PHL271H1 Study Guide - Final Guide: Well-Order, Reasonable Person, Cherry Picking
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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
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
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
Exam questions: 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). He attacks judicial review on two fronts: 1) results- based arguments and 2) process based arguments. 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. 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.