Proceduralism, Judicial Review and the Refusal of Royal Assent

Oxford Journal of Legal Studies 33 (2):379-400 (2013)
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
Keywords judicial review  epistemic democracy  legitimacy  proceduralism
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DOI 10.1093/ojls/gqt003
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