The Real Case for Judicial Review
Elgar Research Handbook on Comparative Judicial Review (Erin Delaney & Rosalind Dixon, eds.) (2018 Forthcoming)
34 Pages Posted: 2 May 2017 Last revised: 1 Jun 2017
Date Written: April 27, 2017
Constitutional theory is obsessed with an attempt to provide an adequate justification for judicial review. In previous work, one of us argued that the traditional justifications for judicial review are flawed and proposed an alternative framework. Contrary to the traditional view, judicial review is not aimed (exclusively) to protect rights, democracy or bring about justice. Instead, it facilitates the hearing of (justified or unjustified) grievances. This chapter examines to what extent contemporary constitutions can be explained in terms of this framework. Seeking to answer that question, we provide a comparative analysis of the ways in which different systems of judicial review succeed in protecting the right to a hearing.
We examine three components of the right to a hearing: the opportunity to raise a grievance, willingness to address the grievance and the willingness to reconsider the decision giving rise to the conflict. We establish that most systems of judicial review satisfy the first and the second conditions but fail to satisfy the third condition.
Our framework responds to proposals to de-adjudicate and politicize the protection of constitutional rights. While much constitutional work can be done outside courts, the problem is that such work fails to account for the intrinsic value of adjudication. It fails to account for the right of every person to raise his grievance and force the state to deliberate and reconsider the soundness of its decision. The political process is inferior as it does not provide an opportunity for an aggrieved party to be provided with a hearing.
Keywords: constitutional law, comparative constitutional law, judicial review, right to a hearing
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