Are There Any Limits to Justiciability?

Abstract

Justiciability - which in the US is dealt within the context of the political question doctrine - deals with the boundaries of law and adjudication. Its concern is with the question of which issues are susceptible to being the subject of legal norms or of adjudication by a court of law. The concern of justiciabilty is with the province within which the law and the courts properly function, irrespective of whether the courts take an activist approach within this province or not. The Article uses tools of comparative law to discuss a number of jurisprudential and constitutional aspects central to the issue of justiciability. The Article offers distinctions between the normative justiciability of a legal question and its institutional justiciability; and between material institutional justiciability and organic institutional justiciability. The Article argues that in general, all legal questions are justiciable from a normative standpoint. A question that is justiciable from a normative standpoint ought also - save in, perhaps, the most exceptional circumstances - be institutionally justiciable (both in the material and organic sense). From this standpoint, it is argued in the Article that doctrines in the US and Israel relating to political questions or judicial review of parliamentary matters are problematic to the extent that they limit the institutional justiciability of questions that, normatively, are fully justiciable. The normative Justiciability of a question is not, however, a precondition to its being institutionally justiciable. There can be questions whose normative justiciability is deficient but which will still be institutionally justiciable.

Keywords: Comparative Law, Israeli Constitutional Law, Justiciability, Political Question Doctrine, Judicial Activism

JEL Classification: K10, K19, K20, K29, K30, K39, K40