Judicial Reference to Community Values: A Pointer Towards Constitutional Juries?

Abstract

The practice of justifying judicial decisions by reference to consensual community values, which are distinguished from ordinary public opinion, has occurred in a number of jurisdictions and has been defended by prominent scholars. It provides a response to concern about the democratic legitimacy of judicial decision-making especially in constitutional cases. While it has also been critiqued for exacerbating concern about democratic legitimacy, the community values approach has proved resilient and merits further exploration. This chapter takes seriously its aim of promoting democratic legitimacy in constitutional decisions by connecting those decisions to the community's values. Some of the democratic theorists referred to by adherents of the community values approach are also helpful in understanding how this aim could be achieved. Achieving this aim would depend, for instance, upon understanding community values as informed majority opinion. It is finally argued, drawing on experience with deliberative polling, that this aim might be realised if constitutional juries are introduced.