The Right to Judicial Review

Judicial review (JR) is typically justified on consequentialist grounds, namely that it is conducive to the efficacious protection of individual rights. This Essay disputes this popular explanation for JR and argues that JR is based on a right to voice a grievance or a right to a hearing - a right designed to provide an opportunity for the victim of infringement to challenge that infringement. The state must justify and, in appropriate cases, reconsider any infringement in light of the particular claims and circumstances of the victims of the infringement. This right-to-a-hearing-based justification implies that JR is justified even if ultimately it is found to be detrimental to the efficacious protection of rights. Finally, this Essay concludes that the right to a hearing is a participatory right and, consequently, that JR does not conflict with the right to equal democratic participation