ABSTRACT
Judicial review is a part of most constitutional democracies and is a countermajoritarian institution that works alongside with majoritarian ones. As a result of this, it is often criticised for its shortcomings in ensuring social welfare. The chief allegation is that its action to invalidate the working of democratically elected representatives is a usurpation of the will of the majority on the basis of rules and inclinations that are incapable of providing for good governance. It is the intention of the author to assess this allegation through the lens of law and economics, specifically whether judicial review as a concept could be found to meet a criterion of efficiency. This will be done by attempting to place the democratic process into a framework that assesses its tendencies for its ability to bring about an equilibrium at the point of maximum utility. While this may appear to be counter to most prevalent views of the nature of democratic action, it is this very framework that can best assess the process for efficiency and assess where judicial review may find a legitimate place and purpose.
