Waldron and Dworkin on Judicial Review: Adversaries or Allies?

In the debate about the legitimacy of judicial review of legislation two scholars have been especially prominent: Jeremy Waldron and Ronald Dworkin. Typically, these two scholars are characterized as sustaining opposing opinions regarding the legitimacy of judicial review. Interestingly, however, both have made their respective opinions turn on the same two issues: firstly, on “democraticness” and secondly, on the prevalence of disagreement about values and rights. This raises the question why and where, despite sharing these premises, they part ways when it comes to assessing the consequences they have regarding institutional design. I argue that when viewed from these two angles – democracy and disagreement – the differences of their views on judicial review are, if they exist at all, minimal. I conclude that although neither of them can provide conclusive arguments for or against the institutionalization of judicial review, their debate yields remarkable insights in another domain.