A defense of the majority principle in the context of debates on democratic legitimacy of judicial review of legislation

Abstract

The main objective of this article is to promote a critique to the argument according to which the majority principle presents risks to democracy, usually employed by the advocates of the democratic legitimacy of the judicial review of legislation. In a democratic society, where the principles of freedom and equality are adopted, the majority principle provides a fair criterion to identify the points of view that ought to prevail at the end of collective processes of decision-making. The rules that require unanimity and qualified majority are insufficient to right the alleged injustices produced by the majority principle, by virtue of the difficulties they face to be enforced, the absence of real protection for the minorities and the internal contractions they show. Although it is possible to imagine a legal system in which the majority principle makes the existence of a tyranny or dictatorship of the majority possible, to assume that, in this context, judges will necessarily form the group of defenders of minorities’ rights is to promote a selective application of the equality principle.