Proceduralism, Judicial Review and the Refusal of Royal Assent

Oxford Journal of Legal Studies 33 (2):379-400 (2013)
  Copy   BIBTEX

Abstract

This article provides an exploration of the relationships between a procedural account of epistemic democracy, illegitimate laws and judicial review. I first explain how there can be illegitimate laws within a procedural account of democracy. I argue that even if democratic legitimacy is conceived procedurally, it does not imply that democracy could legitimately undermine itself or adopt grossly unjust laws. I then turn to the legitimacy of judicial review with regard to these illegitimate laws. I maintain that courts do not have a moral privilege on the overthrow of illegitimate laws; in this respect the refusal of royal assent has the same status. I also explain how the rule of the clear mistake fails to restrict the action of courts to only illegitimate laws. Finally, I argue for the positive epistemic inputs of weak judicial review

Links

PhilArchive



    Upload a copy of this work     Papers currently archived: 92,150

External links

Setup an account with your affiliations in order to access resources via your University's proxy server

Through your library

Similar books and articles

Between Common Law Constitutionalism and Procedural Democracy.Tamas Gyorfi - 2013 - Oxford Journal of Legal Studies 33 (2):317-338.
Democratic legitimacy and proceduralist social epistemology.Fabienne Peter - 2007 - Politics, Philosophy and Economics 6 (3):329-353.
Pragmatism, democracy, and judicial review: Rejoinder to Posner.Ilya Somin - 2004 - Critical Review: A Journal of Politics and Society 16 (4):473-481.

Analytics

Added to PP
2013-08-29

Downloads
41 (#389,665)

6 months
8 (#366,578)

Historical graph of downloads
How can I increase my downloads?

Author's Profile

Yann Allard-Tremblay
McGill University

Citations of this work

No citations found.

Add more citations

References found in this work

No references found.

Add more references