is wrong and 2) majority (those who decide) imposes its will on minority (those whose rights are affected). In a well-ordered legal system, government is accountable to the people- Accountability means that the public power must answer to: Waldron`s majoritarian democracy: preferences of a majority of adult citizens as expressed during elections.. Waldron advocates for majoritarian democracy so he sets out what is tyranny or not. In a MD, preferences are legitimated not by value of their content but by attracting the assent of the many that is a majority of adult citizens at the ballot box- the popular assent of the many transforms any preference from a private wish into a public purpose. According to Sachs, solving the tyranny of the majority is possible by basing judicial decisions on MCD. Modern constitutionalism: the right of each individual within the legal order to just governance at all times. Instead of MD, MCS denies that the duty of the legal system is to answer to preferences; rather the inherent dignity of each person imposes a duty on all branches of government. (Preferences vs. Rights). Also, there are different accounts of what it means for government to be accountable to the people. In a MD view (Waldron), government is accountable to the people if public power must answer to the preferences of the majority of adult citizens. MCS: goverement is accountable to the people if public power must answer to right of every person within legal order to just governance- the people encompasses all adult citizens, but also children, immigrants etc. (To Whom Accountability is owned) . In MD view, the accountability is intermittent: persons are to hold government accountable by excursing their political rights at the ballot box during elections. MCS does not conceive of accountability in terms of the right of persons to occasionally register their preferences endorsing the party whose preferences on issues are their own BUT As bearers of a right to just governance that places ongoing obligations on the exercise of public power. Waldron`s view: majoritarian democracy is a accountable so long as the majority endorsees some vague commitments. Modern Constitutionalism: society must be organized in such a way that any individual within the legal order can at any time stand on his or her right to just governance and bring a constitution. 3. According to Waldron, modern constitutional states are a defective attempt to give everyone an equal say, in his opinion it is better to have legislatives acting without judicial review. Judges shouldn’t have any constitutional cases; it is vulnerable to attack on 2 fronts. 1) Results based argument- doesn’t provide a way for society to focus clearly on the real issues of the state when citizens disagree about rights 2) Process Base Arguments- politically illegitimate so far as democratic values are concerned- by privileging majority voting among a small number of unelected and unaccountable people-it disfranchises ordinary citizens. It doesn’t give each citizen an equal say- only to a tyranny of majority: The problem of the tyranny of the majority is by using a strategy to distinguish tyranny from mere disagreement. In Waldron eyes, tyranny involves the denial of rights- a decision of the majority is only tyrannical if 1) decision is wrong and 2) majority (those who decide) imposes its will on minority (those whose rights are affected). It gives certain persons,(judges) more to say than others, therefore it is a deviant institution in a democratic state According to Sachs, the court must base decisions on constitutional principles. When deciding a conditional matter within its power a court: a) must declare that any law or conduct that is inconsistent with the constitution is invalid to the extent of inconsistency and b) may make any order that is just and equitable. For example, the definition of marriage in the common law and the Marriage act in South Africa violate constitutional commitments to equality and dignity. According to the courts, the exclusion is unconstitutional, there can be only be 1 answer to the question as to whether or not such couples are denied equal protection and subjected to an unfair discrimination- clearly, they are both drawing on discriminatory social practices, the law in the past failed to secure same sex couples the dignity, benefits and responsibilities that accords to only hetro sexual couples. – Similar to Mackinon where she recognizes the injustices of the past of discrimination of women (liberalism ideology). According to Mackinnon, she has a passive virtue of judiciary. Her position is that the courts should not (and says they do not) impose their own
More Less

Related notes for PHL271H1

Log In


Don't have an account?

Join OneClass

Access over 10 million pages of study
documents for 1.3 million courses.

Sign up

Join to view


By registering, I agree to the Terms and Privacy Policies
Already have an account?
Just a few more details

So we can recommend you notes for your school.

Reset Password

Please enter below the email address you registered with and we will send you a link to reset your password.

Add your courses

Get notes from the top students in your class.