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Published: Fri, 02 Feb 2018

Constitutional Democratic Democracy

In his “Freedom’s Law: The Moral Reading of the American Constitution”, Ronald Dworkin has once again show that he is a firm defender of judicial review of constitutional rights. In this work, he made a new version of that defense believing that the idea which informs constitutionalism – the idea that government should be bound to certain rights by the very authority that structures and empowers its procedures. He also believes that this commitment should be enforced by the courts proposing that this idea is probably the most important contribution to political theory.

Rights and democracy

Ronald Dworkin says that a constitutional principle enforced by independent judges is not undemocratic and there is no trade-off between rights and democracy. He believes that a political system which allows ordinary majorities to make decisions about rights should not be regarded as genuinely democratic; any version of democracy that requires deference to temporary majorities on matters of individual right is brutal and alien, any other nations with firm democratic traditions now reject it as fake. In addition, Dworkin postulated that “I don’t mean that there is no democracy unless judges have the power to set aside what a majority thinks is right and just. Many institutional arrangements are compatible with the moral reading, including some, that do not give judges the power they have in the American structure. But none of these varied arrangements is in principle more democratic than others. Democracy does not insist on judges having the last word, but it does not insist that they must not have it”.

It should be asked whether there is any loss to democracy when the elected legislature of a society is subjected to a power of this kind vested in the courts. Dworkin thinks there is not. For the community is now more democratic than it would have been if the anti-democratic statute had been allowed to stand. Of course, if it is assumed that the court’s decision was wrong, then none of this is true. The possibility of error is symmetrical. It follows that democratic constitutional theory ought to be oriented primarily to results. In every society there will be questions whether enacted legislation conflicts with the fundamental principles of democracy. These questions should be assigned to whatever institution is likely to answer them correctly.

In some countries, this may be the legislature. But often there is reason to think the legislature is not the safest vehicle for protecting the rights associated with democracy. We should not be deterred, says Dworkin, by the fact that courts are not constituted in a way that makes them democratically accountable. Accountability does not matter, he says. The crucial thing is that courts are reliable at making good decisions about democracy. That is all a partisan of democracy should care about. If it is noticed, it can be ssen how it turns on an elision between a decision about democracy and a decision made by democratic means. All that matters is that the decision be right, from a democratic point of view. In the case of a decision about democracy, however, he thinks the distinction collapses.

The same argument may be put more concisely. If a question comes up for political decision in a community, a member of the community might reasonably ask to participate in it on equal terms with his fellow citizens. Now there may be all sorts of reasons for denying his request, but it would surely be absurd to deny it on the ground that the question was one about democracy. That would be absurd because it would fail to address his concern that a question about democracy, as much as any political question, should be settled by democratic means. Dworkin’s claim is to create “a level playing field on which the contest between different institutional structures for interpreting the democratic conditions must take place”. The playing field is not level. There is something lost, from a democratic point of view, when an unelected and unaccountable individual or institution makes a binding decision about what democracy requires. If it makes the right decision, then–sure–there is something democratic to set against that loss; but that is not the same as there being no loss in the first place. Process may not be all that there is to democratic decision-making; but we should not say that, since the decision is about democracy, process is therefore irrelevant.

Waldron, on the other hand, asks if judges have the authority to strike down legislation when they are convinced that it violates individual rights? In many countries like the United States, they do. Even if the decision is eventually overturned by an amendment to the state constitution, the plaintiffs and their supporters can feel that at least the issue of rights is now being confronted directly. But, they say, these costs are often exaggerated or mischaracterized. The democratic process is hardly perfect and, in any case, the democratic objection is itself problematic when what is at stake is the tyranny of the majority. It can be argued that an occasional bad outcome is the price of a practice that has given several decisions like Lawrence, Roe, and Brown to uphold society’s commitment to individual rights in the face of prejudiced majorities. One cannot sensibly discuss the question whether judicial activism should play a part in the judicial process without first attempting to describe what is meant by that rather imprecise expression. This necessarily involves a freedom to depart from existing authority however eminent and long standing.

The question whether, and if so to what extent, judicial activism should play a part in the judicial process depends of course on the nature and purpose of that process. The primary purpose of any litigation is to resolve a controversy between parties. In Trigwell’s case there were arguments in favour of the view that the rule in Searle v Wallbank, that a land owner was not under a duty of care to users of the highway to prevent animals (not themselves dangerous) from straying on to the highway, was no longer appropriate in modern conditions, particularly having regard to the change created by modern roads and the fast moving traffic that those roads carry. If that rule was abolished by statute (as it has since been) the land owner would be warned that he should protect himself by taking out insurance against third party liability. An example is Brodie where the majority of the court, departing from settled authority, held that local government bodies were liable for non feasance as well as for misfeasance in the maintenance of highways. That will surely depend, amongst other things on the financial consequences of the decision. Might it mean, for example that Councils which spent large sums in compliance with this decision would be unable to find the money to perform other essential functions? Similar criticisms may be made of the decision in Dietrich. The court is not able to conduct enquiries and undertake research into the consequences of its reforming decision in the way that governments may do before enacting legislation. As Sir Ninian Stephen said, “the judges are a primitive and handicapped legislature”.

Additional consideration

Another example is Cole v Whitfield; in that case there was the additional consideration that the authorities were so unsatisfactory that the court felt it necessary to enunciate a new and clearer principle. Also there are cases which are not covered by authority or clear legal principle. Marion’s case, which involved the question whether the court could order the sterilisation of an intellectually disabled child, was such a case. Here the court must obviously formulate the principle that it considers would be fair and just in the circumstances. He was of course speaking of legal principles and I would add that the development might be by analogy to such principles. One element of justice is certainty. To answer this objection it may be said that what is meant is the values that ought to be accepted by society but there are often sharp divisions of opinion in society on that question as well. Mabo (No 2) was an obvious case in which the values which activated the judges were not universally shared. The rules laid down in that case with respect to aboriginal title and its extinguishment were not predictable. The extent to which they have benefited the indigenous people remains debateable, as is the question of the effect of the decision on society generally.

In a recent paper, Spigelman C J referred to the contrast drawn by Francis Bacon between two schools of philosophy, the empiricists and the rationalists. Bacon said “empiricists are like ants, they collect and put to use; but rationalists are like spiders, they spin threads out of themselves”. The same metaphor may be applied to judges who follow the traditional method of considering existing law and building upon it, and judicial activists who give effect to their own notions of policy. A judicial activist, may adapt the words of King HenryV and exhort his brothers and sisters to imitate the action of the spider but the judge who remembers that the law is developed step by step, by putting to use existing legal principles, will prefer the admonition of scripture: “go to the ant consider her ways and be wise.”


  • (1868) L.R.3H.L. 330
  • (1988) 165 C.L.R. 360
  • (Marion’s Case) (1992) 175 C.L.R, 218
  • [1947] A.C.341
  • 78 A.L.J. 29, 49
  • Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 C.L.R. 479
  • Brennan C.J. in Dietrich v The Queen note 5 supra at 320-1
  • Brodie v Singleton Shire Council (2001) 206 C.L.R. 512
  • Burnie Port Authority v General Jones Pty Ltd (1994) 179 C.L.R. 520
  • Cited in Sturgess and Chubb. Judging the World (1988) at p358
  • David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 C.L.R. 353
  • Dietrich v the Queen (1992) 177 C.L.R. 292, 329
  • Dietrich v The Queen (1992) 177C.L.R. 292
  • Dixon, Concerning Judicial Method (1955) 29 A.L.J 468, at 472
  • Henry V, Act 3, Sc.1
  • Hon J.J. Spigelman A.C., The truth can cost too much: The principle of a fair trial (2004)
  • Lord Reid, “The Judge as Lawmaker” (1972) 12JSPTL 22
  • Mabo v Queensland (No 2) (1992) 175 C.L.R. 1
  • Myers v Director of Public Prosecutions [1965] A.C. 1001 at 1021-2
  • Proverbs Ch.6, v.6
  • Secretary, Department of Health and Community Services v J.W.B. and S.M.B
  • Shaw v Director of Public Prosecutions [1962] A.C 220, 275
  • State Government Insurance Commission v Trigwell (1979) 142, C L.R.617

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