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Civic Liberalism and the “Dialogical Model” of Judicial Review

  • Colin Farrelly
Chapter

Abstract

Consider the following scenarios which could occur in any affluent, liberal democratic society:

Scenario 1: Intelligence gathering operatives believe that there is a good chance that the country will be the target of a terrorist attack within the next 48 hours. The exact nature of the attack is unknown, but there is good reason to believe that the risk of attack is significant. Military personnel and equipment have been stationed at airports and some airlines have cancelled flights. Much debate takes place in the media concerning how much is being done to guard against this possible attack. Critics of the existing government claim that more should be done. One prominent critic complains that “citizens should not have to be fearful of such attacks in their own homes, schools or airports; the government needs to do more to eliminate these threats!”

Keywords

Distributive Justice Liberal Democracy Judicial Review Direct Democracy Moral Demand 
These keywords were added by machine and not by the authors. This process is experimental and the keywords may be updated as the learning algorithm improves.

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Notes

  1. 1.
    Russell Hardin, Indeterminacy and Society (Princeton, NJ: Princeton University Press, 2003), p. 103.Google Scholar
  2. 4.
    See John Rawls, A Theory of Justice (Cambridge, MA: Harvard University Press, 1971) and Political Liberalism (New York: Columbia University Press, 1993).Google Scholar
  3. 5.
    See Robert Nozick, Anarchy, State and Utopia (New York: Basic Books, 1974).Google Scholar
  4. 6.
    The literature on state neutrality is extensive. A partial list of its main proponents include Rawls, A Theory of Justice and Political Liberalism; Nozick, Anarchy, State and Utopia; Bruce Ackerman, Social Justice and the Liberal State (New Haven: Yale University Press, 1980);Google Scholar
  5. Ronald Dworkin, A Matter of Principle (Cambridge, MA: Harvard University Press, 1985);Google Scholar
  6. Brian Barry, Justice as Impartiality (Oxford: Oxford University Press, 1995).Google Scholar
  7. 7.
    See Michael Walzer, Spheres of Justice (New York: Basic Books, 1983);Google Scholar
  8. David Miller, Principles of Social Justice (Cambridge, MA: Harvard University Press, 1999).Google Scholar
  9. 8.
    See Walzer, Spheres of Justice; Miller, Principles of Social Justice; Serena Olsaretti (ed.), Desert and Justice (Oxford: Oxford University Press, 2003).Google Scholar
  10. 10.
    See Cécil Fabre, Social Rights Under the Constitution (Oxford: Oxford University Press, 2000);CrossRefGoogle Scholar
  11. Martha Nussbaum, Women and Human Development: The Capabilities Approach (Cambridge: Cambridge University Press, 2000);CrossRefGoogle Scholar
  12. Stuart White, The Civic Minimum (Oxford: Oxford University Press, 2003).CrossRefGoogle Scholar
  13. 12.
    David Gauthier, Morals by Agreement (New York: Oxford University Press, 1986).Google Scholar
  14. 16.
    Proponents of the dialogical model of judicial review include Peter Hogg and Allison Bushell, “The Charter Dialogue Between Courts and Legislatures”, 35(1) Osgoode Hall Law J. 75–124 (1997); and Kent Roach, The Supreme Court on Trial: Judicial Activism or Democratic Dialogue (Toronto: Irwin Law, 2001).Google Scholar
  15. 17.
    See Bork, The Tempting of America: The Political Seduction of the Law (New York: Simon and Schuster, 1990), pp. 139–143.Google Scholar
  16. 20.
    Rawls, The Law of Peoples (Cambridge, MA: Harvard University Press, 1999), p. 6.Google Scholar
  17. 22.
    K. Rawls, A Theory of Justice (2nd edn) (Oxford: Oxford University Press, 1999), p. 83.Google Scholar
  18. 23.
    Some have tried to remedy this deficiency in Rawls’s account by adding health care to the list of things governed by the principle of fair equality of opportunity. See, for example, Norman Daniels’s Just Health Care (Cambridge, MA: Cambridge University Press, 1985). Rawls actually endorses Daniels’s strategy in Political Liberalism. However, such a strategy is rife with problems as such a cost-blind approach to health care is ill-equipped to deal with the problem of prioritizing limited resources in health care. For a discussion of these concerns, see Dan Brock, “Broadening the Bioethics Agenda”, 10 Kennedy Inst. Ethics J. 21–38 (2000).CrossRefGoogle Scholar
  19. 28.
    Jeremy Waldron, “Judicial Review and the Conditions of Democracy”, 6(4) J. Pol. Phil. 337–338 (1998). Also see Waldron’s Law and Disagreement (Oxford: Oxford University Press, 1999).CrossRefGoogle Scholar
  20. 30.
    Stephen Holmes and Cass Sunstein, The Costs of Rights: Why Liberty Depends on Taxes (New York: W.W. Norton & Company, 1999), p. 97.Google Scholar
  21. 34.
    Dworkin, A Matter of Principle (Cambridge, MA: Harvard University Press, 1985), p. 69.Google Scholar
  22. 37.
    See Scanlon, What We Owe to Each Other (Cambridge, MA: Harvard University Press, 1998). Scanlon describes the subject matter of judgments of right and wrong as:Google Scholar
  23. 42.
    Ronald Dworkin, Sovereign Virtue (Cambridge, MA: Harvard University Press, 2000), p. 351.Google Scholar
  24. 44.
    See J. S. Mill, On Liberty (Harmondsworth: Penguin, 1982).Google Scholar
  25. 48.
    This vision of the self is endorsed, for example, by Michel Sandel in Democracy’s Discontent and by David Miller in On Nationality (Oxford: Oxford University Press, 1995).Google Scholar
  26. 63.
    Ronald Dworkin, Freedom’s Law: The Moral Reading of the American Constitution (Cambridge, MA: Harvard University Press, 1996), p. 345.Google Scholar

Copyright information

© Colin Farrelly & Lawrence B. Solum 2008

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  • Colin Farrelly

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