Justification, Calibration and Substantive Judicial Review: Putting Doctrine in its Place

9 Pages Posted: 18 Sep 2013 Last revised: 19 Sep 2013

See all articles by Mark Elliott

Mark Elliott

University of Cambridge - Faculty of Law

Date Written: September 18, 2013

Abstract

This working paper is the precursor to a chapter I am writing for an edited collection on substantive judicial review. In this working paper, I argue against the two dominant schools of thought in this area, according to which substantive review is either bifurcated (by reference to the reasonableness and proportionality doctrines) or the preserve only of the proportionality doctrine. I go on to argue that the existing debate places undue emphasis upon doctrinal considerations, and that a better approach is to place the concept of justification centre-stage. I then develop a notion of justification around two ideas of deference, which are concerned respectively with the allocation to the decision-maker of a justificatory burden and the determinination by the court of whether that burden has been discharged.

Keywords: administrative law, constitutional law, judicial review, reasonableness, proportionality, deference, human rights

JEL Classification: K00, K10, K19, K20, K29, K30, K39

Suggested Citation

Elliott, Mark C., Justification, Calibration and Substantive Judicial Review: Putting Doctrine in its Place (September 18, 2013). University of Cambridge Faculty of Law Research Paper No. 33/2013. Available at SSRN: https://ssrn.com/abstract=2327531 or http://dx.doi.org/10.2139/ssrn.2327531

Mark C. Elliott (Contact Author)

University of Cambridge - Faculty of Law ( email )

10 West Road
Cambridge, CB3 9DZ
United Kingdom

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