Abstract:
The highest courts in both Canada and South Africa have expressed
themselves in favour of an approach of deference as respect in the review of
administrative action. The notion of deference as respect derives from the
thinking of David Dyzenhaus, who has developed a theory of democracy in
support of this approach to judicial review. Dyzenhaus’ model of review
attempts to steer clear from the problems he associates particularly with
positivism and liberalism. Dyzenhaus’ model of review furthermore attempts to
allow space for the administration to play a significant role in giving effect to
democratic values, on the understanding that all such decisions need to be
reasonably justifiable. In this article the views of Dyzenhaus are contrasted with
those of Jacques Derrida, especially insofar as the latter has reflected on the
relation between law and justice, as well as concepts such as the gift and
democracy. The argument developed in this article is that Dyzenhaus’ model of
review, despite its many positive features, needs to be rethought with reference
to the perfect gift, unconditional justice and democracy to come. Such a
rethinking is required because of the limited conception of justice – as simply
‘our’ justice – in Dyzenhaus’ model.
