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The Delegation Theory of Judicial Review
Author(s) -
Ahmed Farrah
Publication year - 2021
Publication title -
the modern law review
Language(s) - English
Resource type - Journals
SCImago Journal Rank - 0.37
H-Index - 22
eISSN - 1468-2230
pISSN - 0026-7961
DOI - 10.1111/1468-2230.12632
Subject(s) - doctrine , parliament , delegation , normative , political science , judicial review , scope (computer science) , legislature , law , coherence (philosophical gambling strategy) , law and economics , sociology , politics , computer science , physics , quantum mechanics , programming language
This paper offers an interpretive theory which aims to make sense of judicial review doctrine in light of its underlying rationale. The idea that administrators are delegates of Parliament or the Crown lies at the heart of this theory. The paper argues that the best internal rationale for judicial review doctrine is that it holds administrators to their moral duties qua delegates of Parliament or the Crown. This rationale closely fits legal doctrine, including the grounds of review and the scope of review; it reveals the underlying coherence of the law; it shows how the law is supported by some moral reasons; and it closely reflects judicial reasoning. The delegation theory is valuable for normative, predictive, reformatory and pedagogical reasons. It can provide guidance to judges, help to predict how they will decide, help to assess the law, help to evaluate reform proposals and enhance understanding of judicial review amongst administrators, legal practitioners and students.