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Institutional Approaches to Judicial Restraint

Institutional Approaches to Judicial Restraint This article addresses the pressing issue of what process courts should use to identify those questions whose resolution lies beyond their appropriate capacity and legitimacy. The search for such a process is a basic constitutional problem that has defied a clear answer for well over a hundred years. The chequered history of earlier attempts illustrates why commentators have once again begun to gravitate towards institutional approaches. The general features of institutional approaches include emphasis on uncertainty, judicial fallibility, systemic impact, collaboration between branches of government and incrementalism in judging. These features, however, are relied upon in support of two conflicting views of the role of judges in public law adjudication. One is restrictive, and advocates sharp limitations to the ambit of judicial review. The other is contextual, and, in stark contrast, it proposes to expand the ambit of review in reliance on the idea of using principles of restraint to structure the exercise of judicial discretion. While this article does not take sides between them, it nonetheless seeks to refine the contextual institutional approach by outlining a general framework for reasoning with principles of restraint, and by addressing some of the key difficulties such a reasoning process would face. http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png Oxford Journal of Legal Studies Oxford University Press

Institutional Approaches to Judicial Restraint

Oxford Journal of Legal Studies , Volume 28 (3) – Aug 22, 2008

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Publisher
Oxford University Press
Copyright
© The Author 2008. Published by Oxford University Press. All rights reserved. For permissions, please e-mail: journals.permissions@oxfordjournals.org
ISSN
0143-6503
eISSN
1464-3820
DOI
10.1093/ojls/gqn020
Publisher site
See Article on Publisher Site

Abstract

This article addresses the pressing issue of what process courts should use to identify those questions whose resolution lies beyond their appropriate capacity and legitimacy. The search for such a process is a basic constitutional problem that has defied a clear answer for well over a hundred years. The chequered history of earlier attempts illustrates why commentators have once again begun to gravitate towards institutional approaches. The general features of institutional approaches include emphasis on uncertainty, judicial fallibility, systemic impact, collaboration between branches of government and incrementalism in judging. These features, however, are relied upon in support of two conflicting views of the role of judges in public law adjudication. One is restrictive, and advocates sharp limitations to the ambit of judicial review. The other is contextual, and, in stark contrast, it proposes to expand the ambit of review in reliance on the idea of using principles of restraint to structure the exercise of judicial discretion. While this article does not take sides between them, it nonetheless seeks to refine the contextual institutional approach by outlining a general framework for reasoning with principles of restraint, and by addressing some of the key difficulties such a reasoning process would face.

Journal

Oxford Journal of Legal StudiesOxford University Press

Published: Aug 22, 2008

There are no references for this article.