Democracy is Not Enough: Rights, Proportionality and the Point of Judicial Review

Abstract

The principle of proportionality has become a central structural feature of rights adjudication in liberal democracies worldwide. One of the most pressing issues such a practice raises is institutional: What reasons are there to believe that courts are better positioned institutionally then politically accountable actors, if all they are guided by are the abstract criteria provided by the proportionality test? And apart from securing better outcomes, is the empowerment of courts with such a task, inevitably involving engagement with contentious empirical and moral questions and often requiring a judgment on difficult trade-offs compatible with democracy? The essay relates what I take to be the strongest arguments against judicial review made by Waldron and Bellamy, among others, to the more specific practice of proportionality based rights adjudication. The function of proportionality based judicial review, I argue, is to institutionalize a practice of Socratic contestation. The essay makes two strong claims about that practice. First, there are good reasons to expect that the institutionalization of such a practice is likely to improve outcomes. Proportionality-adjudicating-courts have an important role to play to help remedy pathologies that occasionally plague political decision-making, even in mature liberal democracies. The essay highlights a) the vice of thoughlessness based on tradition, convention and preference b) reasons relating to the good, that do not respect the limits of public reason c) hyperbole and ideology: legitimate concerns are invoked, but a lack of concrete engagement and grounding in reality leads to the enactment of measures that inappropriately expand the power of public authorities d) the capture of the political process by rent-seeking interest groups. Second, judicial review is not just legitimate. The idea of competitive elections grounded in an equal right to vote and the rights based practice of Socratic constestaion are complementary basic institutional commitments of liberal democratic constitutionalism. Liberal democracy without judicial review would be incomplete and deficient.