Abstract
The highest courts in both Canada and South Africa have expressed themselves in favour of an approach of deference as respect in the review of administrative action. The notion of deference as respect derives from the thinking of David Dyzenhaus, who has developed a theory of democracy in support of this approach to judicial review. Dyzenhaus’ model of review attempts to steer clear from the problems he associates particularly with positivism and liberalism. Dyzenhaus’ model of review furthermore attempts to allow space for the administration to play a significant role in giving effect to democratic values, on the understanding that all such decisions need to be reasonably justifiable. In this article the views of Dyzenhaus are contrasted with those of Jacques Derrida, especially insofar as the latter has reflected on the relation between law and justice, as well as concepts such as the gift and democracy. The argument developed in this article is that Dyzenhaus’ model of review, despite its many positive features, needs to be rethought with reference to the perfect gift, unconditional justice and democracy to come. Such a rethinking is required because of the limited conception of justice – as simply ‘our’ justice – in Dyzenhaus’ model. 
Highlights
What justifies the judicial review of administrative action and how should such review be exercised? These two questions have plagued administrative law theorists for many years
Dyzenhaus describes himself as an anti-positivist, proceduralist democrat. He chooses anti-positivism against positivism; a proceduralist approach to legitimacy against a substantive approach; and democracy against liberalism.[1]. Consistent with this approach, Dyzenhaus develops a model of judicial review based on reasonable justification, with reference to a theory of democracy which is committed to a certain model of the rule of law
My evaluation of Dyzenhaus' views on democracy and judicial review will proceed through reliance on some of the texts of Jacques Derrida, those that relate to justice, democracy and the gift
Summary
What justifies the judicial review of administrative action and how should such review be exercised? These two questions have plagued administrative law theorists for many years. My evaluation of Dyzenhaus' views on democracy and judicial review will proceed through reliance on some of the texts of Jacques Derrida, those that relate to justice, democracy and the gift. The aim of this discussion will be to seek answers to the questions referred to above that plague administrative law
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