Who cares? A defence of judicial review

by Susanne Baer

16 Oct 2020
Journal of the British Academy, volume 8 (2020)
https://doi.org/10.5871/jba/008.075
30 (pages 75-104)

Abstract: For a long time, politicians and scholars and even judges have criticised national and international courts with the competence of judicial review of legislative and executive powers. The defence usually relies on more or less abstract notions of the rule of law. This article, however, argues that at the heart of the matter are people, as protected by fundamental rights. Critical approaches to the law and studies in comparative constitutionalism allow us to understand why judicial review matters, namely: to whom. From that point of view, judicial review is not just a debatable idea, but it is about, specifically, children and women, non-patriarchal men and social and cultural minorities, poor people and others who are excluded. These are people in need of courts. For people, the rule of law is not just another concept of how things may be run, but is a protective device against arbitrariness, or outright hostility, of political majorities. Way beyond a reference to Germany´s history, judicial review is a ‘never again’ to law as an empty promise.

Keywords: Fundamental rights, human rights, judicial review, constitutionalism, democracy, rule of law, minorities, German unification, ‘Volk’ / the people.

Maccabaean Lecture in Jurisprudence, read on 25 November 2019.

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