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Democracy, the Courts and the Making of Public Policy

Daniel Butt
Publication date: 
Thu, 28 Jun 2007

Quite where the boundaries of justifiable judicial social policymaking lie will depend on one’s own understanding of the nature and value of democracy. Most will agree that there is value to policy outcomes possessing democratic legitimacy, but that this should not mean that the rights and interests of minorities are routinely ignored.

A range of different answers to the legitimacy and justifiability of judicial policymaking have been advanced. When judges seek to make public policy, they must be mindful of the instrumental need to work within popular understandings of legitimate judicial involvement. But they will also have to come to conclusions on these issues themselves.