In contrast to the civil law tradition, the common law has from time to time struggled to provide a constitutional basis for the procedure known as ‘judicial review’. For some, judicial review represents the primary procedure by which both the rule of law and separation of powers find expression and are given operational force. Its advocates assert that the procedure affords the judiciary an opportunity to expose for evaluation the aspirations, objectives, ambitions and policies of the executive, testing their legality and proportionality. For others, judicial review is viewed as unconstitutional and represents nothing more than a display of judicial activism, inconsistent with the constitutional supremacy of the legislature.

Den Otter's declared ambition is to provide a conceptual justification for judicial review. In meeting this task, he begins with an exposition of judicial review as a form of constitutional adjudication. In distancing himself from other forms of interpretative evaluation process, he suggests that constitutional adjudication must inevitably seek to transport the law from abstract concept to lived experience – a purpose which, he contends, obliges the judiciary to sift through a range of considerations extrinsic to the decision or legislative measure which is the subject of scrutiny. Upon this basis, he advances the view that the issue requiring constitutional attention is not so much whether the judiciary has exceeded some yet to be defined limit of jurisdiction, but rather the influences which seemingly inform the underlying rationale of the decision itself. For Den Otter, this perspective provides a more reliable measure of the potential for public justification, since it serves to reveal not only legitimate points of reference relied upon by the judiciary but also those occasions when deliberation has been skewed on grounds of what he terms ‘naked preferences’ (p 7, citing Sunstain) which, upon objective analysis are not consistent with the ‘common good’. With this in mind, Den Otter proposes that the judiciary should so craft their decisions as to render them accessible, rational and acceptable to ‘reasonable dissenters’ (p 11). Closer reading confirms that ‘reasonable dissenter’ is here used as a near cousin to the ‘objective bystander’, with the result that he or she is equipped with an appreciation of what the public interest demands in any given instance. According to Den Otter, those decisions which meet with the approval of the reasonable dissenter may be considered legitimate, whereas those which fall short are not.

One can see here traces of two influences. The first is the notion of legitimate expectation, which necessarily informs the reasonable dissenter and his or her reaction to the action of the state. The second is the more fundamental and problematic, namely the precise location of the public interest. In seeking to resolve the issue, Den Otter is at pains to point out that reasonable opinion may conceptually capture widely divergent views. Despite this, he suggests that the barometer of the reasonable dissenter enables a court to ‘justify’ its decisions and secure a legitimacy which is consistent with ‘constitutional democracy’ (p 14). Thereafter, Den Otter tests these propositions by reference to core ingredients of American constitutional history (such as freedom, equality and deference to legislative majorities) and to the competing perceptions of ‘public justification’ (p 6). In doing so, Den Otter is obliged to acknowledge the ‘difficult cases’ (p 56), namely those invariably involving an analysis of a number of conflicting arguments, each of which might meet his ‘reasonable dissenter’ test. It is the reality of this dynamic which, according to Den Otter, promotes the judiciary as a necessary gatekeeper.

His thesis is informed, if not driven, by a somewhat pessimistic view of American political institutions which prompts him to offer the judiciary as a ‘primary vehicle of public justification’ (p 230). Nevertheless, this is an extensively researched study. Den Otter raises a wide range of theoretical and practical questions concerning the role of the judiciary at a time when, while the political franchise is more widely enjoyed, the notion of the common good is proving all too elusive to the legislature and is frequently seen as a passport to homogeneity. His arguments are of interest, not least to those concerned with the judicial treatment of religious rights in a plural society.