September 2006, Volume 92, Issue 5
The Right to Judicial Review
by Yuval Eylon and Alon Harel
92 Va. L. Rev. 991 (2006)
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Judicial review is typically justified on consequentalist grounds, namely that it is conducive to the efficacious protection of rights. This paper disputes this popular explanation for judicial review and argues that judicial review is based on a "right to voice a grievance" or a "right to a hearing" – a right designed to provide an opportunity for the victim of infringement to challenge it. The state must justify, and in appropriate cases, reconsider, any infringement in light of the particular claims and circumstances of the victims of the infringement. This right-based justification implies that judicial review is justified even if it is found that it is ultimately detrimental to the efficacious protection of rights. Last, it is argued that the right to a hearing is a participatory right and consequently that judicial review does not conflict with the right to equal democratic participation.
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