(accepted 3 february 2003) - humanities degree

AILEEN KAVANAGH

PARTICIPATION AND JUDICIAL REVIEW:A REPLY TO JEREMY WALDRON �

(Accepted 3 February 2003)

ABSTRACT. This article challenges Jeremy Waldron’s arguments in favour ofparticipatory majoritarianism, and against constitutional judicial review. First, Iconsider and critique Waldron’s arguments against instrumentalist justificationsof political authority. My central claim is that although the right to democraticparticipation is intrinsically valuable, it does not displace the central importanceof the ‘instrumental condition of good government’: political decision-makingmechanisms should be chosen (primarily) on the basis of their conduciveness togood results. I then turn to an examination of Waldron’s claim that individualsare entitled to participate in decisions which affect their lives. Furthermore, Irespond to his claim that justifications of constitutional judicial review rely onan objectionable distrust of democratic politics, and is inconsistent with a viewof the person as a morally responsible, autonomous agent. Finally, I seek to showthat judicial review can itself become a valuable channel of political participa-tion, especially for those who are marginalized and disempowered in the normalpolitical process.

INTRODUCTION

Jeremy Waldron has been one of the most persistent and influentialopponents of American-style judicial review in recent political andlegal theory. His case against judicial review (and in favour of unlim-ited participatory democracy) hinges on the fact that we disagreeabout the moral principles that should guide our political system.1

According to Waldron, the only acceptable way of respondingto this fact, while simultaneously ensuring respect for citizens’

� I wish to thank Cecile Fabre, Joseph Raz and Adam Swift for extremelyhelpful comments on earlier drafts of this paper, and Margit Cohn and twoanonymous reviewers for helpful comments on the final draft.

1 He refers to this fact of disagreement as the ‘circumstance of politics’,see Jeremy Waldron, Law and Disagreement (Oxford: Clarendon Press, 1999),pp. 101–103, 246–247 (hereinafter Waldron, Law and Disagreement).

Law and Philosophy 22: 451–486, 2003.© 2003 Kluwer Academic Publishers. Printed in the Netherlands.

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differing judgements about justice, is to adopt a participatory-majoritarian method of political decision-making. Individuals areentitled to participate in decisions affecting their lives, and thatincludes decisions about the fundamental principles on which thepolitical life of their country is based.2

Waldron’s central objection to judicial review is that it denies(or at least curtails) citizens’ “right to democratic participation”,namely, the right to “participate on equal terms in social decisionson issues of high principle and not just interstitial matters of socialand economic policy”.3 For Waldron, this is nothing less than the“right of rights”, so-called because its exercise “seems peculiarlyappropriate in situations where reasonable right-bearers disagreeabout what rights they have”.4 By taking decisions about rights awayfrom participatory-majoritarian institutions, and placing them in thehands of the courts, judicial review involves an unjustifiable “disem-powerment of ordinary citizens on matters of the highest moral andpolitical importance”.5

Three aspects of Waldron’s account are worth noting at the outset.First, not only are his arguments based in democratic values, theyare also ‘right-based’.6 By this, he means that his justification ofparticipatory majoritarianism is grounded in values which informour belief in the importance of rights, most notably the values ofautonomy and responsibility. So, Waldron is not simply a demo-cratic theorist arguing against a Bill of Rights. He is also a theoristof rights, arguing that if we believe that rights are important, weshould have grave misgivings about entrenching rights in a Bill ofRights, enforced by an unelected judiciary. Second, his responseto the fact of disagreement outlined above is procedural, i.e., it isprocess-orientated, rather than result-oriented.7 Waldron argues thata result-driven approach (whereby the decision-making mechanism

2 Ibid., 212.3 Ibid., 213.4 Ibid., 232.5 Jeremy Waldron, “A Right-Based Critique of Constitutional Rights”, Oxford

Journal of Legal Studies 13 (1993), 45 (hereinafter Waldron, “Right-BasedCritique”).

6 “Rights-Based Critique”, p. 18ff; Law and Disagreement, pp. 214–217, 217–221, 223, 249–252.

7 Law and Disagreement, pp. 239–243.

PARTICIPATION AND JUDICIAL REVIEW 453

most likely to deliver sound results is chosen) is unavailable to us,because we disagree about what those results should be. The onlyalternative, according to Waldron, is an account of political authoritybased solely on good procedures. Finally, Waldron’s argument isprocedurally egalitarian. It stresses that everyone has a right to‘participate on equal terms’:8 citizens should have an equal rightto have their voice counted in political decision-making procedures.Note that procedural egalitarianism is different from equal consider-ation of people’s interests.9 The latter is result-orientated, because itrequires institutions that are most likely to respect people’s interestsequally. It refers to the output of political decisions, rather than theinput and Waldron’s focus is on the latter.

This essay aims to cast doubt on Waldron’s main lines of argu-ment. First, I challenge Waldron’s claim that ‘giving people asay’ in the political decision-making of majoritarian institutions ismore important than the outcomes of that decision-making process.Secondly, I consider and critique his general arguments againstinstrumentalist justifications of political authority. I then turn to anexamination of his claim that individuals are entitled to participatein the decisions which affect their lives. Finally, I respond to hisclaim that justifications of constitutional judicial review rely on anobjectionable distrust of democratic politics of a kind that is peculi-arly inappropriate for rights-theorists. In my concluding comments,I take Waldron’s lead in considering some supportive connectionsbetween rights-thinking and democracy, but attempt to show thatthese connections are strengthened when rights are enshrined inBills of Rights, rather than left to the exclusive control of major-itarian procedures. In particular, I seek to show that judicial reviewcan itself become a valuable channel of political participation, whichcan supplement and feed into participation in the normal politicalprocess.

Two clarificatory comments are in order before I begin. Thefirst concerns the scope of judicial decision-making under consti-

8 Ibid., 213.9 For the distinction between the procedural equality and the principle of equal

consideration, see Charles Beitz, “Procedural Equality in Democratic Theory: APreliminary Examination”, in Roland Pennock and John Chapman (eds.), NomosXXV: Liberal Democracy (New York: New York University Press, 1983), p. 71.

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tutional judicial review. While there is a sense in which the court’sauthority under judicial review is superior to that of the legislature(i.e., because the courts can strike down legislation enacted byparliament), judicial authority relates to a more limited range ofdecisions. So, in political systems which possess American-stylejudicial review, most political decisions, including important policy-making issues, are left to the democratic process, accountable tothe citizen-body. Nor is it even the case that all matters relatedto constitutional rights are allocated to the courts under judicialreview. Much of the detailed regulation of rights is carried out bythe legislature in the course of their policy-making decisions, notall of which will be in response to judicial decisions. So, we areconsidering a small and special class of political decisions, of whichonly some are assigned to the courts.10 This is not to deny thatthis class can nonetheless include some very important politicaldecisions. Nor is it to deny that it can cover a wide-ranging subjectmatter. However, it highlights the fact that unlike, say, democracy,monarchy or aristocracy, judicial review in the form we are consid-ering here, is not a complete theory of political authority. It is adecision-making procedure designed to deal with a limited range ofissues. As such, judicial review should not be posed as an alternativeto democratic government, but rather (if at all) as one element withinthat government.11

This leads to the second clarification, concerning the relation-ship between democracy and judicial review. The fact that judicialreview is not a complete theory of political authority means that thequestion raised by judicial review is not an all-or-nothing matterof whether we favour democratic rule or not. It is a question of

10 This point is also made in Ronald Dworkin, A Matter of Principle(Cambridge, Mass.: Harvard University Press, 1985), p. 27; It is criticised by JohnFinnis, “A Bill of Rights for Britain? The Moral of Contemporary Jurisprudence”,Proceedings of the British Academy (1985), p. 307.

11 Waldron seems to view judicial review as a complete theory of authority.He sees participatory majoritarianism and monarchy as alternatives to what hecalls ‘judicial aristocracy’. He describes the latter as a political system where‘the final decision is assigned to the members of a Supreme Court’, see Law andDisagreement, 248; Albert Weale similarly contrasts democracy and adjudicationas alternative forms of government, see Albert Weale, Democracy (London: TheMacmillan Press, 1999), p. 48.


the extent and scope of majoritarian decision-making, i.e., whetherdemocratic decision-making should be extended to all decisionsmade in the community, or whether there is a case for restricting itsscope in matters related to constitutional rights.12 It is fully acceptedhere that for democratic government to exist, there must at least bean electoral mechanism in place which allows citizens to influencethe choice of legislation by participating periodically in the choiceof legislators. No system which debars citizens from playing a partin the decision-making process can be deemed democratic, and noconception of democracy that excludes such a role is tenable. Butthe exact kind or degree of participation that is desirable, is subjectto debate. It is not axiomatic given the value of participation.13

Since there are a variety of institutional arrangements which couldsatisfy the participatory requirement of democracy to a greater orlesser degree, the chosen one must bear a burden of justification.14

Framing the issue in this way, I assume that a system which incor-

12 For this way of framing the debate between those who advocate and opposejudicial review in a democracy, see Robert A. Dahl, Democracy and Its Critics(New Haven: Yale University Press, 1989), p. 163; see also Albert Weale, “TheLimits of Democracy”, in Alan Hamlin and Philip Pettit (eds.), The Good Polity:Normative Analysis of the State (Oxford: Basil Blackwell, 1989), p. 2.

13 Thus, Tim Scanlon claims that political philosophy can tell us littleabout what kinds of participatory and/or representative institutions will satisfythe requirement of effective and equal participation, see T.M. Scanlon, “DueProcess”, in Roland Pennock and John Chapman (eds.), Nomos XVIII: DueProcess (New York: New York University Press, 1977), p. 98; see also CharlesBeitz, “Procedural Equality in Democratic Theory: A Preliminary Examination”,in R. Pennock and J. Chapman (eds.), Nomos XXV: Liberal Democracy (NewYork: NYU Press, 1983), pp. 69–70.

14 Note: Waldron’s arguments against judicial review focus on American-stylejudicial review under an entrenched Constitution. He does not give considerationto other models of constitutional review, such as that provided by the HumanRights Act 1998 in the United Kingdom. (For an overview of this and similarmodels, see Stephen Gardbaum, “The New Commonwealth Model of Constitu-tionalism”, American Journal of Comparative Law 49 (2001), pp. 707ff.) In theUK, judges are allowed to scrutinise legislation in light of the Human Rights Act,but they are not allowed to ‘strike down’ legislation which is incompatible withit. That power is reserved for Parliament alone. This model shows that American-style judicial review is not the only method of constitutional review. Although thismay have interesting implications for Waldron’s arguments, this is not a matterwhich he addresses in Law and Disagreement. Consequently, it is also outside the

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porates constitutional judicial review is nonetheless a democraticone. Whether judicial review can be justified, even if it places somelimits on popular participation, is the question which needs to beanswered.

PARTICIPATION AND THE INSTRUMENTALIST CONDITION OFGOOD GOVERNMENT

According to Waldron, the key to the nature of rights is the idea thatthere are

limits on what we may do to each other, or demand from each other, for the sakeof the common good.15

He observes that

to believe in rights is to believe that certain key interests of individuals, in libertyand well-being, deserve special protection, and that they should not be sacrificedfor the sake of greater efficiency or prosperity or for any aggregate of lesserinterests under the heading of the public good.16

This characterisation of rights is often employed as a starting-pointfor arguments in favour of entrenching rights in a Bill of Rights. Formany, this is thought to be a good way of giving rights the ‘specialprotection’ Waldron claims they deserve, because it subjects themto an independent review-procedure, relatively insulated from directpolitical pressure.

Although Waldron shares the starting point, he does not take thisfamiliar route for two reasons. One: we disagree about what rightswe have. Two: given this fact, we should respect people’s right toparticipate and their ability to have a say in the resolution of thesedisagreements. Crucially, Waldron does not view the right to parti-cipate as one (albeit important) value to be included in a balancewith others. For him, participation is fundamental: a participatory-majoritarian resolution of political disputes should be adopted, evenif this would lead to worse outcomes than any other decision-making

ambit of this essay, since the aim here is to provide a critical response to Waldron’sarguments about judicial review in his recent writings.

15 Law and Disagreement, p. 307.16 “Right-Based Critique”, p. 30.


mechanism. Thus, the likelihood that judicial review under a Bill ofRights might offer better protection to human rights than the schemeproposed by Waldron, is insufficient justification to restrict or limitthe “right of rights”. The reason Waldron gives for this is as follows:

If a process is democratic and comes up with the correct result, it does no injusticeto anyone. But if the process is non-democratic, it inherently and necessarilydoes an injustice, in its operation, to the participatory aspirations of the ordinarycitizen. And it does this injustice, tyrannises in this way, whether it comes up withthe correct result or not.17

He locates the worry about limiting the right to participate moreprecisely in the fact that it involves an attack on citizens’ dignity:

There is a certain dignity in participation and element of insult and dishonour inexclusion that transcends issues of outcome18

Waldron thus assigns a special status to the right of participa-tion that makes it inappropriate to limit it for the sake of protectingother rights or furthering other principles of political morality. Thequestion is whether this special status is warranted.

The idea that it is valuable in a democracy that people have a sayin political decisions, even when the outcomes of those decisionsare wrong, has considerable intuitive plausibility. As a democrat, itseems “right that [people] make the laws – even if they make themwrongly”,19 and it seems inappropriate to subject a wrong decision,made by plebiscite, to some sort of “authoritative correction”.20 Ifwe believe in government by the people, then we cannot (or shouldnot) override what they want, even when their decision is wrong.

While there may be some truth to this, it does not necessarilyfollow that we should design our political decision-making proce-dures in a purely majoritarian fashion. In other words, this pointdoes not secure the conclusion that all political decisions should bemade by majoritarian means. Given that the choice of procedureshas an impact on results, Waldron will need to show two thingsin order to prove the special status of ‘the right to participate’.

17 Ibid., 50.18 Ibid., 38.19 Michael Walzer, “Philosophy and Democracy”, Political Theory 9 (1981),

p. 386.20 Ibid., 385.

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One is that participation has value, independent of whether theoutcomes reached by the participatory decision-making procedureare in accordance with right reason. The second is that this valueoverrides the (instrumental) condition of delivering sound politicaldecisions.

Let us consider the first issue first. Popular participation andpopular control are widely thought to have intrinsic value, since itgives people the opportunity of contributing to, and getting involvedin the public life of their country, and furthermore, exerting popularcontrol over their representatives.21 This view is fully endorsed here,as is the related belief that the intrinsic importance of participationis contained (at least in part) in the dignity of being included inpolitical decisions and the concomitant insult of being excluded. Agood explanation of why participation is important in itself, ratherthan purely as a means by which political decisions are made isprovided by Ronald Dworkin.22

Dworkin offers two reasons for its intrinsic importance, bothrelated to what we might call the ‘dignity value’ of participa-tion.23 First, allowing individuals the opportunity to play a partin the community’s political decision-making confirms their equalmembership or standing in the community. In this sense, guaran-teeing an equal right of participation evinces a “public recognition ofequal respect for the autonomy of persons . . . a communal acknow-

21 See e.g., Anne Phillips, The Politics of Presence (Oxford: Clarendon Press,1995), pp. 28–29.

22 Ronald Dworkin, “What Is Equality? Part 4: Political Equality”, Universityof San Francisco Law Review 22 (1987), pp. 4–5, 19–23; see also John Rawls, ATheory of Justice (Cambridge, Mass.: Harvard University Press, 1971), pp. 233–234 and James Hyland, Democratic Theory: The Philosophical Foundations(Manchester: Manchester University Press, 1995), p. 189.

23 Note: in addition to reasons based in dignity, Dworkin also argues thatparticipation in political decisions can help citizens to identify with the results ofpolitical decisions and help them to view those decisions as in some sense theirs.This point is often made in support of the view that only democratic, participa-tory political decision-making can elicit the popular support which is necessaryto secure the requisite stability for political institutions and the laws they enact,see e.g., William Nelson, On Justifying Democracy (London: Routledge & KeganPaul, 1980), pp. 41–42; for consideration of the argument from stability in favourof equal political participation, see Charles Beitz, ibid., 84–86.


ledgement of individual worth”.24 It provides affirmation that oneis regarded by others as a person whose opinions and choices areof value.25 Moreover, this increases the sense that citizens ‘belong’in their community and are properly integrated in it.26 Secondly,it is important that people are able to express, assert and act upontheir moral convictions and commitments, not just in their personallives, but also in the public domain. It enhances a person’s sense ofworth if they can communicate their views to others and attempt toconvince them of their correctness.27

The intrinsic value of participation has one important con-sequence. It means that even if we came up with a decision-makingprocedure that produced good decisions but involved no participa-tory element, it would not be justified because it failed to recognisethe value of participation. The intrinsic value of participation showsthat the fact that a community’s decisions are in accordance withwhat is morally right is not all that matters: it also matters thatpeople have an opportunity to participate in those decisions. So, theway in which political decisions are arrived at has moral signifi-cance. We might say that the intrinsic value of participation createsa presumption in favour of participatory political decision-making,and places non-participatory decision-making mechanisms (such asjudicial review) under a burden of justification. However, it does notrule them out completely. It is just that the burden of proof shiftsto those who wish to argue for limits on citizen participation orexceptions to it.28 We must have a positive reason to think that sucha procedure would improve the quality of political decisions.

24 Beitz, ibid., 74–75.25 Ibid., 75; see also Jack Lively, Democracy (Oxford: Basil Blackwell, 1975),

pp. 134–135.26 That Jean Jacques Rousseau identified this integrative function as part of the

value of a participatory society is pointed out by Carole Pateman, Participationand Democratic Theory (Cambridge: Cambridge University Press, 1970), p. 27.

27 Dworkin’s articulation of this point is vague and he admits that the ‘agency’values of political participation, as he calls them, are ‘diffuse and elusive’, ibid.,21. That participation in public life can enhance self-esteem and can enlargetheir intellectual and moral sensibilities is also adverted to by Rawls, ibid., 234;Pateman, ibid., 24–25, 29–31.

28 Anne Phillips, ibid., 29; Beitz, ibid., 79.

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But does the intrinsic importance of participation give it thespecial status that Waldron claims? Would a political system whichfully guaranteed the right to participate, but was otherwise unjust,be justified? I believe that the answer to this question is negative.The reason for this is that the intrinsic value of participation doesnot compromise the central importance of what Joseph Raz calls the‘instrumentalist condition of good government’.29 This is the condi-tion that a community’s political institutions should be designed sothat they are likely to make political decisions in accordance withright reason. The design that is most likely to yield morally rightdecisions, or is likely to yield the most morally right decisions, ismost justified.30 The importance of this condition is supported bymany political theorists and is encapsulated by John Rawls when hesays that “. . . the fundamental criterion for judging any procedureis the justice of its likely results . . . the test of constitutionalarrangements is always the overall balance of justice”.31

In order to see why democratic government is subject to theinstrumentalist condition, we should note that what is just or right orfair does not always correspond to what is voted for through demo-cratic procedures. Some political decisions involve a choice betweenstates of affairs or actions which are morally right or wrong, betteror worse, independently of what people prefer. So, for example, thefact that some people believe that rape is morally right, does notmake it so. Popular preference does not transform a morally wrong

29 Joseph Raz, Ethics in the Public Domain: Essays in the Morality of Lawand Politics (Oxford: Clarendon Press, 1994), p. 117; see also Rawls, A Theory ofJustice, p. 232; The importance of the instrumentalist condition in justifications ofdemocracy is also acknowledged by Nelson, On Justifying Democracy, p. 100ff.

30 Of course, some will object that there is no such thing as a ‘morally right’ and‘morally wrong’ decision, thus rendering this statement meaningless. Defendingmyself from this type of objection would lead me well beyond the ambit of thisarticle and into another on the objectivity of value. For the purposes of this essay,I will assume that there is such a thing as a morally right and wrong decision. Thisis partly justified by the scope of the essay, and partly by the fact that this issueis not in contention with Waldron – he is keen to stress that there is a right andwrong independently of what people believe about this, see Law and Disagree-ment, p. 105: ‘rape is wrong even in societies where it is a common practice’ orp. 251: ‘I emphasise that [my argument] does not mean that a person has whateverrights he thinks he has or that he cannot be wrong in what he thinks’.

31 Rawls, A Theory of Justice, pp. 230–231.


state of affairs into one that is morally right. In the case of thesedecisions (let us call them political decisions with a moral content)our preferences can be evaluated on the basis of the morality of thepreferred state of affairs and political decisions of this sort can beassessed in light of the morality of the states of affairs they establishor actions they authorise. The fact that decisions are taken ‘demo-cratically’ does not preclude, or at least should not preclude, suchevaluation.32

It certainly cannot be assumed at the outset that popular pref-erence is the ideal way of making such decisions because, as wehave seen, people’s preferences do not determine what is morallyright or just. Political decisions of this sort are instances of whatRawls has called ‘imperfect procedural justice’:33 there is an inde-pendent criterion for deciding which outcome of the decision-making procedure is just, but it is impossible to design a procedurethat will always lead to the right result. The justice or injustice of thedecision is not itself determined by the properties of the procedurefrom which the decision results.

My support of the intrinsic importance of participation meansthat I can agree with Waldron that an injustice is done when polit-ical decisions are taken by undemocratic, non-participatory politicalarrangements. The injustice is contained in the fact that the right toparticipate is restricted, and this applies regardless of the outcomeof the decision. However, the instrumentalist condition of good

32 Clearly, not all political decisions are moral in this way. Some decisionsconcern matters of taste or preference, rather than morality, e.g., a decision aboutthe allocation of funds to a new football stadium or a new opera. However, evenin relation to these issues concerning taste, it is not indisputably correct that theyshould be made in accordance with people’s preferences alone. First, althoughsuch preferences cannot be faulted on moral grounds, the vote in favour of one orother option might still be faulted on the basis that it did not take everyone’s viewsinto account and did not aim to secure a just distribution of resources. Secondly, ina situation where the majority and minority are entrenched such as, e.g., NorthernIreland, decisions about the distribution of resources are likely to be made alongthe lines which favour the majority, i.e., public funds for cricket and soccer, butnone for Gaelic football or hurling. The problem of a permanent minority andits oppression can arise in relation to issues of taste and this raises doubts aboutmaking such decisions on the basis of a simply majority voting procedure, withoutany protective constraints. See Lively, ibid., 26–27.

33 Rawls, A Theory of Justice, p. 83; see also Nelson, ibid., 23ff.

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government warns us that even when political decisions are takenby representative, elected bodies, an injustice can also be done whenthe outcomes of those decisions are wrong, unfair or unjust. Inother words, the substance of the decision also matters, morallyspeaking. Democratic political decision-making may score highlyalong the dimension of participation (and thus be immune to thecharge of injustice when considered in these terms alone), but scorebadly when it comes to the substantive justice or fairness of thedecisions reached. In such a situation, the political order is still opento the charge that it has caused injustice, regardless of how open orparticipatory its decision-making mechanisms are.

Moreover, there seems no good reason to view political decision-making purely in terms of the participatory quality of its procedures.Since governmental decisions typically have a moral dimension andcan be judged good or bad, better or worse, it seems clear that agood governmental decision-procedure must be acceptable from amoral point of view. The moral quality of political decisions is suffi-ciently important to establish the instrumentalist condition: unlessa political arrangement is likely, by and large, to produce morallyright decisions (to lead to good government) it cannot be justifiedand should not be adopted. Governments require procedures formaking a variety of decisions, which inevitably affect the moralquality of our lives and institutions. They can only have authorityto make those decisions if they can generally make them well. Itfollows that, in designing institutions, we should choose procedureswhich are most likely to fulfil the condition of good government. Ifwe are concerned that a government makes good decisions on ourbehalf, a procedure will be acceptable only insofar as it is designedto yield morally correct decisions.34 The justice of the outcomesof political decisions is thus the fundamental criterion for judgingpolitical institutions and it determines what political procedures wechoose.35

This is not to say that a wrong decision is not binding. On thecontrary, it is part of the point of having authority to decide that

34 Nelson, ibid., 15.35 For this view, see also Rawls, ibid., 3, 227, 232; Nelson, ibid., 100ff; Ronald

Dworkin, Freedom’s Law: The Moral Reading of the American Constitution(Cambridge, Mass.: Harvard University Press, 1996), p. 34.


government decisions are binding even if mistaken. As Raz putsit, “it would not be an authority if it did not have the power toerr”.36 Governments can have the authority to do that which theyought not to do. But it is not part of the reason for any government’sauthority that it should pass unjust or immoral laws. The reason fortheir authority is that they will rule well.

It is worth noting that this view accords with the common beliefthat it is the duty of democratic governments to rule in the interestsof the governed or for the common good. Government decisionson behalf of the governed are frequently assessed on the basis ofwhether they made the right/just/fair decision. It shows that demo-cratic political decisions tend to be justified not merely on the basisthat they were made by elected officials (i.e., people chosen by thepeople), but also that these decisions tend to be the right ones, i.e.,in the best interests of those people.

It is also borne out by the fact that the activity of participa-tion in public life is not an end in itself. People participate inpolitics in order to influence political life in favour of the good,in order to secure or to contribute to securing certain outcomes.Clearly, people can benefit from the very act of participating inthe ways outlined earlier, i.e., it can help secure the dignity ofinclusion, respect for people’s views, a sense of belonging etc. Butthese benefits cannot be the sole aim. Political participation (i.e.,voting, assembling, forming lobby-groups, organising marches anddemonstrations, etc.) is a teleological activity:37 it aims at tryingto influence political decisions, so that they reflect or implementone’s views about some aspect of good government. So, in orderto be justified as a way of deciding political questions, it must beshown that participation in political decisions will help arrive at, oris instrumental to, sound political decisions, and the aim of thosewho participate must be to contribute to this goal.38

36 Raz, Ethics in the Public Domain (Oxford: OUP, 1996), p. 115.37 Alan Gewirth, Human Rights: Essays on Justification and Applications

(Chicago: University of Chicago Press, 1982), p. 319.38 Cf. Jon Elster, Sour Grapes: Studies in the Subversion of Rationality

(Cambridge: Cambridge University Press, 1983), pp. 91–100. (Waldron alsoacknowledges that participation is a teleological activity when he points out thata voter ‘should exercise [his franchise] responsibly, on the basis of what hisvote (along with large numbers of others) may cause to happen in the world’,

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Thus, it is plausible to suggest that many of the movements thathave historically pressed for participatory rights (in particular, theright to vote) have done so (at least partly) on the basis that it wouldhelp to redress some of the inequities in society generally and help toensure that their interests would be protected.39 It seems implausiblethat they could have wanted the right to participate regardless ofhow it would contribute to protecting their interests.40 In fact, it isquestionable whether one could actually attain the intrinsic benefitsof participation, if the instrumental condition of good government isnot satisfied, at least to some degree. For example, it is doubtfulthat people who possess a right to vote, but whose interests arenonetheless ignored or thwarted by an unconcerned government ormajority, would actually feel like full, valued members of society,whose dignity and autonomy is (equally) respected.41

The foregoing discussion reflects the fact that democratic partici-pation is not the whole of political morality. There are other valueswhich a political system must realise and these include the array offundamental rights. So, while Waldron is right that there is more tothe justification of political authority than good results, there is alsomore to it than the participatory nature of the procedure. The demo-cratic norm is not the only standard to be applied when assessingpolitical decisions. The priority of the instrumentalist condition

Law and Disagreement, p. 241. However, this does not lead him to endorse aninstrumentalist approach to political authority in general).

39 Ian Shapiro and Casiano Hacker-Cordon, “Promises and Disappointments:Reconsidering Democracy’s Value”, in Shapiro and Hacker-Cordon (eds.),Democracy’s Value (Cambridge: Cambridge University Press, 1999), p. 18 seealso Rawls, ibid., 229; Note: Charles Beitz claims that these movements pressedfor voting rights in order to redress substantive equalities, rather than to realisea procedural right of participation, ibid., 87. This seems to overlook the intrinsicimportance of participation which, in my view, must also be part of the politicalaim of movements who argued for the right to vote.

40 For consideration of this issue, see Elster, ibid., 91.41 Northern Ireland is a case in point, where Catholics enjoy formal rights of

participation, but are still aggrieved by a lack of protection for their interests,as well as discriminatory policies that do not accord them equal respect anddignity. As Dworkin puts it, ‘rights to participate in the political process areequally valuable to people only if these rights make it likely that each will receiveequal respect, and the interests of each will receive equal concern not only in thechoice of political officials, but in the decisions these officials make’, A Matter ofPrinciple, p. 64.


means that when designing institutions, we should do so on the basisthat they maximise the likelihood of good decisions. Waldron hasnot yet shown that the (intrinsic) value of participation overridesthis condition.

RIGHTS-INSTRUMENTALISM CONSIDERED

Not only does Waldron object to the substance of the argumentadvanced above, he also objects to its form. He is uneasy aboutaccepting arguments in favour of instrumental theories of authority,i.e., theories based on the instrumental value of decision-makingmechanisms to certain goals or ideals, such as, e.g., the protectionof fundamental rights. Instrumental arguments seem to imply thefollowing worrying possibility: if the exercise of democratic rights iscapable of causing more harm than good, then we would be entitledto do away with democratic institutions altogether. So, Waldronwarns that if we

. . . regard political participation as one instrument among others to secure[certain] ends . . . then if it turned out that basic material interests could besecured better by non-participatory institutions, then the erstwhile electors wouldgratefully abjure politics forever and return to commerce or agriculture.42

It should be clear by now that, given the intrinsic importance ofparticipation, this would not be justified. A political arrangementwhich overrides the value of participation completely, i.e., offers nomeaningful opportunity for popular participation would not be justi-fied. However, we have seen that even when we accept the intrinsicvalue of participation, nothing definite follows about its exact scopeand extent. So, the goal of protecting rights, say, may justify somerestriction on participation.

Clearly, this argument is unlikely to satisfy Waldron since heis concerned with even the slightest incursion into ‘the right ofrights’. He opposes the very idea that one can justify a form ofpolitical authority on the basis of the results they may deliver forthe simple reason that the goals of political morality, which the

42 Waldron, “Right-Based Critique”, p. 36. This worry is also expressed in Lawand Disagreement, p. 242, and shared by James Buchanan, Liberty, Market andState: Political Economy in the 1980’s (London: Wheatsheaf, 1990), p. 250.

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decision-making procedure is supposed to reflect and implement,are subject to widespread disagreement:

Rights-instrumentalism seems to face the difficulty that it presupposes ourpossession of the truth about rights in designing an authoritative procedure whosepoint it is to settle that very issue.43

The existence of controversy about the rights associated with democracymeans that a results-driven approach is . . . unavailable to us as a politicalcommunity.44

Citizens who disagree about what would count as the right results are notin a position to construct their constitution on this basis (i.e., on the basis of aresult-driven rather than procedure-driven standard).45

So, the justification of a form of government based on the asser-tion that the government will protect rights requires an accountof what those rights are. But since we disagree about what rightswe have and how we understand them, such an account cannot befurnished.46 Thus, the instrumentalist argument fails. The only wayout of the impasse, according to Waldron, is to fall back on the rightof participation.

There are a number of responses to this argument. First, we do notneed a precise account of what rights we have and how they shouldbe interpreted in order to make some instrumentalist claims. Manyinstrumentalist arguments are not based on knowledge of the contentof any particular rights. Rather, they are based on general insti-tutional considerations about the way in which legislatures makedecisions in comparison to judges, the factors which influence theirdecision and the ways in which individuals can bring their claimsin either forum. The familiar argument that judges should makedecisions about rights because they are an independent body and

43 Law and Disagreement, pp. 253, 243.44 Ibid., 300.45 Ibid., 293.46 This argument is also made by Tom Campbell, “Human Rights: A Culture of

Controversy”, Journal of Law and Society 26 (1999), p. 14; Similarly, an instru-mental justification of democracy itself is also ruled out by Thomas Christiano onthe basis that we cannot know what the goals of political life are or should be,see Christiano, The Rule of the Many (Oxford: Westview Press, 1996), pp. 66–67: ‘Well-being is so hard to know, that it would be absurd to evaluate politicalinstitutions on the basis of so unfathomable a standard’.


thus relatively insulated from direct political pressure is a commonexample of this type of argument.47

Furthermore, the difficulty of establishing what rights we haveor what goals our society should pursue does not, in itself, estab-lish the propriety of participatory majoritarianism as a politicaldecision-making procedure. The procedural response to disagree-ments put forward by Waldron, whereby everyone can have a sayin the resolution of political problems by voting or participatingin public deliberation, is just one option amongst many. Anotherresponse would be to take contentious and potentially divisive issuesoff the legislative agenda, and place them in an entrenched Consti-tution enforced by the courts.48 The fact of disagreement in societyabout aspects of political morality will have a bearing on the insti-tutional mechanism which is chosen to implement them, but it doesnot determine that choice in favour of participatory majoritarianism.

Finally, and most importantly, if disagreement about the bestmeans of protecting rights is the ground on which we should rejectthe institution of judicial review, then it is difficult to see why itdoes not impugn participatory majoritarianism on the very samegrounds. Recall that Waldron invokes participatory majoritarianismas “. . . the most natural answer to the problem of authority”49 givenpervasive societal disagreement about value. It is the right we should

47 Waldron is aware of this type of argument, which he refers to as ‘a moremodest rights-instrumentalism’, Law and Disagreement, p. 253. He discounts theforce of this brand of instrumentalism on two grounds. One is that it runs counterto the idea that ‘rights are best taken by those who have a sufficient stake in thematter to decide responsibly’, ibid., 253. Doubt is cast on the cogency of this idealater in this article. The second reason is that it too is the subject of disagreement:‘it is almost as difficult to defend an impartial account of what the modest versionof rights-instrumentalism requires as it is to find a non-question-begging versionof direct instrumentalism’, p. 254. The argument from disagreement is addressedin my response to his claims about the latter.

48 The controversial and potentially divisive aspect of some political issuesseems to be part of the basis on which the political philosophers Stephen Holmesand John Rawls favour entrenchment of those matters in the written Constitution:see Stephen Holmes, “Gag Rules or the Politics of Omission”, in Jon Elster andRune Slagstad (eds.), Constitutionalism and Democracy (Cambridge: CambridgeUniversity Press, 1988); John Rawls, Political Liberalism (New York: ColumbiaUniversity Press, 1993), pp. 150–161.

49 Ibid., 254.

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use to settle issues regarding other rights and all other matters ofpolitical principle and policy given the circumstance of disagree-ment. But participatory democracy could only survive a challengeposed in the terms Waldron uses to criticise judicial review, if it wasitself an uncontroversial solution to the problem of rights-protection.But this is clearly not the case. People disagree about whetherparticipatory majoritarianism is a desirable way of making politicaldecisions, just as they disagree about the value of having constitu-tional judicial review. Not only that, but they disagree about types ofvoting system, different voting mechanisms, regularity of elections,finance of political campaigns, how votes should be counted, etc.So, if Waldron’s claim about judicial review is valid, then it under-mines the basis of his own argument for the priority of the right toparticipate on equal terms, because it is not immune from the sort ofdisagreement which he argues is fatal to all other modes of politicaldecision-making.50

Waldron is not oblivious to this problem. Naturally, he is awarethat people disagree about democratic procedures, just as much asdemocratic outcomes.51 However, despite the fact that participatorymajoritarianism also suffers from this shortcoming, he claims thatit (rather than any other procedure) should nonetheless be used. Hisargument in favour of this move is notably weak. It is that “we canjust use the majority decision method in a pragmatic way to solvethe issue”.52 Such a pragmatic use of majoritarianism would be“informal and unfreighted”,53 leaving open the issue of legitimacy.It would not involve privileging majoritarianism:

50 This point has been made by many commentators on Waldron’s recent work,see e.g., Joseph Raz, “Disagreement in Politics”, American Journal of Jurispru-dence 43 (1998), p. 47; Cecile Fabre, “The Dignity of Rights”, Oxford Journalof Legal Studies 20 (2000), p. 275; Cecile Fabre, “A Philosophical Argument fora Bill of Rights”, British Journal of Political Science 30 (2000), p. 93; ThomasChristiano, “Waldron on Law and Disagreement”, Law and Philosophy 19 (2000),p. 520.

51 He acknowledges that just as ‘people have their own results-based opinions’,they will also have ‘their own opinions about procedures’, Law and Disagreement,p. 300, see also “Right-Based Critique”, p. 39.

52 Law and Disagreement, p. 300.53 Ibid.


it is simply to use it . . . If we choose one of the procedures which are up fordecision as the procedure for making that very decision, we do so simply becausewe need a procedure on this occasion and this is the one we are stuck with for thetime being.54

It is difficult to see how using one method of political decision-making in order to decide which method of decision-making is mostlegitimate, avoids privileging that procedure. Nor is it clear howresorting to ‘pragmatics’ can sidestep the question of legitimacy. Ifwe use a procedure for political decision-making without knowingwhether it is legitimate or not, then we have no reason to accept theoutcome of such a procedure as authoritative.55 An assertion thatone procedural arrangement should be used in preference to anotherinvites the question why that arrangement should have special claimon our support. The proceduralist must provide reasons “why [thefavoured procedures] have a characteristic whose value is both over-riding and independent of considerations about results”.56 Simplyto respond that it is the mechanism “we are stuck with for the timebeing”57 does not meet this justificatory burden, because it does notcarry any moral weight: it gives us no good reason to ‘stick with it’in the future.

IMPACT ON THE RIGHTS-BEARER

Waldron advances a further line of argument, that might be thoughtto discharge this burden. This is the claim that since decisions aboutrights affect people as right-bearers, they should be allowed to makethose decisions. The entitlement of rights-bearers to decide mattersconcerning rights is explained in the following way:

Decisions about rights are best taken by those who have a sufficient stake in thematter to decide responsibly.58

54 Ibid., 301.55 Fabre also raises this objection, ‘The Dignity of Rights’, p. 277.56 Beitz, ibid., 83.57 Disagreement, p. 300.58 Ibid., 253, see also, 244, 250.

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The peculiar insult to an individual A of A’s being excluded from political powerhas to do . . . with the impact of political decisions on A’s own rights and interests. . . Because A is affected (along with B,C,D) A can think of himself as havingstanding in the matter.59

So, the impact of decisions about rights on individuals, togetherwith the ‘stake’ they then have in that decision, is meant to establishthe desirability of resolving those issues by way of participatorymajoritarianism. Now, it is not immediately obvious why beingaffected by a decision creates an entitlement in the person soaffected that he or she should make the decision. There are manysituations where the opposite is the case. In the case of medicaldecisions which clearly affect us in significant ways, we often thinkit is better to leave them to doctors. Similarly, we often leave legaldecisions to our lawyers, financial decisions to accountants/financialadvisers etc.60 In cases where we do not have the relevant expertiseor knowledge, we often hand over the power to make decisions tothose who have. That these are important decisions which affect usmay be a strong reason in favour of allowing someone else decidethem. But is it different in politics? Are political decisions such thatonly the individuals affected by them should make them?

A preliminary point to note is that in modern democracies, itis almost invariably the case that political decisions are made bypublic representatives rather than directly by us – the people whoare affected by them. So the question about the protection of rightsis not whether we should make these decisions ourselves or whetherwe should hand them over to judges. It is about who should makedecisions about rights on our behalf – elected representatives orjudges?61 Thus, the argument about impact or standing would haveto be that those who represent or speak for A’s interests in parlia-ment, should make decisions which affect A, rather than judges inan independent court.

The plausibility of Waldron’s argument to this conclusiondepends on what exactly he means by ‘impact’ or ‘stake’, an issue on

59 Ibid., 238.60 This point is also made by William Nelson, ibid., 46.61 It is thus misleading when Waldron says ‘We should distinguish between

a court’s deciding things by a majority, and lots and lots of ordinary men andwomen deciding thing by a majority’, “Right-Based Critique”, p. 49.


which he does not supply much in the way of clarification. We needto get a more detailed idea of what it means to say that people areaffected by a political decision in order to assess his claim. We canbegin by noting that people’s lives are variously affected by politicaldecisions pertaining to fundamental rights. The way in which theyare affected, and the degree to which they are so affected, dependson the content of the political decision. Take for example a politicaldecision to enact legislation introducing a minimum wage. Someonein the low income bracket may stand to gain considerably from thelegislation, and is thus differently affected than others in society.Some employers, for example, may be placed under a considerablefinancial burden by the legislation. Alternatively, it may have noimpact (or at least no direct impact) on high earners. This is oneof many examples where individuals can be directly affected, eitherpositively, adversely or not at all, by political decisions.

Given that ‘A’ must participate with others (B,C,D, etc.) in orderto make political decisions, then the decision-makers will includesome who stand to gain and others who stand to lose from theoutcome of the decision. In these circumstances, it is difficult tosee how the fact that the whole population is variously affected bya political decision establishes that they should make that decision.In fact, there are reasons to believe that the opposite is the case. Itis precisely in those situations where people are directly affected,that their judgement is open to bias. If they stand to benefit from thedecision, they may be tempted to support it for this reason, regard-less of its or its effect on others or their rights. Similarly, if peopleperceive themselves to be adversely affected by a decision whichprotects other people’s rights, then they might be moved to voteagainst it, again on grounds of self-interest. The danger is partic-ularly acute in a situation where the right applies to conduct whichfinds little or no popular favour, or applies to a marginal group insociety.

Thus, people might be moved to vote for a set of policies whichaim to ‘get tough on crime’ out of fear of an escalation of crimein society, or a desire to protect themselves or their families fromcriminal activity. The fact that the legislation might violate thefundamental rights of suspects or convicted criminals might be arelatively unimportant factor in their deliberation. Where there is

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a popular lack of concern for, or straightforward opposition to theprotection of the rights of one particular group, and where bias cancloud judgement, then there is a case for removing the decisionfrom the hands of those who are affected and giving it to thosewho are not. In short, political decisions affect many people anddo so in different ways. The importance of the interests protected byhuman rights combined with the risk of bias, self-interest or myopiamake a case for removing rights from majoritarian mechanisms,and submitting some of those decisions to an independent reviewbody. Since the court upholding an entrenched Bill of Rights hasno interests of its own to further, and is relatively unaccountable tothe various political interests in society, it can provide an impartialforum in which the issues can be decided in light of constitutionalprinciples. This procedure is preferable precisely because judges arenot directly affected by their own decision. As unelected officials,they can provide a corrective to some of the energies which animatenormal politics, such as those of political interest and power.62

This point lies at the root of a claim advanced by RonaldDworkin that allowing normal political decision-making mechan-isms to make decisions about constitutional rights entails that theelectorate, together with the legislature it elects, become judges intheir own cause.63 The idea at work here is that the job of measuringa popular political act against constitutional principles should not beleft to the same political entity that supported the act in the firstplace. Dworkin argues that allowing a majority to decide on theconditions under which majority decisions are to be accepted thenmakes that majority a judge in its own cause.

Given that the legislature is a multi-membered body, often withtwo chambers making decisions and elections in place to change theelected members at regular intervals, it may be problematic to talk ofMPs or the public at large being ‘judges in their own cause’, eitheras a general matter or on a particular issue.64 However, it is certainlythe case that a powerful group with widespread popular and polit-

62 George Kateb, ‘Remarks on Robert B. McKay, “Judicial Review in aLiberal Democracy” ’ in Nomos XXV: Liberal Democracy (New York: New YorkUniversity Press, 1983), p. 150.

63 see Dworkin, A Matter of Principle, p. 24.64 This reservation is expressed by Lawrence Sager, “The Incorrigible Consti-

tution”, New York University Law Review 65 (1990), p. 956.


ical support which opposes the protection of minority rights, couldsucceed in undermining such protection with impunity in a systemwhich has no checking mechanisms in place to prevent the major-itarian preference holding sway. In such a situation, where there isstrong opposition to the enforcement of a right, it might not be ofmuch help to the besieged minority to submit the judgement aboutthe constitutionality of that decision to the populace who originallydecided not to protect it.

Jeremy Waldron denies the force of this argument on groundsconnected to his claims about the importance of ‘impact’ on therights-bearer. Waldron claims that the principle of nemo iudex incausa sua is “. . . inappropriate in a situation where the communityas a whole is attempting to resolve some issue concerning the rightsof all the members of the community and attempting to resolve it ona basis of equal participation”.65

Two points can be made in response to this claim. First, itdoes not follow from the fact that all people have the right toparticipate in a political decision that no-one, or no group, will effec-tively be excluded from influencing that decision. People who havelittle political power or influence, and are persistently outvoted bymore powerful groups, will effectively be disenfranchised in normalpolitics, despite their possession of the formal right to participate.Given the disparities of power and wealth in society, having anequal right to participate does not mean that one’s actual ability toparticipate effectively is equal.66 These disparities, as well as thedanger of excluding a permanent minority, demonstrate how theformal right to participate and effective right to participate come

65 Law and Disagreement, p. 297.66 For the difference between possession of a formal right, and the effective-

ness of that right, see Gewirth, supra note 35; Note: the debacle surrounding the2000 U.S. Presidential Election reminds us that disparities of power, influenceand money are not the only ones that can undermine people’s equal chance ofhaving their votes counted. Such distortions can also be caused by disparitiesin vote-counting mechanisms in different states, see Cass Sunstein, “The EqualChance to Have One’s Vote Count”, Law and Philosophy 21 (2002), p. 122. Itis also worth noting that Sunstein interprets Bush v. Gore 121 S Ct 525 (2000)as authority for the proposition that there is ‘a constitutional right to the equalchance to have one’s vote counted’, ibid., 121, and that this right has ‘large andinadequately appreciated possibilities’, p. 135.

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apart. If Waldron’s concern is that no one is excluded from thepolitical decision-making process, this is not always well served bygiving people an equal (formal) right to participate in majoritariandecisions.

Secondly, it is misleading to refer to the decision as one aboutrights which all members of the community have. Although rightsmay be guaranteed to all citizens, those rights can be invoked orasserted in order to protect particular behaviour, or behaviour of aparticular group of individuals. Similarly, the protection of the rightcan be denied to a particular group in society, rather than challengedin its entirety. Thus, while the right to privacy or liberty may beuncontroversial as a general statement of what all members of thecommunity have, many people may oppose the application of thisright to protect the private life of homosexuals. Rather than referringto this situation as one concerning the rights of all members of thecommunity, it may be more accurate to describe it as one involvingthe rights of one particular group. If a group is excluded becausethey do not have sufficient political power or support to advanceits claims in the first instance, then submitting the question of thecorrectness of that decision to the same decision-making procedurewhich excluded them, may be futile. In my view, this is preciselya situation where the existence of a forum for judicial review canbe valuable, so that such matters can be decided independently ofthe political power-structures which may otherwise prevent certaingroups getting due protection for their rights.

DEMOCRACY AND DISTRUST

Waldron has not yet shown that participatory procedures takepriority when it comes to decisions about rights. However, it maybe the case that judicial review is still open to some of the objec-tions he levels against it. One such claim is that the case for judicialreview relies on an unduly pessimistic and distrustful view about thecapacity of the democratic political process to protect fundamentalhuman rights. To Waldron’s mind, the claim that judicial review isnecessary to protect individual and minority rights “is only plausibleas long as one thinks that proper regard will not be paid to individual


rights in the democratic and representative processes”.67 The correctassumption, according to Waldron, is the opposite one, namely,that

voters and legislators are capable of focusing their deliberations on the generalgood and on some sense of the proper balance that should be held amongindividual interests in society.68

Once we adopt this view of the democratic process and thepeople operating within it, the justification for judicial review isundermined.69

This argument is explicitly right-based. Waldron claims that thereis a deep inconsistency involved in making the case for judicialreview on the basis that judicial review provides the best way ofprotecting rights. This is contained in the fact that our reasons forsupporting judicial review are at variance with the very basis onwhich we protect people’s rights in the first place, namely, thatpeople are responsible moral agents with the capacity for auto-nomy.70 According to Waldron, the attribution of rights is based ona certain view of rights-bearers, namely, autonomous persons with acapacity to reason morally and exercise their rights in a responsibleand moral way. If we propose to set up our institutions on the basisthat people are bound to act irresponsibly or irrationally or rashly,then we imply the paradoxical belief that people are not worthy ofthe human rights we wish to protect.71 As Waldron puts it:

67 Jeremy Waldron, “Rights and Majorities: Rousseau Revisited”, in LiberalRights: Collected Papers 1981–1991 (Cambridge: Cambridge University Press,1993), p. 416.

68 Law and Disagreement, p. 417.69 This view is advanced by writers such as, e.g., David Gauthier, “Consti-

tuting Democracy”, in D. Copp, J. Hampton and J. Roemer (eds.), The Idea ofDemocracy (Cambridge: Cambridge University Press, 1993), 315; Albert Weale,Democracy, p. 170.

70 See “Right-based Critique”, p. 27; See also James Allan, “Bills of Rights andJudicial Power – a Liberal Quandary”, Oxford Journal of Legal Studies 16 (1996),p. 337ff.

71 This point is also made by Richard. Bellamy and Dario Castiglione, ‘ReviewArticle: Constitutionalism and Democracy – Political Theory and the AmericanConstitution’, British Journal of Political Science 27 (1997), p. 2041.

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This attitude of mistrust of one’s fellow citizens does not sit particularly well withthe aura of respect for their autonomy and responsibility that is conveyed by thesubstance of the rights which are being entrenched in this way.72

It is no part of my argument that public representatives or peoplein general lack the capacity to deliberate about rights or to strive fortheir protection. Arguments of principle, concern for the commongood and the well-being of individual citizens are the very stuff ofmany arguments proposed to and in legislatures.73 Nor do I doubtthat people are capable of voting in a moral way, or in a waythat looks beyond their own narrow self-interest and incorporatesconsideration of the common good. However, that is not to saythat they will always act in this way.74 Even if we accept people’scapacity to make the right decisions when they act politically, we arestill faced with the prospect that they might not always do so. Theymay make the wrong decision, either because they give preferenceto their own self-interest over the common good, or because theyfail to consider the long-term effects of their decision or the effect itmight possibly have on others. In my view, there is no inconsistencyin saying that people have the capacity to decide well and sometimesdecide badly. In designing institutions, we should put both of thesefacts into the equation.

Nor is it inconsistent to acknowledge the possibility that peoplemay violate other people’s rights, or that they may favour their owninterests rather than the common one, and simultaneously view themas responsible moral agents. We can believe that people shouldbe treated as responsible moral agents, and still provide safety

72 Law and Disagreement, p. 222.73 The point that arguments of principle permeate the deliberation and decision-

making of ordinary politics (i.e., that the court is not the only principled institutionin democratic government) is widely advanced as part of a critique of Dworkin’sdistinction, see Finnis, ibid., 311; see also Waldron, “Rights and Majorities:Rousseau Revisited”, p. 418; Weale, Democracy, p. 170; Cass Sunstein, ThePartial Constitution (Cambridge, Mass.: Harvard University Press, 1993), p. 146.

74 Note: by emphasising respect for their capacity to decide well, Waldron doesnot wish to deny that people sometimes make mistakes or bad judgements: ‘Thefaith in the right-bearer’s choice evinced by the attribution of the right is certainlynot confidence that he will unerringly make the right choice; nevertheless it isborne of a conviction that he has the wherewithal to ponder responsibly whatevermoral issues the choice involves’, Law and Disagreement, p. 250.


mechanisms just in case people make a mistake. This is simply toacknowledge that responsible moral agents can act immorally aswell as morally. In fact, we are sometimes appalled by the decisionswhich people make, precisely because we understand them as moralbeings.75 So, there is no inconsistency between attributing rightsto people on the basis that they are rational, autonomous peopleand setting up political institutions to check for an erroneous, self-interested or myopic decision about rights and reverse this decisionif it is found to be wanting. Capacity for moral judgement is notinconsistent with moral fallibility.

But does our support of a review procedure not betray a lack offaith or distrust in politicians and ordinary citizens, i.e., distrust oftheir ability to use their moral capacity for the good? It should benoted at the outset that the issue about distrust goes to a generalpoint about the basis on which we should plan and design our insti-tutions. When considering institutional design, we should seriouslyconfront questions about the likelihood that political institutionswill perform their functions in accordance with sound politicalmorality and if not, whether any safeguards can be put in place tominimise error. Given that we think that the interests rights protectare important ones (a point on which Waldron agrees), guardingagainst risk should be a stronger motivating factor in setting up insti-tutions, than any optimism we may have about people’s willingnessto do the right thing.76 In other words, we should err on the sideof vigilance rather than complacency when it comes to designinginstitutions to uphold rights. We should take into account the possi-bility of a wicked government gaining power, or a good governmentoccasionally making mistakes.

This is not to say that we distrust politicians. It is simply toadopt a cautious rather than sanguine approach to those who arein power. Many violations of constitutional rights occur through nofault of the legislator or any mishandling of rights concerns. Theycan occur simply because the legislature did not have the protectionof a particular right in the forefront of its concerns, when enacting

75 Fabre, ‘A Philosophical Argument for a Bill of Rights’, p. 91.76 John. Hart. Ely, Democracy and Distrust: A Theory of Judicial Review (Cam-

bridge, Mass.: Harvard University Press, 1980), p. 181; Christiano, ‘Waldron onLaw and Disagreement’, p. 536.

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a particular piece of legislation. Sometimes, rights-violation canoccur because of changes within society and this may only becomeapparent after years of being on the statute-books.77 The fact thatmany rights-violations occur without any hostility to rights protec-tion or irresponsible decision-making, does not undermine the casefor judicial review under a Bill of Rights. In fact, it strengthens it,because it shows that even if we assume that legislators will alwaysstrive to protect rights in every case, and never succumb to pressuresto do otherwise, the possibility of rights-violations still exists. Evenon the best-case scenario (where no political actor is swayed fromtheir moral duty to protect rights) there is still room for a case forconstitutional judicial review. Having a review mechanism whichcan be activated by the person whose right is allegedly violated canbe a useful way of bringing violations of rights to light and helpingparliament to rectify any shortcoming in legislation if they occur.

It is also important to note that the effectiveness of judicial reviewdepends largely on whether the fundamental principles contained inthe Bill of Rights are respected by the other organs of governmentand in society in general. Without a belief in the value or impor-tance of human rights generally amongst all political branches, thereis little possibility that judicial review could succeed in protectingthem on its own or preserve them in the face of a hostile politicalculture.78 In fact, it would find it impossible to function effectivelywithin such a political culture.79 So, rather than displaying distrustin the people and their representatives, effective protection of rightsin the courts, positively relies on such trust being warranted. If it is

77 Note: These points do not establish, in themselves, why the courts shouldremedy the injustices which emerge over time rather than parliament. They merelygo to show that rights violations are not always the product of ill-motivated oreven careless law-making; they inevitably arise as the conditions to which legis-lation applies change. Therefore, we can expect them to occur without assumingan attitude of distrust towards members of parliament.

78 See Dahl, ibid., 173.79 John Rawls, “The Domain of the Political and the Overlapping Consensus”,

in D. Copp, J. Hampton and J. Roemer (eds.), The Idea of Democracy(Cambridge: Cambridge University Press, 1993), p. 263; see also AlexanderBickel, The Least Dangerous Branch (New Haven: Yale University Press, 1962),p. 244.


not, then no amount of constitutional constraint or judicial reviewcan compensate for it.

PARTICIPATION AS A MODE OF SELF-PROTECTION

Despite his fervent opposition to instrumentalist justifications ofpolitical authority, Waldron ends up resorting to such an argument.He claims that, by participating in majoritarian politics, citizenshave a better chance of protecting their rights, than if this protectionis left to others:

We value participation not just as an end in itself, but also because we think thatthis is one way to ensure that each person gets what is hers by right.80

Participation is also valued as a mode of self-protection: each individualacts, to some extent, as a voice for those of her own interests that ought to betaken seriously in politics.81

The claim that participation offers a mode of self-protection for theinterests of the individual has traditionally been a common justi-fication of participatory democracy.82 The basic idea is that in apopular form of government, the chance of injustice will be reducedbecause people will stand up for their rights. Self-governmentprotects people against abuses, by giving them a chance to standup for themselves, by voicing and ultimately protecting their owninterests.83

This argument does not survive scrutiny, since it rests on twodubious assumptions. One is that people will in fact be capable ofstanding up for their rights through the normal political channels.The second is that enabling people to participate in political life isthe best way of securing protection for their rights. First, people withconcerns of marginal political importance, who lack political organ-isation or whose interests are thought to put an excessive burden onthe State, may be effectively excluded from the political process and

80 “Right-Based Critique”, p. 37.81 Ibid., 37.82 Geraint Parry, “The Idea of Political Participation”, in Geraint Parry (ed.),

Participation in Politics (Manchester: Manchester University Press, 1972), p. 19;Carole Pateman, ibid., 19.

83 Nelson, On Justifying Democracy, pp. 113–114.

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simply unable to ‘stand up’ for their rights in the normal politicalprocesses. Although they have a formal right to vote, associate andassemble, they are effectively disenfranchised because they cannotgain support or recognition for their claims and concerns.84 Normalrepresentative politics, operating as it does on a massive scale withcompeting interests fighting for protection and support, creates asystemic risk that those who fail to mobilise political support orwhose interests are not represented by a member of parliament,will be effectively disenfranchised. Judicial review before an inde-pendent tribunal offers a greater possibility that such individuals orgroups can bring their claims to public attention and argue that theyshould be protected as a matter of right. So, if Waldron’s concernis that people are genuinely entitled to voice their concerns and‘have a say’ in politics, then it is not at all clear that participatorymajoritarianism is the best way of realising that aim.

This merely reflects the distinction adduced earlier betweenformal and effective participation. Political participation isdependent on the possession of political, financial and organisa-tional resources. Differences in wealth, education and popularsupport all have a role to play in creating disparities betweenpeople’s political power and their ability to achieve or influencetheir political goals. Clearly, these inequalities will enable thosewho are better situated, either financially or politically, to exercisea larger influence over legislation and a greater chance to ensurethe protection of their interests.85 Organisation skills, time, money,easy access to agents of government, parties or the media, these areall necessary to the construction of effective political action and allare attributes which are relatively inaccessible to many. So, even ifeveryone has the right to vote and participate in democratic politics,this does not mean that everyone will be able to get their voice heardor be able to influence policy to the same extent.86

84 For the distinction between formal and effective participation, see Gewirth,ibid.

85 Lively, Democracy, 22; see also Terrance Sandalow, “The Distrust ofPolitics”, New York University Law Review 56 (1981), p. 449.

86 Charles Beitz calls this the difference between potential and actual polit-ical influence, ibid., 73; see also Dworkin, “What is Equality? Part 4: PoliticalEquality”, p. 12.


Unless other social inequalities leading to inequality of polit-ical leverage are removed or mitigated, the idea that genuinelyequal participation can be achieved simply by giving everyonethe right to participate is no more than a “pious aspiration”.87 Ifwe are concerned to give people an audible voice in our polit-ical arrangements, then we should look into other mechanisms torealise this aim. As John Rawls puts it, we must be prepared to take“compensating steps”88 in order to preserve the fair value of thisright for all. A willingness to investigate such options displays anappreciation of the gap between formal and substantial equality, aswell as a desire to narrow this gap in order to enhance real politicaland social inclusion.89 The options are many and varied. They couldinclude making television time or newspaper space available freelyto the poor or placing limits on the funding of political parties.90

Another mechanism is that provided by judicial review.The de-coupling of formal and effective participation has one

further important consequence. Following the instrumental condi-tion of good government, securing effective participation in away which pays tribute to people’s fundamental equality, mayitself require some inequalities in formal participation. Thus, if itcan be shown that the interests underlying participation (namely,autonomy, dignity, inclusion, etc.) are better protected by havingdemocratic government combined with judicial review, then thiscombination of institutional procedures should be chosen. Here,the limits on the right to equal participation are set by the goal ofachieving maximum effective participation for all.

Finally, even if we accept that everyone’s voice could be heardin normal politics, this does not show that popular participation isthe best way of protecting people’s rights. It is still an open ques-

87 Phillips, ibid., 30. As Alan Gewirth points out in relation to Americandemocracy: ‘the democratic process is itself characterised by the same inequalitiesas characterise the other, substantive aspects of American society’, ibid., 322;see also Gewirth, The Community of Rights, (Chicago: Chicago University Press,1996), p. 340.

88 Rawls, ibid., 225.89 Phillips, ibid., 35.90 For an outline of these and other measures that could be instituted in order to

make more available to groups the ‘effective ability to press their claims in publiccommunication’, see Gewirth, ibid., 324–325.

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tion whether having a right to participate in the political system(through the right to vote, associate, assemble, etc.) is a better way ofprotecting rights, than a system which entrenches them against legis-lative abrogation and enables people to bring their claims beforean independent tribunal. The fact that some people have difficultyin getting their voice heard and taken seriously in normal politicsmakes it likely that, as a consequence, they will find it difficult tosecure political or legal protection for their interests in the publicsphere. In my view, such people would be better off if they hadthe opportunity to bring their claims before a constitutional courtwhich considers their individual case in an impartial tribunal inlight of constitutional principles. If their case is a good one, thena claimant has a significant power to directly influence politicaldecision-making. The institution of judicial review can provide ameans whereby people can participate more effectively in politics,than a situation where they have one vote amongst millions in ageneral election. So, there is at least a class of cases (i.e., thosewho cannot bring their claims to public attention in normal politics)where having rights of participation in political life is not the bestway of securing protection for their rights. Participatory decision-making may go some way towards ensuring against arbitrary oroppressive government, but it is not, in itself, sufficient to ensure thatthe government will protect constitutional rights across the board.

RIGHTS, PARTICIPATION AND RESPECT

In the course of this essay, I have argued contra Waldron thatthe right to participate, although intrinsically valuable, does notcompromise the central importance of the instrumental conditionof good government. While acknowledging the value of democraticgovernment, I aimed to show that democratic values are not, andshould not be, the whole of our political morality. The value ofparticipation is one important value amongst many which need to bebalanced in the design of institutions. It is one element of the theoryof justice that must be protected under the theory of authority, butits importance is not overriding. Crucially for our purposes here, itdoes not rule out limits on participatory-majoritarian resolutions of


political questions, when such limits would increase the protectionof people’s interests overall.

Implicit in much of the preceding discussion is the fact thatthere are many supportive connections between constitutional rightsand popular participation.91 In conclusion, it is worth highlightingjust two. First, an important consequence of entrenching rightsin a judicially enforced Bill of Rights, is that it empowers indi-viduals to initiate litigation in order to assert and enforce their rightsbefore an independent court, as well as giving them the ability tosecure damages for their violation. This turns constitutional rightsinto sources of power for individuals. If successful in their claims,litigation can enable individuals to effect changes in legislation,which legislators may have otherwise been reluctant or unwillingto make. However, it would be a mistake to assume that successin the courtroom is the only aim of those who engage in constitu-tional litigation. Regardless of whether they win or lose, litigantscan succeed in raising the profile of an otherwise marginal issueand bringing it into the limelight for public debate. Individuals andgroups who engage in litigation can succeed in gaining popularsupport for a cause, even if they fail to persuade the judges of theSupreme Court.92

In these ways, judicial review involves a distribution of politicalpower in society, such that those who might otherwise be effec-tively disenfranchised in the political system can press their claimin the public life of their country. It can provide an added channelof participation, which can benefit those who might have difficulty

91 These two are not the only supportive links between entrenched rightsand democratic government. For discussion of an array of such connections,see generally Peter Jones, Rights (Hampshire: The Macmillan Press, 1994),pp. 173–177.

92 David Feldman, “Public Interest Litigation and Constitutional Theory”,Modern Law Review 55 (1992), pp. 44, 46; a recent example of this phenomenonin Irish constitutional law is provided by Sinnott v. AG [2001] 2 Irish Reports545. There, the Irish Supreme Court decided that the State was not under aconstitutional duty to provide primary education for the autistic litigant (Mr.Sinnott). However, due to the wave of public concern generated by the case, theIrish Government felt politically obliged to make a response, and undertook toimprove the care of autistic children and adults despite the fact that it was notmandated by the Supreme Court, see http://www.ireland.com/newspaper/front/2001/0713/fro2.htm.

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getting their voice heard through the channels of normal politics.93

So, rather than disempowering ordinary citizens on matters of highmoral and political importance, as Waldron suggests, judicial reviewcan be a way of empowering citizens to assert, publicise and ulti-mately enforce their rights in the public forum. This is not to suggestthat access to the courts is completely without obstacle for the disad-vantaged in society. No institutional set-up will succeed in allowingevery single worthwhile claim to be heard. The point is simply thatsome of those who may have little or no chance of achieving anylevel of support or recognition, may have greater chances whenbringing a case to the Supreme Court. Of crucial importance is thefact that in the latter, success is not dependent on mobilising wide-spread political support among the populace at large, or powerfulgroups within that populace.

Of course, the force of this point may be resisted by those whobelieve that the courts are above or outside politics. They argue thatconstitutional judicial review provides a legal remedy for violationof a right. As such, it is an alternative to participation in the politicalprocess, rather than an instance of it.94

This view rests on an unduly narrow conception of politics (aswell as a narrow conception of participation), that obscures thecentral role the judiciary play in political life. Litigation under a Billof Rights is a form of political participation, because it is a way ofraising an issue’s prominence in political debate, and having one’sviews heard in the public life of one’s country. Having the abilityto legally enforce rights means that, at the very least, one’s govern-ment may have to justify their policy decisions, and defend thempublicly in court. If legislation is found to be wanting, it may haveto change to accommodate rights-claims. This gives individualsimmense political power to instigate legislative change in an areawhich affects them directly. Moreover, success in the constitutional

93 Joseph Raz, “Rights and Politics”, Indiana Law Journal 71 (1995), pp. 42–44; see also Sandra Fredman, “Judging Democracy: The Role of the Judiciaryunder the HRA 1998”, Current Legal Problems (2001).

94 See e.g., Bellamy and Castiglione, “Review Article: Constitutionalism andDemocracy – Political Theory and the American Constitution”, p. 2039; RichardBellamy, “The Political Form of the Constitution: The Separation of Powers,Rights and Representative Democracy”, Political Studies 44 (1996), p. 435.


court can have considerable impact on the allocation of power andresources in society, and this has obvious political implications.

This leads to the second point of supportive connection betweenparticipation and judicial review. While constitutional judicialreview may indeed restrict the ambit of democratic decision-makingto some degree, it does so for reasons which are congruent withthe reasons why we value participation in the first place. We sawearlier that the point of having participatory rights was to ensurethat people could get their voice heard in the public forum. It wasintrinsically valuable because it gave people a sense of belongingand inclusion, as well as a feeling of being respected as a fullmember in their community. The point I wish to make now isthat whatever restriction of democratic decision-making proceduresresults from judicial review, it does not reflect, or emanate from,a disregard or disrespect for any section of the community, or adenial of any person’s membership. On the contrary, it is justifiedon the basis that the enhanced protection of rights it aims to achieveis a way of respecting individuals, because it protects and respectstheir interests. By enabling people who might otherwise be excludedfrom political life to press claims in the public forum, it may alsohelp to redress a loss of membership citizens may feel, if they areeffectively excluded from or disenfranchised in the normal politicalprocess. This restriction is very different in its justification than onewhich has the aim of diluting the influence of one particular group orparticular persons in society. It justifies a shortfall in participation,in order to secure optimal protection for people’s interests moregenerally.

This connects with Waldron’s claim that respect for people’sautonomy requires a political decision-making mechanism thatallows people to have a say in the decision: there is dignity ininclusion, and insult in exclusion. It should be clear by now thatmy response follows from the priority of the instrumental condi-tion of good government. Individuals have an interest in personalautonomy, which gives rise to a duty in others to respect that interest.We respect people by having due regard for their interests, andwe disrespect them by failing to do so. Similarly, we treat peoplewith dignity by respecting their interests and we insult them byviolating those interests or disregarding their well-being. However,

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it is wrong to equate our interest in autonomy with our interest indemocratic participation. Having the ability to express myself inthe public domain, associate with others and vote in elections isjust one element in my capacity to have an autonomous life. Ourintuitions rebel against the view that this element is of exclusive,or even overriding, importance. In the account presented here, itis one element amongst many which must be balanced in a waythat will provide optimal overall protection of people’s interests,including their interest in autonomy. The dignity of inclusion shouldbe understood to incorporate this broader perspective, rather thanbeing viewed entirely in procedural terms.

Faculty of LawUniversity of LeicesterUniversity RoadLeicester LE1 7RHUKE-mail: [email protected]

(accepted 3 february 2003) - humanities degree

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