Judicial Power in Normative, Institutional and Doctrinal Perspective: A Response to Professor Finnis

Abstract

In this response to Professor John Finnis's recent paper on judicial power, I argue that he is insufficiently attentive to three crucial matters — concerning normative, institutional and doctrinal considerations — that ought to inform analysis of both the proper limits of judicial power and the extent to which judicial practice is respectful of those limits. I also argue that while it is helpful to distinguish between these three issues, the distinctions between them are necessarily porous. The central concern of my paper is to address the nature of the debate concerning judicial power, and to consider the extent to which Finnis’s analysis adequately engages with the essential components of that debate. I do not therefore set out to prescribe different answers from those arrived at by Finnis (although I do disagree, as will be at least implicit, with some of his conclusions). Rather, I argue in favour of a mode of analysis that is more open to the contestability of the normative issues in play; that takes greater account of the way in which underlying normative questions may play out differently in different institutional contexts; and which is more attentive to the doctrinal reality of judicial practice.

Keywords: judicial power, judicial review, separation of powers, constitutional law, administrative law

JEL Classification: K00, K10, K19, K30, K39, K40