Judicial Review Concepts and Debates

The practice of courts reviewing laws and striking them down if they violate individual rights, federalism principles, or separation of powers principles.

The practice of courts reviewing laws for violations of individual rights.

A provision in the Canadian Charter of Rights and Freedoms that allows Parliament or a provincial legislature to override a court's declaration that a law violates a Charter right.

The concept that courts are independent and free from political control or influence.

An argument in favor of judicial review that suggests that courts are better equipped than legislatures to protect individual rights.

An argument against judicial review that emphasizes the democratic principle of majority rule, where the legislature should have ultimate power.

The idea that the courts and legislatures often have different perspectives on the meaning and scope of rights.

The act of the legislature overriding a court's declaration that a law violates a Charter right, which may result in the legislature misrepresenting its position on the importance of rights.

A legislative process where a court acts like a senate, making final decisions, resembles judicial review but raises concerns about empowering unelected bodies.

Judicial review is based on specific cases, not abstract theories.

Judicial review can be conducted by ordinary courts or specialized constitutional courts.

Judges in regular courts may be less focused on moral arguments due to their usual workload and priorities.

Specialized constitutional courts might prioritize their own doctrines and precedents, potentially hindering impartial rights-based reasoning.

Assumptions set the context for a focused argument about judicial review, separating core cases from less typical ones.

Ex ante advisory opinions are given in limited circumstances, like when the legislature asks the court for advice on legal questions.

Ex ante advisory opinions can be used to gain insight into possible legal issues before making a law.

A decision-making process must be designed to resolve disputes rather than creating new ones. It should settle disagreements instead of reigniting conflict.

Despite disagreements, the decision-making process itself needs to be accepted as legitimate by everyone in society.

When people disagree about fundamental rights or values, the process for making those decisions must be accepted as legitimate and fair by everyone in society.

The presence of disagreements might be pervasive, but it doesn't mean we can ignore the need for a legitimate decision-making process.

We can't just choose outcomes and bypass the issue of legitimacy; we need a process for deciding the outcome as well.

The legitimacy of the decision-making process needs to be addressed whether or not we anticipate widespread disagreement.

Disagreements about the nature and extent of rights. These disagreements can occur at various levels, including philosophical debates, practical application to specific laws, and individual cases.

Major issues of political philosophy that have significant consequences for society and often arise from different interpretations of fundamental rights.

Central applications or core elements of a right, often the focus of public debate and disagreement.

The misconception that disagreement about rights only arises in unusual or uncommon scenarios, while the core of the right is universally accepted.

The idea that a strong commitment to rights can exist even when there are disagreements about specific applications of those rights.

The process of interpreting and applying general principles of rights to specific laws or cases, often leading to disagreements.

Central topics of moral and political debate in many societies, reflecting disagreements about core values and principles.

A specific example of a watershed issue, where individuals have differing perspectives on the right to abortion.

A situation where the legislature, due to internal pressures, might not prioritize or even consider establishing individual rights.

The idea that individuals' judgments can be influenced by factors like self-interest, leading to biased decisions.

The argument that a system where decision-makers are not personally affected by the outcome might lead to fairer judgments.

The idea that a legislature might not be the most reliable protector of individual rights due to the pressure of popular opinion.

The argument that even judicial bodies can be swayed by popular sentiment, potentially leading to neglect of rights.

The suggestion that courts, in times of crisis, might be more inclined to prioritize security over individual rights.

The argument that individuals unconcerned by the decision might not fully consider the implications for others.

The idea that individuals who will be directly affected by the decision might be more motivated to ensure fair outcomes.

In decision-making about rights, while outcome-related reasons are crucial (aiming to avoid rights violations), other reasons also play a role, such as procedural fairness or democratic participation.

The normative character of reasons refers to their moral weight or justification. This plays a key role in understanding how different reasons relate to each other in rights-based judgment.

While outcome-related reasons are consequentialist, they also have a deontological aspect because they aim to prevent rights violations, which are inherently wrong regardless of consequences.

Process-related reasons, such as those emphasizing participation, often have a deontological urgency. These are not mere consequences, but rather expressions of individual worth and equal membership in the community.

Reasons of different kinds, such as outcome-related and process-related, are not independent but interact. Understanding their normative character helps determine their weight and how they influence each other.

The 'designers' of decision procedures are indirectly responsible for potential rights violations, but still have a duty to take care. This indirect responsibility stems from the rights-based framework.

Dworkin mistakenly views participatory reasons as merely 'consequentialist' when they are actually deontological. They affirm individual worth and membership, not just lead to positive outcomes.

The right to participation is not just an outcome-driven decision, but a deontological principle that affirms individual worth within the community. It goes beyond mere consequences.