Constitutional Judicial Review and Democratic Legitimacy: Non-Democratic Courts v Non-Democratic Legislatures

This research is supported by the Leverhulme Trust Research Fellowship (2024-2025), and will be published as a research monograph with Hart Publishing (Constitutional Theory Series)

This research project offers a new answer to one of the most difficult questions in constitutional theory: should courts be allowed to abolish primary legislation? 

The research will present a theory of judicial review of legislation that acknowledges the non-democratic nature of the judiciary – but also that of the legislature. This theory posits that even if democracy is understood as ‘the rule of the majority’ – as many critics of judicial review of legislation claim, the counter-majoritarian argument, according to which courts do not represent the majority will, can’t be used as an argument against judicial review of legislation. This is so because the legislature also does not and can’t reflect the majority will in any meaningful way. The theory then suggests that the legitimacy of judicial review relies not on democratic legitimacy, as far as democracy is understood as the rule of the majority, but rather on the need to prevent any state organ from having monopoly on the legislative power thus to prevent unrestricted legislative power. 

The main arguments that will be explored are: (1) the ‘rule of the majority’ should be understood as the rule of an autonomous, well-informed, rational majority; (2) if voters are not sufficiently autonomous, well-informed, and rational, then the ‘rule of the majority’ can’t democratically legitimise Parliaments, laws, and public policies; (3) if the ‘rule of the majority’ is a necessary component of the definition of democracy, then democracy does not exist and had never existed in any state; (4) if the ‘rule of the majority’ is a necessary component of the definition of democracy, then democracy can’t exist in any state – for more than 20 reasons that are explored in our research; (4) current arguments against judicial review of legislation are misguided, mostly because they wrongly assume that the legislature reflects the majority will; (5) current justifications for judicial review of legislation are only partly successful because they also assume the democratic legitimacy of the legislative process; (6) unrestricted legislative power poses a risk to human rights and liberal principles, because ‘power tends to corrupt and absolute power corrupts absolutely’; and (7) the judicial decision-making process and the independence of the judiciary make the non-democratic judiciary the most suitable state organ for limiting the legislative powers of the non-democratic legislature.

Yossi Nehushtan

School of Law, Keele university, UK

LLB (Striks Law School); LLM (the Hebrew University); BCL, MPhil, DPhil (Oxford University). Currently a Professor of Law and Philosophy at Keele University, and the General Editor of the Keele Law Review. Areas of research are legal theory, political theory, public law, human rights law, and law and religion.

Beatriz Flügel Assad

LLB, the Pontifícia Universidade Católica do Paraná (PUCPR), Brazil. Graduated with highest honours in Law, receiving the Marcelino Champagnat Award for the highest academic performance in her cohort.

LLM, the Pontifícia Universidade Católica do Paraná (PUCPR), Brazil, with a full scholarship. Deputy General Editor of the Keele Law Review.

DPhil candidate, Oxford University, and a Graduate Research Student at the Bonavero Institute of Human Rights, Oxford University.