Legitimacy – not justice – and the case of judical review

This paper argues that the ‘political constitutionalists’ – along with the leading lights of the Judicial Power Project – are right that what matters in this debate is legitimacy, not justice. By that I mean that the case for (or against) judicial review ought to be made on the basis of (in Bellamy’s phrase) its ‘legitimating rather than its epistemic properties’.

I think the political constitutionalists, however, have tended to make their argument against judicial review based on a caricature of the legal constitutionalists’ case – that the latter imagine judges operating like deliberators in the Rawls' original position.

There is a significant shift – a republican shift, I suggest – in the post-Political Liberalism John Rawls, whereby legitimacy, not justice, comes to take centre stage. 'Reciprocity' replaces the original position. I think the theoretical case for judicial review, if it can be made, must be made from within this democratic – late Rawls/republican – frame.