Political Constitutionalism and Judicial Review

The principal academic challenge to the legitimacy of judicial review is presently the work of political constitutionalists. Their main focus hitherto has been constitutional review, but there is now also literature challenging non-constitutional review, which is explored in this paper. The structure of the argument is as follows. In part one the political constitutionalist argument against constitutional review is considered. I do not claim to add to the sophisticated literature on this issue, but its relevance to the Human Rights Act 1998 will be considered. The implications of political constitutionalism for judicial review in administrative law are however much less well-developed. Thus parts two and three critically assess what are termed the radical and moderate view of political constitutionalism. In part four legal constitutionalism is revisited and a moderate view thereof is presented that best captures the legitimacy of judicial review in administrative law, and provides a balanced account of the inter-relationship of courts and the political process in delivering accountable government. In part five the relationship between legal and political constitutionalism is clarified, while part six addresses some of the broader criticisms of legal constitutionalism in the light of the moderate version thereof presented in this paper