Why Judicial Review?

Abstract

Despite the flourishing of judicialisation of rights across the world, scepticism is not in short supply. Critiques range from concerns over the democratic legitimacy and institutional competence of courts to the effectiveness of rights protections. This article takes a step back from this debate and asks why should we establish or persist with judicial review. For reasons of theory, methodology, and practice, it argues that closer attention needs to be paid to the motivational and not just mitigatory purposes for judicial review. The article examines a range of epistemological reasons (the comparative advantage of the judiciary in interpretation) and functionalist reasons (the attainment of certain socio-political ends) for judicial review and considers which grounds provide the most convincing claims in theory and practice.