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Durham University

Durham Law School

Events & Workshops

HRC Research Seminar 23/10/2019: Dr Dean Knight, 'Contextual review: the instinctive impulse and unstructured normativism in judicial review'

23rd October 2019, 17:00 to 18:00, PCL152, Dr Dean Knight

On Wednesday 23/10, Dr Dean Knight (Victoria University of Wellington/LSE) will present his paper entitled 'Contextual review: the instinctive impuslse and unstructured normativism in judicial review' as part of the Durham HRC's research seminar series, with Prof. Aileen McHarg acting as discussant. All welcome.

Paper Abstract:

Contextual review has seductive charm. Judges are invited to assess the circumstances in the round without any doctrinal scaffolding to control the depth of scrutiny. Doctrinal or categorical methods traditionally employed to guide the supervisory eye, such as scope, grounds or intensity of review, are rejected in favour of a form of normative argumentation. The ultimate litmus test becomes one of instinct or overall judgement: has something gone wrong that justifies the intervention of the court?

We can see the seeds of contextual review throughout Anglo-Commonwealth judicial review of administrative action and perhaps increasing currency lately too. I identify and explain the various instances where this method is deployed in judicial review in England and Wales, Canada, Australia, and New Zealand.

And I evaluate the efficacy of this approach to review, testing it against rule of law standards. Despite all the seduction of simplicity, surrendering doctrine for judgement is troubling. The increasing popularity of contextual review of this type represents a worrying turn, in part because its reliance on unstructured normativism undermines the rule of law.

Contact for more information about this event.