Much has been written on whether public/private distinctions should be made by judicial review. Little explored is the related but distinct question of whether judicial review should itself be classed as a branch of public law. This important issue of taxonomy affects the limits, contours and methodology of review, yet is often taken for granted. This article argues that the law and scholarship on judicial review is infused with preconceptions that often prove inconsistent or incoherent, and which may even hinder the potential of judicial review to protect individual rights by taxonomically binding it to public law in a way that is neither an epistemological nor functional imperative. It argues that by loosening its association with public law, judicial review can begin to be liberated from these preconceptions, with renewed focus on deeper questions of principle and purpose.
Thomson, Stephen, Judicial Review and Public Law: Challenging the Preconceptions of a Troubled Taxonomy, (2017) 41(2) Melbourne University Law Review 890.