The logic of justification of judicial review

Abstract

This article does not attempt to provide a justification for judicial review of legislation, but rather provides a critical analysis of existing justifications. All theories of justification must reconcile two propositions: that courts partake in the final formulation of legislation and that they nonetheless implement the fundamental principles embodied in the political will of the people. On the one hand, courts must safeguard the supremacy of the constitution as positive law; on the other, they must not inhibit democracy. None of the existing justifications is fully convincing, either because they are too difficult to reconcile with democracy or, more surprising, because they divide the sovereign into two and superimpose a hierarchy on the resulting halves.