The Legal Question: Method and Intensity of Judicial Review

Abstract

This chapter reveals the methodology of judicial review and assesses how important affirmative action becomes for the human rights doctrine. In relation to the methodology of judicial review, three-steps are identified. First, setting the standard of review with collaterals relating to whether state authorities have mere discretion or legal obligation to introduce such measures; whether it is basically addressed to the state, thus being merely a policy, or it introduces an enforceable right; the version of equality applied in the course of judicial review (equality of results or opportunities), the depth of judicial review (restrictive or broad interpretation); the evidence and the threshold of burden of proof; and the impact of judicial predilection in deciding such cases. Second, identifying and assessing the goal pursed. And, third, applying the proportionality test through the vehicles of suitability (appropriateness and fitness) and necessity (less restrictive alternatives and temporal validity of action), in analogy to the applying standards of review particularly in the US (rational basis test, intermediate control, strict scrutiny). In the light of the above, the chapter finishes with an impact assessment of affirmative action upon the human rights doctrine, focusing on whether the policy constitutes a new social right and whether it eventually establishes group rights, contrary to the libertarian tradition of human rights’ protection.