The Real Case for Judicial Review

Elgar Research Handbook on Comparative Judicial Review (Erin Delaney & Rosalind Dixon, eds.) (2018 Forthcoming)

Hebrew University of Jerusalem Legal Research Paper No. 17-22

34 Pages Posted: 2 May 2017 Last revised: 1 Jun 2017

See all articles by Alon Harel

Alon Harel

Hebrew University of Jerusalem - Faculty of Law

Adam Shinar

Interdisciplinary Center (IDC) Herzliyah - Radzyner School of Law

Date Written: April 27, 2017

Abstract

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

Suggested Citation

Harel, Alon and Shinar, Adam, The Real Case for Judicial Review (April 27, 2017). Elgar Research Handbook on Comparative Judicial Review (Erin Delaney & Rosalind Dixon, eds.) (2018 Forthcoming), Hebrew University of Jerusalem Legal Research Paper No. 17-22, Available at SSRN: https://ssrn.com/abstract=2959025

Alon Harel

Hebrew University of Jerusalem - Faculty of Law ( email )

Mount Scopus
Mount Scopus, IL 91905
Israel
97 22 588 2582 (Phone)
97 22 582 3042 (Fax)

Adam Shinar (Contact Author)

Interdisciplinary Center (IDC) Herzliyah - Radzyner School of Law ( email )

P.O. Box 167
Herzliya, 46150
Israel

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