Fairness And Legality Of The Supreme Value Of Liberty

1399 WordsAug 26, 20166 Pages
Many democratic countries have the process of strong judicial review, which allows courts to override decisions made by a democratic government on the ground of unconstitutionality. This judicial-review process raises controversial debates about the legitimacy and appropriateness of the courts’ power. The aim of this dissertation is to approach this debate from the viewpoint of republicanism, which holds Neo-Roman liberty, understood as non-domination, as its paramount value. From this point of view, it asks the question whether strong judicial review is justified in the sense that it is compatible with the republican supreme value of liberty or not. In line with this question, this dissertation proposes the conditional argument that the…show more content…
The third part supports the use of the republican view by arguing that it has two advantages that contemporary mainstream legal-based views do not have. The fourth part starts to assess the current republican arguments in favor of and against strong judicial review and concludes that both of them have limitations. This conclusion leads to the arguments in the final part that there are no absolute answers from the republican point of view on the topic of judicial review. Rather, the answer should be conditionalized depending on the type of society. The result of these arguments is the conclusion about the three cases mentioned in the previous paragraph. 2. Strong judicial review and its controversy The term ‘strong judicial review’ can be understood by dividing it into two terms. The term ‘judicial review’ refers to the process that allows courts (1) to have substantial independence from other agents in political system, and (2) to be able to address and settle questions of constitutionality (in a constitutional or common law tradition). The term ‘strong’ refers to the specific type of process that holds that the provided resolutions from the courts are regarded as binding on all departments of government including legislative enactments (Michelman, 2004: pp.1407-1408). Theoretically, the ‘strong power’ of judges can be divided into two levels: the normal strong power
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