You Cannot Escape from People: Why Institutional Reasons Are Necessary for Arguing for Judicial Review

Abstract One set of arguments on judicial review states that this is a necessary consequence of understanding rights as limits to democracy. This paper brings some nuances to this argument, arguing that the answer to the problem of judicial review should rely not only on rights‐based arguments, but also on institutional arguments. In order to do so, the first part will present the idea that links rights as trumps to judicial review. In the second part, the article will show it is possible to split the conception of rights as limits into two questions, one regarding what the state should or should not do and the other regarding who should be the one to give content to this set of decisions. The third part will show that all rights‐based arguments fail because they cannot deal with the fact of disagreement. The last part will show that rights still have a part to play in the discussion on judicial review, though without the final word.