Legitimacy—not Justice—and the Case for Judicial Review

Sceptics of judicial review—from Jeremy Waldron to those in the Judicial Power Project—have tended to attribute to their opponents an erroneous prioritisation of ‘justice’ over ‘legitimacy’. They claim that those who make the case for judicial review do so on the grounds that ‘judges know best’, and that judicial review therefore helps promote the overall justness of a state’s social order—rather than on the grounds that it helps enhance the overall legitimacy of a state’s authority. This article interrogates that line of attack. It explores its roots in political theory, particularly the idea that those guilty of it (such as Aileen Kavanagh) follow in John Rawls’s supposed prioritisation of justice over legitimacy. And it turns to republican and later-Rawlsian thinking on these two concepts to see whether it may offer a sound basis upon which the case for judicial review can be made … legitimately.