This chapter argues that the state should use judicial review to constrain democracy. It identifies several rights that individuals possess, and then defends judicial review as a mechanism for protecting these rights. The chapter then considers the objection that judicial review is undemocratic because it constrains the laws that an electorate or their representatives might adopt. To explore this idea, it distinguishes two arguments in defence of democracy. The first holds that democracy is valuable because it produces good outcomes, and the second holds that democracy is valuable because it treats each member of a society equally when they disagree about which outcomes are good.
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10. Judicial Review and Democracy
William Abel, Elizabeth Kahn, Tom Parr, and Andrew Walton
Chapter
9. Minority Exemptions and Multiculturalism
William Abel, Elizabeth Kahn, Tom Parr, and Andrew Walton
This chapter argues that there is a narrow range of cases in which the state should grant members of minority groups exemptions from laws and policies that apply to others. Social and economic institutions tend to favour the preferences of those who share the majority culture, with the result that a member of a minority group often faces additional burdens in complying simultaneously with the law and the demands of their culture or religion. The chapter draws on this to propose an initial case for minority exemptions. The justification for these exemptions sees them as part of a political programme of multiculturalism, which aims to treat members of minority groups fairly when designing and applying laws and policies. The chapter then looks at the limits of this argument to shed light on the range of cases in which the state should grant such exemptions.
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5. Compliance and enforcement in international law
This chapter assesses why international legal obligations are (or are not) complied with, and how they are (or are not) enforced. It begins by drawing a distinction between laws and norms. The chapter then examines the main explanations for international law compliance put forward by both international law and international relations scholars. These may be broadly grouped into two categories: instrumentalist explanations and normative explanations. The chapter also discusses the concept of state responsibility—that is, the body of rules governing when and how states may be held liable for violations of international law. International law-enforcement is indelibly shaped by the condition of international anarchy. According to the concept of self-help, an injured state may, under certain circumstances, unilaterally take countermeasures against the guilty party. Such measures may include sanctions, though these may also be ordered by the UN Security Council as a collective security measure. The international legal system also increasingly makes use of judicial procedures that approximate those found within states. In this connection, the chapter considers the role of courts and tribunals in adjudicating disputes and promoting compliance with international law.
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3. Debating Politics and Making Laws
This chapter evaluates the institution of the UK Parliament, where parliamentarians have a chance to debate issues of the day and to make laws. It reviews classic arguments about the power of Parliament in relation to the executive, before looking at the role of the House of Lords and the House of Commons. The account is still influenced by the Westminster system of government, whereby the executive in the form of the government is sustained in power by having a majority in the House of Commons. The chapter then considers what Members of Parliament (MPs) and other representatives do in office, and how their behaviour links to other features of the political process, such as public opinion and constituency interests. It also compares other legislatures, such as the Scottish Parliament, with the UK Parliament.