Judicial Review in Administrative Governance: A Theoretical Framework for Comparative Analysis
Forthcoming, Judicial Review in the Administrative State (Ernst Hirsch Ballin, Saskia Lavrijssen, and Jurgen de Poorter, eds., T.M.C. Asser/Springer)
18 Pages Posted: 27 Feb 2019
Date Written: January 15, 2019
This chapter explores elements of a theoretical framework to better understand judicial review in administrative governance from a comparative perspective. It proceeds from the premise that administrative governance cannot sustain itself without maintaining a legitimating connection to the trias politica—legislative, executive, and judicial—in some historically or legally recognizable sense. Judicial review, together with political oversight by legislative and executive actors, serve as complementary mechanisms of mediated legitimacy in this sense. In addition, from a principal-agent perspective, judicial review can also be understood as reducing asymmetric information risks and the so-called agency-cost problem. To understand these functions more robustly, however, a historical, constructivist and genealogical approach is also needed. Such an approach allows us to understand the role played by judicial review in reconciling tensions between three ideal types of rule in administrative governance: democracy, technocracy, and juristocracy. Building on this theoretical foundation, we can better analyse, in comparative terms, how different polities have responded to several basic questions regarding judicial review in administrative governance: ‘which’ (judge/forum), ‘whether’ (preclusion), ‘when’ (admissibility/timing), ‘who’ (standing), ‘what’ (scope/depth/intensity of review), and ultimately ‘why’, i.e., the overarching purpose of judicial review in relation to sound regulatory decision making, democratic politics and the protection of fundamental rights in administrative governance.
Keywords: administrative governance; agency-cost problem; asymmetric information; constructivism; democracy; dualité de juridiction, expertise; genealogical method; judicial review; juristocracy; mediated legitimacy; principal-agent theory; process review; regulation; rule of law; technocracy; trias politica
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