Chapter

Justifying the Judicial Review of Fundamental Rights

David Bilchitz

in Poverty and Fundamental Rights

Published in print August 2008 | ISBN: 9780199552160
Published online January 2009 | e-ISBN: 9780191709456 | DOI: http://dx.doi.org/10.1093/acprof:oso/9780199552160.003.0005
 Justifying the Judicial Review of Fundamental Rights

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Given the complexity of the judgment concerning the unconditional obligations upon a society to realise fundamental rights, it becomes of importance to understand who within a society is tasked with making such decisions. Different justifications are provided for allowing judges to make final decisions in relation to matters concerning fundamental rights. This chapter criticizes Jeremy Waldron's arguments against judicial review and shows them to be self-defeating. It is then argued that the theory of content of fundamental rights that has been provided provides a powerful argument for supporting judicial involvement and decision-making concerning the enforcement of fundamental rights. It is suggested that the judiciary is likely to reach better decisions concerning fundamental rights than majoritarian institutions. The chapter concludes by showing the applicability of the general justification for judicial review to an argument for judicial review in the context of socio-economic rights where it is often more controversial.

Keywords: content; Jeremy Waldron; epistemological features; good decision-making; judiciary; majoritarian institutions; socio-economic right

Chapter.  17347 words. 

Subjects: Human Rights and Immigration

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