INTRODUCTION

Chapter 6 demonstrated the various ways in which procedural reasoning can be applied and the various standards that procedural reasoning may protect. Courts may protect certainty, rationality, and fairness standards by looking into the quality of decisionmaking procedures of public authorities. As was explained in that chapter, these standards are closely linked to central features of constitutional and international legal systems, such as the rule of law, democracy, separation of powers, and subsidiarity. Unsurprisingly then, from these central elements of institutional and constitutional design, process-based review has been the subject of debate.

In general, three main strands of argumentation can be distinguished in relation to the role and institutional position of courts in democratic societies and their use of procedural reasoning. First, process-based review is related to courts’ role in upholding the rule of law, including their review of the legal validity of decisions of legislative and administrative authorities (Section 7.2). Secondly, process-based review is connected to courts’ role in guaranteeing deliberative decision-making in democratic societies, and thus to theories on deliberative democracy (Section 7.3). Thirdly, process-based review is related to institutional judicial restraint, which may be warranted in light of the separation and division of powers within a State as well as across legal systems (Section 7.4). Section 7.5 connects the various insights of these sections and reflects on what these mean for the application of process-based review. It explains that views on constitutional issues such as democracy, separation of powers, the rule of law, and other central features of the institutional design of a legal system, influence perspectives on the legitimacy and appropriateness of process-based review. Furthermore, it clarifies that the historical and institutional context of courts provides for important settings for the use of procedural reasoning by courts, and that the way procedural reasoning is applied may relate to views on the intrusiveness of this type of review. The chapter closes with a brief conclusion (Section 7.6).

PROCESS-BASED REVIEW AND RULE OF LAW

A first argument in favour of process-based fundamental rights review relates to the role courts play in deciding on the legal validity of laws, policies and decisions. The importance of ‘universal adherence and implementation of the rule of law at both the national and international levels’ is generally accepted.