Judicial Reference to Community Values – A Pointer Toward Constitutional Juries?

1st International Congress on Constitutional Law and Political Philosophy, Belo Horizonte, Brazil, 2014

Posted: 22 May 2015

See all articles by Eric Ghosh

Eric Ghosh

University of New England, Australia

Date Written: November 7, 2014

Abstract

The practice of justifying judicial decisions by reference to consensual community values, which are distinguished from ordinary public opinion, has occurred in a number of jurisdictions and has been defended by prominent scholars. It provides a response to concern about the democratic legitimacy of judicial decision-making especially in constitutional cases. While it has also been critiqued for exacerbating concern about democratic legitimacy, the community values approach has proved resilient and merits further exploration. This chapter takes seriously its aim of promoting democratic legitimacy in constitutional decisions by connecting those decisions to the community’s values. Some of the democratic theorists referred to by adherents of the community values approach are also helpful. It is suggested that community values be understood as majority informed opinion. It is finally argued that the aim of connecting constitutional review to the community’s values in order to promote democratic legitimacy in bill-of-rights cases might be realised if constitutional juries are introduced.

Keywords: judicial review, democratic legitimacy, legal reasoning, community values, constitutional jury

Suggested Citation

Ghosh, Eric J., Judicial Reference to Community Values – A Pointer Toward Constitutional Juries? (November 7, 2014). 1st International Congress on Constitutional Law and Political Philosophy, Belo Horizonte, Brazil, 2014, Available at SSRN: https://ssrn.com/abstract=2608780

Eric J. Ghosh (Contact Author)

University of New England, Australia ( email )

Armidale
Armidale, New South Wales 2351
Australia

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