Judicial Review: Still in Search of True Foundation

Abstract

The paper is a contribution to the debate on the true foundation of judicial review. The paper argues that since most of the common law grounds of review had their origin in the principles of natural law, common law can not be the true origin. It is also contended that intention of the legislature, whether directly or otherwise can not be the foundation. Where the court can not find justification in the constitution, particularly in countries with written constitution, it should look for source in the formal constitution. A constitution, though written is a codification or the positivisation of unwritten norms. Britain has unwritten constitution, yet that does not mean that there is no constitutional norms that are for long and since time out of mind been known to people as the governing rules. Therefore, whether in a written or unwritten constitutional environment the power of the court to review executive or legislative actions must be traceable to the written or the formal constitution.