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Judicial Review and Public Reason

COMPARATIVE JUDICIAL REVIEW, Rosalind Dixon, Erin F. Delaney, eds, Edward Elgar, UK, 2017, Forthcoming

Sydney Law School Research Paper No. 17/38

17 Pages Posted: 10 May 2017  

Wojciech Sadurski

The University of Sydney Law School

Date Written: May 8, 2017

Abstract

This is an early draft of a chapter to be published in a volume on Comparative Judicial Review, edited by Rosalind Dixon and Erin F. Delaney. In my chapter, I begin by introducing the general idea of Public Reason as a legitimacy-conferring device, and move on to discuss its application to judicial review through a motive-oriented scrutiny. I then consider (and rebut) the argument that such scrutiny runs into a difficulty of discerning the motives, and subsequently I reflect on the ways in which “harmonizing” the motive-and effects-oriented scrutiny may be useful to a public reason conception of judicial review. Further, I offer my reflections regarding the argument that Public Reason-based scrutiny troublingly amplifies the clash of the judiciary with the legislature. I then provide a case study of Public Reason-based judicial review of the laws on the relationship between state and religion. Finally, in the concluding part, I bring these different themes together, and suggest an agenda for further research.

Keywords: Public reason, judicial review, legitimacy, legislation, freedom of religion, John Rawls, Aharon Barak, Canada, United States, Germany

JEL Classification: K10, K30

Suggested Citation

Sadurski, Wojciech, Judicial Review and Public Reason (May 8, 2017). COMPARATIVE JUDICIAL REVIEW, Rosalind Dixon, Erin F. Delaney, eds, Edward Elgar, UK, 2017, Forthcoming; Sydney Law School Research Paper No. 17/38. Available at SSRN: https://ssrn.com/abstract=2965225

Wojciech Sadurski (Contact Author)

The University of Sydney Law School ( email )

New Law Building, F10
The University of Sydney
Sydney, NSW 2006
Australia

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