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Harel, Alon; Shinar, Adam --- "The real case for judicial review" [2018] ELECD 761; in Delaney, F. Erin; Dixon, Rosalind (eds), "Comparative Judicial Review" (Edward Elgar Publishing, 2018) 13

Book Title: Comparative Judicial Review

Editor(s): Delaney, F. Erin; Dixon, Rosalind

Publisher: Edward Elgar Publishing

ISBN: 9781788110594

Section: Chapter 2

Section Title: The real case for judicial review

Author(s): Harel, Alon; Shinar, Adam

Number of pages: 23

Abstract/Description:

Rather than considering judicial review as an overarching mechanism to protect rights, democracy, or justice, or to promote other desirable ends, this chapter examines which institutional features facilitate the realization of non-instrumentalist concerns underlying judicial review. After first surveying various instrumentalist theories, the authors argue that these theories fail because they rest upon empirical conjectures which cannot be substantiated. They then defend a non-instrumentalist theory of judicial review: Individuals have a right to a hearing if there is an alleged rights violation, and it is the protection of the right to a hearing that ultimately justifies judicial review. Finally, the chapter aims to understand how the right to a hearing is implemented in various jurisdictions. It thus draws on examples from the United States, Israel, India, Columbia, and South Africa to explore the importance of three aspects of the right to a hearing: the opportunity to voice a grievance, the opportunity to be provided with a justification for a decision, and the duty to reconsider the initial decision giving rise to the grievance.