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Judicial Review’s Scope, Foundations and Purposes: Joining the Dots

26 Pages Posted: 21 Feb 2012  

Mark Elliott

University of Cambridge - Faculty of Law

Date Written: April 1, 2011

Abstract

As judicial review has expanded beyond its heartland — namely, control of the exercise by government of statutory powers — its perimeter has become increasingly uncertain. Yet, as techniques of governance evolve — thanks, among other developments, to contractualisation, corporatisation and reliance upon commercial and voluntary entities to provide public services — delineating the extent to which judicial review applies, and should apply, in atypical settings is an increasingly pressing challenge. This article argues that the scope of judicial review cannot be delimited in principled or consistent terms without first confronting the logically prior question: what is judicial review for? It is argued that the normative foundation of judicial review consists in three interlocking factors — respect for legality and the rule of law, the need to control government, and the public interest in good governance — and that, in combination, these factors can be used to determine the appropriate province of judicial review. The analysis developed in parts I and II of the paper is applied, in part III, to several problem areas in which courts have notably struggled to adopt (or at least articulate) a coherent approach when presented with novel questions about the legitimate reach of judicial review.

Keywords: Public Law, Judicial Review, New Zealand, United Kingdom

JEL Classification: K19, K30

Suggested Citation

Elliott, Mark, Judicial Review’s Scope, Foundations and Purposes: Joining the Dots (April 1, 2011). New Zealand Law Review, March 2012; University of Cambridge Faculty of Law Research Paper No. 3/2012. Available at SSRN: https://ssrn.com/abstract=2008856

Mark C. Elliott (Contact Author)

University of Cambridge - Faculty of Law ( email )

10 West Road
Cambridge, CB3 9DZ
United Kingdom

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