A Typology of Judicial Review

Katharine G. Young

in Constituting Economic and Social Rights

Published in print August 2012 | ISBN: 9780199641932
Published online September 2012 | e-ISBN: 9780191746086 | DOI:

Series: Oxford Constitutional Theory

A Typology of Judicial Review

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This chapter commences the study of enforcement in Part II of the book. It examines the challenge of enforcement against the two poles of judicial usurpation and abdication. The first expresses the fear that judges will usurp the elected branches, by enforcing interpretations of economic and social rights that are neither democratically accountable nor competently devised. The second sees abdication of the judicial role, and the accompanying diminishing of all rights, to be the greater problem. This Chapter departs from these poles by demonstrating the variety of judicial review that accompanies economic and social rights. Drawing on examples from South Africa and the United States, it describes what it calls deferential, conservational, experimentalist, managerial, and peremptory stances of judicial review, which each present different responses to the interpretation of rights, the scrutiny of government, and the control of remedies. This typology is presented as a diagram

Keywords: usurpation; abdication; enforcement; typology of judicial review; deferential; conservational; experimentalist; managerial; peremptory review; South Africa; United States

Chapter.  15518 words.  Illustrated.

Subjects: Constitutional and Administrative Law

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