Judges Power to Override Legislation

judge major power to Override LegislationINTRODUCTIONThe put out of decide having the power to annul polity mess be linked to judicial Re learn ( jr. which has been a fate of debate surrounded by divers(prenominal) scholars. To understand judicial freshen, atomic number 53 must look for at the definition of body politic and the nature of it. body politic as described by A Weale is a government whereby in-chief(postnominal) humans stopping points on promontorys of faithfulness and policy depend, directly or indirectly, upon public opinion formally expressed by citizens of the community, the vast bulk of whom get d sustain reach political rights.1 Democracy nates be assuren as a good dash of choosing government and as such the government bottom non violate on the rights of the pot. This relates to the tender contract opening which was shedn by washbowl Locke whereby the people retain to agree to give up their independence as long as the government agr ee to do what is mentioned in the contract. The social contract theory was created to protect the natural rights of the people. For a democracy to personify, the people must bring in rights and this is the major author Judicial Re depend exists to keep on these rights for the system to be democratic. Therefore, I will be supporting the intuitive feeling that the lawcourts should be given the power to scrutinize, non override legislation if it conflicts with the rights in the observation of Rights. I will be feel at principles for Judicial Re expectation put forward by D makein as well looking at the melodys against it given by Waldron and I shall give my conclusion.DWORKINS THEORYFirstly, the level of rights according to Dworkin atomic number 18 the clauses of the American constitution that protect individuals and minorities from government2. Therefore, these clauses must be given the moral education. Dworkin gives pith to the moral adaptation in his reserve Freedom s law the moral reading of the American constitution3. He explains that the moral reading proposes that judges, lawyers and citizens should interpret and use the abstract clauses on understanding that they invoke moral principles about political civility and justice4. The moral reading brings political morals into the heart of constitutional law that this is uncertain and controversial, in that respectfore every system of government that makes such principles part of its law must subside whose interpretation and understanding will be authoritative5. In the American agreement judge move over that authority and in his disc, Dworkin disproves the critics that suggest the moral reading of the constitution gives judges the absolute power to impose their own moral convictions on the public6.Democracy substance government by the people7 as seen in Dworkins article but he did point out that in that respect be ii rooms in which democracy can operate. The commencement ceremony is the majoritarian premise8 and the routine is the constitutional conception of democracy9. The majoritarian premise is of the view that political decisions and procedures should be do establish on the privilege of the bulk or the plurality of the citizens provided that they fuck off adequate information and enough time on reflection10.Dworkin rejects the view of the majoritarian premise. This is because purge off though it seems that most people in the United States of America know accepted the majoritarian premise, there be still some who believe that the absolute absolute majority should not al bearings be the last judge11. The reason for this is that there atomic number 18 situations where individual rights need to be protected and the decisions should not be based merely on what the majority want. The premise supposes that it is unfair when the political majority does not al substances get their way12 which is unfair to minorities and individuals.Dworkin looks to a different, better banknote of the regard as of democracy13. This is the constitutional conception of democracy14. This takes on the view that collective decisions should be made by political institutions whose structure, composition and practises treat all members with stir concern and equal respect15. This is done out of concern for the equal positioning of citizens and not out of commitment to the goals of majority rule16.This is one major reason Dworkin repugns in favour of the courts. He believes that an independent body such as the judiciary can make decisions which respect not only the majority but in addition individual citizens.In relation to Dworkin proving that JR improves democracy, he proposes collar jobs that favour the majoritarian premise and he rebuts each of these dividing lines which demonstrates that the majoritarian premise is undemocratic. However, only ii of these arguments will be looked at. The prototypical argument in favour of the majoritarian v iew is liberty. People that atomic number 18 in support of the majority view argue that allowing judges to strike down legislation can be reekd as undemocratic because it infringes on the right to liberty. The right to liberty includes the freedom of the people to govern themselves by electing political officials.Dworkin rebuts this argument in devil forms which ar the statistical collective performance and the communal collective action.17 A collective action is statistical when a group of people do that action as only a matter of individual interest, that is, doing it for their own selfish gains but it leads to a result that favours everyone in the community18. While a collective action is communal when it cannot be reduced to some statistical function of individual action19. This is a matter of individuals acting together consciously to bring about a result.Dworkin believes that if a loss of liberty should exist then the collective action should be communal not statistical. termination of liberty to any individual would be negligible.The communal collective action brings about how an individual voter can identify with the community. The community as a whole must treat an individual with respect and as an equal20. This relates to the concept of moral membership. Moral membership is how an individual should be interact as part of the community as a whole. There are two features of moral membership the first is structural21 which explains that the community must defy a shared culture, history and language. The arcsecond is relational22 which emphasizes on individual rights. As a member of the community every individual must have political rights. If every member has these rights, then everyone should all be treated equally as a member of the community. This also means that people have a part in collective decision do, as well as a station in what happens and they also have independence from it23. Dworkin believes that without these rights then dem ocracy cannot exist.The second argument is community. From the majoritarian view the argument would be that if the view of the majority is overridden then citizens are deprived of the value of participating in communal decision devising. Dworkin rebuts this by ordinateing that citizens can also participate in the political wreak by means of some other ways. One of such ways is the power that is given to the people by the constitution to form non-political communities such as religious, professional and social groups24. Dworkin refers to the first amendments association of protection that prohibits religious discrimination which enhances that power25. The second way is through influence citizens may have more influence over a judicial decision by their contribution to public discussion of the snub than they would over legislative decisions just through voting or even a referendum26.Dworkin reaches the conclusion that there is no loss in democracy if the final say is left to jud ges, therefore he believes that Judicial review can improve democracy.WALDRONS THEORYWaldron takes on a different view regarding Judicial Review and democracy. In his article THE CORE OF THE CASE AGAINST juridic follow27Waldron begins by saying JR is just the subjection of the legislature to the rule of law and then he goes further by drawing a tuberosity between strong and weak JR28. Strong JR is a system whereby the courts have the authority to override a statute in a crabbed case or modify the statute to make its application correct with individual rights29. While weak JR is a system whereby the courts do not have as much authority the courts may scrutinize legislation for its conformity to individual rights but they may not decline to apply it30. Waldrons focalization is on societies that have strong JR.In making his argument against JR, Waldron makes four assumptions about a fiat. In this society there is a functioning democratic system, a set of judicial institutions tha t is functional, a belief and respect for individual and minority rights and disagreement over the meaning of rights among members of the society31. It is the disagreement over rights that Waldron lays emphasis on. In a society, people will have disagreement about the compatibility of the legislation and rights and when these disagreements exist there necessarily to be an ultimate authority that can settle the disagreements about rights.Waldron looks to two sort of reasons that need to be taken into account in evaluating the decision-procedure for subsiding disagreement. These are the out observe think reason and the handle related reason32. The process related reason33 are reasons for insisting that a person makes a decision that stands independently of the considerations about the appropriate outcome34. It is all about the process and the way the outcome is reached. In politics, the most familiar process-related reasons are those based on political equality and the democratic right to vote, the right to have ones share counted even when others disagree with what one says35. Waldron continues his process related reason argument by saying that the legislature gives each person the greatest say possible which is compatible with an equal say for each of the others36. He believes that typical system satisfies the demand for political equality which is equal voice and equal decisional authority37. Waldron believes that this is preferable to the outcome related reasons.Outcome related reasons38 are reasons for making the decision procedure in a way that will reassure the appropriate outcome39. It sharpenes on which institution brings about the best outcome.Waldron gives three reasons that favour JR producing a better outcome and he gives his reply to each argument. The first is the orientation to a particular case. The issue of rights are presented to the judges in the form of flesh -and-blood individual situations40. Since the courts are dealing with indiv idual rights it helps to see how an individual is affected by a piece of legislation41. Waldrons reply to this is by the time these cases reach the graduate(prenominal)est court almost all trace of the captain flesh-and-blood right holders42 has vanished43. The judges tend to view these cases in an abstract way and the courts address these issue in a more general way44.The second argument is the orientation to a text in the handbill of rights45. Waldrons solvent to this is that a legal right that finds protection in a Bill of Rights finds it under the supports of some official form of words in which the render of the Bill are articulated46. The written creation of the Bill of rights tend to gain a rigid word based formalism which the courts may get a line to interpret in an obsessive elan47. Waldron believes that this can be avoided in a system of legislative supremacy because legislators can take on the issue for themselves without reference to the Bill of Rights formulatio ns48. He also makes one final point which is judicial reasoning may be distorted by an oversight in the bill of rights49. He gives a scenario of a disagreement between positive (socioeconomic) rights and negative(liberty) rights which may alter Judges understanding of the rights included50. They may give more weight to positive rights than negative rights which may lead to Judges striking down statutes that are trying to make up for the rights that failed to file away in the formulation of the bill of rights51.The third argument that Waldron gives his response to is stating reasons52. He says that Courts are concerned with the genuineness of decision making therefore they focus their reason giving on facts that show that they are legally countenance by constitution, statute, or precedent53. This counts heavily against the court in the outcome related argument about JR over legislation54. The courts are distracted by the legitimacy issue they pursue and as a result they lose int roduce of the heart of the matter55, whereas the fantan go directly to it56 and their reasons are given in debates and are published in Hansard or Congressional record57. He gives the compositors case of Roe v Wade58 whereby none of the judges in the supreme court paid attention to the plaintiffs position that was being discussed59.Waldron reaches the conclusion that the legislature is a better process than the judiciary because it is a legitimate and fair way of deciding disagreements over rights. The Judiciary being a non-democratic institution does not uphold democracy.MY OPINIONIn a democratic system rights that are upheld can be found in the Bill of Rights. For the sake of the question it is the British bill of rights that will be considered. This brings up the issue of JR. Judicial Review gives the court the authority to scrutinize statute or in some cases override statutes if it is incompatible with the bill of rights. One matter to remember is that the court is a non-democ ratic institution. Looking at both sides of the argument they each carry weight Dworkin is of the view that JR improves democracy while Waldron is of the view that the parliament is better suited to improve democracy.From Dworkins argument I mum the difference between the majoritarian premise and the constitutional conception of democracy. In his book Dworkin thought the constitutional conception of democracy was a better way for democracy to operate. The constitutional conception of democracy is a good persuasion which upholds individual rights. Judges can be seen as independent bodies that can make decisions and interpret the law in a consistent manner unlike the government. In regards to governmental bodies in Britain, it can be seen that the executive and the parliament have some form of connection. It is possible that the executives may wield pressure on parliament seeing as how they make the parliament accountable. This could create inconsistencies.Dworkins theory relates d emocracy to rights, according to him without rights there is no democracy. As an individual in a community you need to have the sense of moral membership and as such the community treats you with respect and as an equal which means that all voices are heard and everyone can in full participate in self-government which is a political right. In candor to gain equal membership in a community would be impossible.Waldron also brought up some compelling arguments against strong JR. His focus is on the right-based JR he believes that the process of JR is unsuitable for a democratic society whose main problem is the disagreement over rights. He believes that the disagreement can be resolved by adopting procedures that respect the voices and opinions of individuals whose rights are at stake and this procedure is done by the legislation. I agree with most of Waldrons theory but I still question some of what he proposes.Waldron explains the process related reasons and outcome related reasons as considerations that are separate but there are certain circumstances whereby the process and outcome work together as one. If the outcome is a bad one, then that means the process reasons that gave that outcome authority are invalid.It can be seen in Waldrons article he refers to process-related reasons including fair elections, majority decisions and citizen participation. I think this argument is biased in favour of the legislature, this is because all the processes he mentions are of course associated with the legislature they are legislative practices. Waldron believes that JR is not a good final decision procedure because it does not make proper use of these practices. These practices are meant for legislative procedures. This is not a good argument against JR because the courts have their own process related considerations which are hearing out the cases of individuals who are represent by lawyers, looking to precedents, making decisions and if the individual is still un happy with the outcome, there is always a chance for an appeal. Just because the process is different does not mean it is not legitimate.He gave the argument of courts getting distracted because they adjudicate legitimacy. Judges interpret the laws to the best it can be and apply it to the cases of individuals. They look for legitimate reasons because they are trying to protect individual rights in accordance with law.I agree with his outcome related argument that refers to the orientation of the bill of rights. I also accept that, that much power should not be left to the courts without a body to question them seeing as they are unelected, but in Britain there is a hierarchy of courts and it can be seen that various cases are taken from the magistrate court to the crown court, sometimes high court and finally to the supreme court. I would like to think that the judges in these different courts check and balance each other out. This is because different courts usually disagree wit h some of the decisions made.In addition to this, I would also like to make a point regarding the magistrate courts. In England, the judges in the magistrate are made up of people that come from the community, since these people come from the community, they can relate to the issues of majority and minority and that creates a chance for a well-rounded decision.In conclusion I am of the view that Judges should be given the power to scrutinize, not override legislation if it conflicts with rights in the bill of rights.1A Weale, Democracy (2nd edn, Basingstoke, Palgrave, 2007) p142 Ronald Dworkin, FREEDOMS law of nature THE MORAL READING OF THE AMERICAN CONSTITUTION, (Oxford University Press, 1996) p73 Ronald Dworkin, FREEDOMS LAW THE MORAL READING OF THE AMERICAN CONSTITUTION, (Oxford University Press, 1996)4 Ibid p25 Ibid p26 Ibid p27 Ibid p158 Ibid p15-169 Ibid p15-1610 Ibid p1611 Ibid p1612 Ibid p1713 Ibid p1714 Ibid p1715 Ibid p1716 Ibid p1717 Ibid p1918 Ibid p1919 Ibid p2020 Ibi d p1721 Ibid p2422 Ibid p2423 Ibid p2424 Ibid p2925 Ibid p2926 Ibid p3027 Jeremy Waldron, THE CORE OF THE CASE AGAINST JUDICIAL refreshen (2006) 115 Yale L J 134628 Jeremy Waldron, THE CORE OF THE CASE AGAINST JUDICIAL REVIEW (2006) 115 Yale L J 1346 p529 Ibid p530 Ibid p531 Ibid p732 Ibid p1433 Ibid p1434 Ibid p1435 Ibid p1536 Ibid p2337 Ibid p2338 Ibid p1539 Ibid p1540 Ibid p1841 Ibid p1842 Ibid p1843 Ibid p1844 Ibid p1845 Ibid p1946 Ibid p1947 Ibid p1948 Ibid p1949 Ibid p1950 Ibid p2051 Ibid p2052 Ibid p2053 Ibid p2154 Ibid p2155 Ibid p2156 Ibid p2157 Ibid p2058 Roe v. Wade, 410 U.S. 113 (1973)59 Ibid p21