Demokrati och lagprövning - Om rättfärdigandet av en positiv respektive negativ inställning till lagprövning

Abstract

Democracy and judicial review – on the justification of a positive and a negative attitude respectively towards judicial review.

This article focuses on the justification of a positive and a negative attitude respectively towards judicial review. The analysis is performed by textual analysis of the texts of four authors with different opinions on the subject matter: Robert Dahl and Jeremy Waldron who have a negative attitude towards judicial review, and Erwin Chemerinsky and Ronald Dworkin who have a positive attitude. A theoretical model is used for the analysis, which consists of different dimensions of the issue of democracy and judicial review. The study shows that there are important differences in the democratic values underpinning a positive and a negative attitude. There are differences of opinion on the balance between democracy as; process or substance, rule by the broad mass of the people or rule by an elite, the spirit of the community or the rights of the individual. The analysis also points out that there are differences concerning the comprehension of the important democratic concepts of liberty and equality.