Content of Review

Abstract

The third element of judicial review discussed – in addition to its judicial fora and modalities, which were addressed in previous chapters – is that of its content. What is it that is actually scrutinised when a court tests the quality of legislation? Taken at its broadest, the content of review can pertain to the legality and legitimacy of a norm. Legality, simply put, involves the technical issue whether the norm in question is a legal one, while legitimacy concerns its material value as measured against fundamental rights. A court must always decide if what it is presented is actually a law, otherwise any norm can be pleaded before judges without them having the ability to establish if it really is a law. The greater the bench’s powers to analyse a norm’s legal pedigree, the more the judiciary ventures onto the middle ground between it and the legislature. This chapter explores the contours of judicial review in the United Kingdom, the Netherlands and South Africa as far as its content is concerned.