Contextual review: the instinctive impulse and unstructured normativism in judicial review
Abstract Contextual review is a judicial method that rejects doctrinal or categorical methods to guide judicial supervision of administrative action. Judges are invited to assess the circumstances of a claim in the round without any doctrinal scaffolding to control the depth of scrutiny; in other wo...
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| Published in: | Legal studies (Society of Legal Scholars) 2020-03, Vol.40 (1), p.1-21 |
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| Main Author: | |
| Format: | Article |
| Language: | eng |
| Subjects: | |
| Online Access: | Get full text |
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| Summary: | Abstract
Contextual review is a judicial method that rejects doctrinal or categorical methods to guide judicial supervision of administrative action. Judges are invited to assess the circumstances of a claim in the round without any doctrinal scaffolding to control the depth of scrutiny; in other words, intervention turns on an instinctive judicial impulse or overall evaluative judgement. This paper identifies and explains the various instances where this method is deployed in judicial review in Anglo-Commonwealth administrative law. The efficacy of this style of review is also evaluated, using rule of law standards to frame the analysis. Its increasing popularity is a worrying turn, in part because its reliance on unstructured normativism undermines the rule of law. |
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| ISSN: | 0261-3875 1748-121X |