The republican core of the case for judicial review

In this paper, I argue that Philip Pettit’s republican conception of democracy offers the basis of a compelling normative justification for the institution of judicial review that is distinctive from the mainstream legal constitutionalist justifications and (contra Richard Bellamy), that accounts for the main objections of political constitutionalists. The paper seeks to connect this general republican case for judicial review with contemporary “non-epistemic” defenses of the institution, including Mattias Kumm’s “Socratic contestation” defense, Dixon's democratic responsiveness defense, and the Harel/Shinar “right to a hearing” defense. It also considers whether this republican argument makes a case for weak-form review only, or whether it extends in principle to judicial supremacy.

The real case for judicial review

Most justifications for judicial review are instrumental, seeking to ground it in the better protection of rights, democracy or to bring about justice. While these aims are laudable, they are also unverifiable. What is needed, then, is a non-instrumentalist argument to support judicial review. That argument is that judicial review facilitates the hearing of (justified or unjustified) grievances. I examine to what extent contemporary constitutions can be explained in terms of this framework. Seeking to answer that question, I provide a comparative analysis of the ways in which different systems of judicial review succeed in protecting the right to a hearing. I examine three components of the right to a hearing: the opportunity to raise a grievance, willingness to address the grievance and the willingness to reconsider the decision giving rise to the conflict.

Beyond Juristocracy and Legislative Authoritarianism: On the criteria governing the legitimate institutionalization of the relationship between courts and legislatures

The idea of Socratic contestation provides not only a basic account of the point of judicial review but also guides its appropriate institutionalization. The distinction between “strong” and “weak” judicial review is undercomplex. Instead a wider range of variables needs to be considered. This piece discusses what these variables are, how they matter and what this implies for the adequate institutionalization of the relationship between the legislature and the judiciary beyond juristocracy and legislative authoritarianism.