Responsive Judicial Review: Democracy and Dysfunction in the Modern Age

by Rosalind Dixon

Overview

Democratic dysfunction can arise in both 'at risk' and well-functioning constitutional systems. It can threaten a system's responsiveness to both minority rights claims and majoritarian constitutional understandings. Responsive Judicial Review aims to counter this dysfunction-by encouraging courts to orient choices about constitutional construction toward promoting democratic responsiveness, or countering forms of democratic monopoly, blind spots, and burdens of inertia. At the same time, the idea of 'responsive' judicial review encourages courts to engage with their own distinct institutional position and potential limits on their own capacity and legitimacy. This translates into courts embracing a 'weakened' approach to judicial finality, or 'weak-strong' judicial review and remedies, as well as a nuanced approach to the making of judicial implications, a 'calibrated' approach to judicial scrutiny or judgments about proportionality. Dixon further argues that courts should look for ways to increase the legitimacy of their decisions-through careful choices about their framing, and the timing and selection of cases. Nevertheless, the idea of responsive judicial review is explicitly normative and aspirational: it aims to provide a blueprint for how courts should think about the practice of judicial review as they strive to promote and protect democratic constitutional values.

Product Details

ISBN-13:	9780198938910
Publisher:	Oxford University Press
Publication date:	08/08/2025
Series:	Oxford Comparative Constitutionalism
Pages:	320
Product dimensions:	6.10(w) x 9.25(h) x 0.67(d)

About the Author

Rosalind Dixon, Scientia Professor of Law, University of New South Wales

Rosalind Dixon is a leading global expert on comparative constitutional law, design, and democracy. She is Scientia Professor of Law at UNSW Sydney, and a former assistant professor at the University of Chicago Law School, visiting professor at Columbia Law School, Harvard Law School, and the National University of Singapore. She has served as co-president of the International Society of Public Law, and is a member of the Australian Academy of Law and Academy of Arts and Social Sciences.

Table of Contents

1. Introduction2. Constitutions and Constructional Choice3. Defining Democracy and Democratic Dysfunction4. The Scope and Intensity of Responsive Judical Review5. Democratic Dsyfunction and the Effectiveness of Responsive Review6. Risks to Democracy: Reverse Inertia, Democratic Backlash, and Debilitation7. Towards Strong-Weak - Weak-Strong Judical Review and Remedies8. A Responsive Judical Voice: Building a Court's Legitimacy9. Conclusion: Towards a New Comparative Political Process Theory

Editorial Reviews

"In this masterful work, Rosalind Dixon returns judicial representation-reinforcement to center stage in our understanding of judicial review. Her theory of how judicial intervention can counteract democratic dysfunction is rooted in rich examples and a breadth and depth of comparative expertise that reflects her position as a leading scholar in the field. What makes this book of exceptional importance is its close attention to the opportunities and challenges in operationalizing responsive judicial review; Dixon speaks directly to judges in outlining how constitutional courts might function as democracy-protecting and democracy-promoting. In presenting a theory of judicial review alongside guidance for its implementation, Dixon reanimates our aspirations for courts as valued participants in achieving a society committed to democratic responsiveness." — Erin F. Delaney, Professor of Law, Northwestern University Pritzker School of Law

"Comprehensive in its sweep, systematic in its analysis, and yet distinctive in its focus, Rosalind Dixon's insightful book is a major contribution to the growing comparative literature on political process approaches to constitutional review." — Stephen Gardbaum, Stephen Yeazell Endowed Chair in Law, UCLA

"Professor Dixon has written a landmark book on the theory of judicial review. Using excellent examples drawn from around the world, she shows how courts should modulate their decision-making in response to legal, social, and political context. Her book will become the go-to resource for the field, on which all future work will build." — David Landau, Mason Ladd Professor and Associate Dean for International Programs, Florida State University College of Law

From the Publisher