Justification, Calibration and Substantive Judicial Review: Putting Doctrine in its Place

Abstract

This working paper is the precursor to a chapter I am writing for an edited collection on substantive judicial review. In this working paper, I argue against the two dominant schools of thought in this area, according to which substantive review is either bifurcated (by reference to the reasonableness and proportionality doctrines) or the preserve only of the proportionality doctrine. I go on to argue that the existing debate places undue emphasis upon doctrinal considerations, and that a better approach is to place the concept of justification centre-stage. I then develop a notion of justification around two ideas of deference, which are concerned respectively with the allocation to the decision-maker of a justificatory burden and the determinination by the court of whether that burden has been discharged.