TITLE

The democratic legitimacy of judicial review beyond the state: Normative subsidiarity and judicial standards of review

AUTHOR(S)
von Staden, Andreas
PUB. DATE
October 2012
SOURCE
International Journal of Constitutional Law;Oct2012, Vol. 10 Issue 4, p1023
SOURCE TYPE
Academic Journal
DOC. TYPE
Article
ABSTRACT
Judicial review of the acts of national governments by courts beyond the state raises the question of the democratic legitimacy of such review. In this article, I outline a position that identifies the ideal of self-government as the core of democracy and argue that in order to be democratically legitimate, judicial review by international courts must be guided by the principle of “normative subsidiarity.” Normative subsidiarity recognizes the legitimate exercise of decision-making authority by national governments in specific contexts as an appropriate instantiation of self-government at that level and, as a result, requires international courts to exercise some deference through appropriately defined judicial standards of review. While a number of international courts have already adopted appropriately deferential standards, I argue that all international courts and tribunals engaged in judicial review must address the demands of normative subsidiarity if they want to enhance their specifically democratic legitimacy.
ACCESSION #
83746067

 

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