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. 

Nick Barber joined the Oxford Law Faculty in 1998 as a Fixed Term Fellow at Brasenose before moving to a tenured Fellowship at Trinity College in 2000.   In 2013 he was appointed University Lecturer in Constitutional Law and in 2017 he was appointed Professor of Constitutional Law and Theory.  In 2012 and 2013 he was a visiting Professor at Renmin University, China.  From 2019-23 he was Associate Dean (Research), and from 2025-2026 he served as Senior Proctor.  In 2023 he delivered the keynote address at the Dutch Association of Constitutional Law.  In 2024 he was the James Meralls Visiting Fellow at Melbourne University, and in 2025 he gave the Sir Richard Ground Lecture in the Turks and Caicos.  

From 2026 to 2029 he will hold a Leverhulme Major Research Fellowship, working on 'Reason and Emotion in the Formation of Constitutional Identity'. 

He has lectured extensively on constitutional law and theory in many countries.  He has published many papers in these areas, and his book - The Constitutional State – was published in 2011, and has been widely reviewed.  His second book, The Principles of Constitutionalism, was published by Oxford University Press in summer 2018.  The United Kingdom Constitution: An Introduction was published in the Clarendon Law Series in late 2021.  A Chinese edition of this book was published in 2026, and a second English edition will be published in 2027.  A third book on constitutional theory, The State and its People, will be published by Oxford University Press in 2027, and will look at the roles of reason and emotion in the construction of constitutional identity.  Both The American Journal of Jurisprudence and The Jerusalem Review of Legal Studies have published collections of essays on his work.  

He was founder editor of the United Kingdom Constitutional Law Blog, and he was a co-author, with Jeff King and Tom Hickman, of the blog post that sparked the litigation in Miller, a post which first advanced the arguments eventually adopted by the High Court and Supreme Court.  

Alongside Richard Ekins and Timothy Endicott, he is co-director of The Programme for the Foundations of Law and Constitutional Government.   

Başak Çalı is professor of international law and head of research at the Bonavero Institute of Human Rights. Previously, she was professor of international law and founding director of the  Centre for Fundamental Rights at the Hertie School, Berlin. She holds a permanent visiting professorship from the I-Courts Centre for Excellence at the University of Copenhagen and is a fellow the University of Essex Human Rights Centre and the Hertie School. She has held visiting professorships in Ankara, Oslo, Paris, and Natolin and serves on the board of a number of journals.

Her expertise concerns international law and human rights. She has published widely in the fields of authority of international law, standards of review in international law, the relationship between international law and domestic law, European human rights law, UN human rights law and comparative international human rights law. She has pioneered the study of bad faith violations of human rights law (Wisconsin International Law Journal, 2018), and is the author of 'Authority of International Law: Obedience, Respect and Rebuttal' (OUP 2015), editor of International Law for International Relations (OUP, 2010), co- editor of Legalisation of Human Rights: Multidisciplinary Perspectives on Human Rights and Human Rights Law (Routledge 2006), Migration and the European Convention on Human Rights (OUP, 2021) and Secondary Rules of Primary Importance: Standards of Review, Causality, Evidence and Attribution before International Courts and Tribunals (OUP, 2022). Her forthcoming co-authored manuscript Leading Cases in UN Human Rights Law will be published by OUP in 2026.

She is the principle investigator of ‘Deep Impact through Soft Jurisprudence? The Contribution of United Nations Treaty Body Case Law to the Development of International Human Rights Law’ (German Science Council 2023-2026), and principle investigator of the 7-year German Science Council-funded cluster of excellence  ‘Transforming Human Rights’ based at the FAU Research Center for Human Rights Erlangen-Nürnberg. She has been the principal investigator of research grants funded by the Volkswagen Foundation, the Economic and Social Research Council and the British Academy, amongst others.

As a legal practitioner, Başak has acted as an expert on the European Convention on Human Rights since 2002 and has trained judges, prosecutors, lawyers and police officers in the implementation of the European Convention on Human Rights across the Council of Europe. She has acted as a legal representative or advisor in several cases before the European Court of Human Rights. She is the co-founder and former chair of the European Implementation Network, Europe’s leading civil society organization that advocates for the full and effective implementation of human rights judgments.