Judicial review of regulatory instruments: The least imperfect alternative?

In this article, the judicial review of regulatory processes is investigated from the perspective of institutional choice, which concerns the optimal institutional allocation of functions in a society. It is demonstrated that judicial decisionma king and policy making, both forms of public decision-making, in liberal democracies are changing under the effects of: (i) shifts in the balance of power between the branches of government, and (ii) the emancipation of the social sciences as standards for public decision-making. The institutional role of the judiciary with regard to the guarantee of the quality of regulatory processes is examined in light of political, legal, economic and professional rationalities concerning public decision-making. On the basis of this analysis, it is concluded that the judiciary in liberal democracies currently seems to be a legitimate institution to exercise a review of regulatory processes. Moreover, the analysis clarifies that the courts in liberal-democratic systems generally are able to provide the knowledge and the organisational structure needed to exercise this kind of judicial review.

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