The Democratic Legitimacy of Judicial Review Beyond the State:           Normative Subsidiarity and Judicial Standards of Review

Judicial review of the acts of national governments by courts beyond the state raises the question of the democratic legitimacy of such review. In this paper, I outline a position that identifies the ideal of self-government as the core of democracy and argue that in order to be democratically legitimate, judicial review by international courts must be guided by the principle of “normative subsidiarity.” Normative subsidiarity recognizes the legitimate exercise of decision-making authority by national governments in specific contexts as an appropriate instantiation of self-government at that level and, as a result, requires international courts to exercise some deference through appropriately defined judicial standards of review. While a number of international courts have already adopted appropriately deferential standards, I argue that all courts and tribunals engaged in judicial review beyond the state need to address the demands of normative subsidiarity if they want to enhance their specifically democratic legitimacy.