The Academic Mythologians
(2001) 21 Oxford Journal of Legal Studies 369-380
Posted: 14 May 2013
Date Written: 2001
Abstract
This paper considers the debate between the 'ultra vires' theory of judicial review and the 'common law' theory of judicial review. The paper concludes that neither of these approaches is attractive. The ultra vires theory purports to ground judicial review in the intention of Parliament - but the understanding of parliamentary intention invoked is so flexible any judicial decision can then be defended. The connection between parliamentary intent and democracy that might, otherwise, make the ultra vires theory plausible is then lost. The common law theory, in contrast, is little more that a negation of the ultra vires theory, asserting that judicial review is grounded in the common law. Once again, the theory fails to explain the values that animate, or should animate the law, and consequently lack a critical dimension. The paper also make some suggestions about the criteria a successful theory of judicial review might satisfy.
Suggested Citation: Suggested Citation