Comparative Judicial Review
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Comparative Judicial Review

Edited by Erin F. Delaney and Rosalind Dixon

Constitutional courts around the world play an increasingly central role in day-to-day democratic governance. Yet scholars have only recently begun to develop the interdisciplinary analysis needed to understand this shift in the relationship of constitutional law to politics. This edited volume brings together the leading scholars of constitutional law and politics to provide a comprehensive overview of judicial review, covering theories of its creation, mechanisms of its constraint, and its comparative applications, including theories of interpretation and doctrinal developments. This book serves as a single point of entry for legal scholars and practitioners interested in understanding the field of comparative judicial review in its broader political and social context.
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Chapter 2: The real case for judicial review

Alon Harel and Adam Shinar

Abstract

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.

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