Contextual Review: The Instinctive Impulse and Unstructured Normativism in Judicial Review of Administrative Action
31 Pages Posted: 12 Sep 2019 Last revised: 30 Jul 2020
Date Written: September 4, 2019
Contextual review is a judicial method that rejects doctrinal or categorical methods to guide judicial supervision of administrative action. Judges are invited to assess the circumstances in the round without any doctrinal scaffolding to control the depth of scrutiny; in other words, intervention turns on an instinctive judicial impulse or overall evaluative judgement. This article identifies and explains the various instances where this method is deployed in judicial review in Anglo-Commonwealth administrative law. The efficacy of this style of review is also evaluated, using rule of law standards to frame the analysis. Its increasing popularity is a worrying turn, in part because its reliance on unstructured normativism undermines the rule of law.
Keywords: Judicial review, contextual review, instinctive impulse, unstructured normativism, rule of law, depth of scrutiny
JEL Classification: K1, K10, K30, K40
Suggested Citation: Suggested Citation