Politics & International Relations
Judicial Review
Judicial review is the power of a court to review and potentially invalidate laws or actions of the executive and legislative branches of government that are deemed unconstitutional. This process allows the judiciary to serve as a check on the other branches, ensuring that their actions comply with the constitution. Judicial review is a fundamental aspect of the separation of powers in many democratic systems.
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9 Key excerpts on "Judicial Review"
eBook - PDFProportionality and Judicial Activism
Fundamental Rights Adjudication in Canada, Germany and South Africa
- Niels Petersen(Author)
- 2017(Publication Date)
- Cambridge University Press(Publisher)
Supreme Court’ (2008) 102 American Political Science Review 369–84. 8 Barry Evan Friedman, ‘The Politics of Judicial Review’ (2005) 84 Texas Law Review 257–337 at 276. Proportionality and Judicial Activism 16 likely that judges are influenced by different factors: Their decisions are based on legal as well as non-legal factors. 9 If decisions of constitutional courts are not primarily motivated by legal considerations, they are in need of an external justification. In this chapter, I will argue that Judicial Review serves the function of correcting politi- cal market failures. The argument will be developed in four steps. In the first section, I will outline the conception of democracy upon which the argument is based. Determining the function of a constitutional court requires a sense of how to divide powers between the different branches of government. This seems impossible without discussing the function of the remaining branches – that is, parliament and government. The second section will develop the main argument: Judicial Review is supposed to correct political market failures. This conceptualisation of Judicial Review is not entirely new. Instead, it is largely based on John Hart Ely’s account on the legitimacy of the US Supreme Court. 10 However, I will extend Ely’s model in several respects. For this purpose, I will identify dif- ferent cases of political market failures and show how courts can react to them. The third section then asks why courts are in a better position than legislatures to take such decisions. Finally, the fourth section concludes. 1. Democracy and Judicial Review In the current discussion on democratic theory, there are two main strands. On the one hand, we have the theory of competitive democracy. The central element of this theory is that political parties compete for votes of the electorate. The theory can be traced back to the work of Joseph Schumpeter, 11 but it has been developed significantly since then.
eBook - PDFJudicial Review
Process, Powers, and Problems (Essays in Honour of Upendra Baxi)
- Salman Khurshid, Sidharth Luthra, Lokendra Malik, Shruti Bedi(Authors)
- 2020(Publication Date)
- Cambridge University Press(Publisher)
The three judges who had been superseded resigned. It was the time when there was the talk of a committed judiciary. Sadly, not committed to the Constitution. Judicial Review is the power that is exercised by the judges and courts in accordance with the Constitution. The Constitution is binding on the courts and the judges. The constitutional court is meant to read the spirit of the Constitution. It is to interpret the Constitution in the manner in which power is used to protect the basics of the Constitution. The constitutional discipline is binding on the government of the day. It is binding on the parliament. It cannot be open to the executive or the parliament to change the Constitution in the manner it so desires to do. It is obvious that no parliament would want a check on itself. In fact, the parliament would want that it could amend the constitution in any manner it desired. If this power is allowed, the very purpose of having a written constitution would stand totally defeated. A written constitution is meant to ensure that every organ of the state must work in furtherance of the basics of the constitution. 134 Balram K. Gupta It is the constitution which is supreme. It needs to be understood that a system governed by written constitution has certain implied limitations. There are inherent and implied limitations on the amending power of the parliament. The parliament is the creature of the constitution. Therefore, the parliament cannot assume to itself the power to amend or destroy the essential features of the constitution. In other words, the basic structure of the constitution is the limitation on the power of the parliament to amend the constitution. 18 The doctrine of ‘basic features’ has been attributed to Justice J. R. Mudholkar. 19 Justice Mudholkar had used this expression in Sajjan Singh’s case (1964).
- Erika de Wet(Author)
- 2004(Publication Date)
- Hart Publishing(Publisher)
This is, in principle, also the effect of the preliminary rulings procedure provided by Art 234 (former Art 177) of the EC Treaty. On receiving requests from national courts concerning the interpretation of EC law, the European Court of Justice is limited to interpreting EC law and may not give an opinion on the compatability of the national law with EC law. On the other hand, however, the European Court of Justice will formulate its opinion in such a way that the national court would be in a position to draw the necessary consequences for the national law with respect to the case at hand. For example, the national court would be able to determine that a partic-ular national measure is not compatible with European Community Law and should there-fore not be applied. Cf Paul Craig & Gráinne de Búrca, EU Law: Text, Cases and Materials 407 ff (Oxford, Oxford University Press, 1998) . 296 Lorinser, above n 4, at 83. 297 Franck (International Legal Issues), above n 161, at 630; Alvarez (Theoretical Perspectives), above n 212, at 87. The different forms of Judicial Review reflect a common desire to guarantee the respect of political organs for the balance of power between the different state structures. 298 There is a growing conviction that the constitutionality of acts of state organs cannot be guaranteed automati-cally, despite the fact that there is a division of state powers and that they are bound to the constitution. 299 Virtually all systems past and present of political, non-judicial control of the political branches have proved to be inefficient. 300 This results from the fact that limitations on power—unlike power itself—cannot be left to be nurtured by practice. 301 Even in the most democratic of societies legislative and executive officials have an incentive to manipulate limitations on their power, since they are inevitably moti-vated by their desire to remain in power and to employ the resources and prestige of their elected office to accomplish that goal.
eBook - PDFThe Judge as Political Theorist
Contemporary Constitutional Review
- David Robertson(Author)
- 2010(Publication Date)
- Princeton University Press(Publisher)
Ef-fects like this, including institutional restrictions on the review bodies, are a matter of detail—though crucially important detail—and must be left for later exposition. It should be clear, though, that effective constitutional review is no mere matter of a rich constitutional text and an eager court being combined. Technical Aspects of Judicial Review What constitutional review is cannot properly be described without some descrip-tion of how it is done. The courts work on texts—initially the constitution itself and other sources identified by the constitution as having authority. Thus the French Conseil constitutionnel has used both the preamble to the constitution of the Fourth Republic and the 1789 Declaration of the Rights of Man as authorised by the text of the Fifth Republic constitution. Many of the East European courts have referred to the European Convention on Human Rights because their own constitutions tell them so to do. Secondarily, courts refer to their own previous decisions and, often prompted by their own constitutions, they consider the decisions of other similar courts. They may also consult more amorphous bodies of legal writing, especially things with titles like “principles of international law” or “general principles of law.” Again, the French Conseil consults “general principles of French republican law.” The national constitution is the starting place. To say that these constitutional review bodies “interpret” the constitution is largely empty. It is easier to think in terms of their trying to answer questions posed to them by others by looking at these documents. There are at least two rather different sorts of problems the con-stitutional review bodies can be asked because of the various routes by which they can be directed to an issue. If it is a court to which issues arising in real litigation are referred or appealed, the context of the litigation forms the precise question.
eBook - PDF- Hermann Pünder, Christian Waldhoff, Hermann Pünder, Christian Waldhoff(Authors)
- 2014(Publication Date)
- Hart Publishing(Publisher)
In other words, the criticism of the Court remains restricted to the merits of particular cases, rather than the institution of the Court itself. 73 One has to add that though this take on the Court might be considered meth-odologically naïve, it has a stable basis in the very legal origins of constitutional review under the German Basic Law. A comparison with the US debate may make this clear. Although one reason for the extensive discussion of Judicial Review in the US may be a distrust of classic legal methodology, another reason for the debate is the dubious origins of the practice of Judicial Review itself in the American system. The interpretation of Marbury v Madison and its political context lie at the heart of even many contemporary contributions to this problem. 74 However, the FCC does not have to refer to anything similar to Justice Marshall’s very par-ticular art of constitutional construction to justify Judicial Review as such. Despite initial protests about the way the power was used, it was generally uncontested 69 Stone Sweet, The Birth of Judicial Politics in France (n 67); M Troper, La separation des pouvoirs et l’histoire constitutionnelle française (Paris, Librairie Générale de Droit et de Jurisprudence, 1973); Louis Favoreu, La politique saisie par le droit (Paris, Economica, 1988). 70 For this idea I thank Pasquale Pasquino. 71 M Kelman, A Guide to Critical Legal Studies (Cambridge, MA, Harvard University Press, 1987) 46–48; S Breyer, Active liberty: Interpreting our democratic constitution (Oxford, OUP, 2006). 72 The radical counter-argument is J Waldron, ‘The Core of the Case against Judicial Review’ (2006) 115 Yale Law Journal 1346. One feature is just the political concept of rights. In other words, Waldron’s argument wins some of its force from the assumption that there is no point in a constitutional defini-tion of rights.
- Ellie Palmer(Author)
- 2007(Publication Date)
- Hart Publishing(Publisher)
Particularly in certain sensitive areas of policy that have historically been regarded as the preserve of elected organs of government, it was argued that essential dissatisfaction with the rea-sonableness of public authority decision-making is more appropriately to be expressed through the ballot box than by the sporadic interventions of non-elected judges in the affairs of executive government. However, in the mid-1980s, dissatisfied with the lack of intellectual rigour and analytical integrity within the ultra vires paradigm of review, some consti-tutional scholars and judges began to posit an alternative ‘rights-based’ model for the legitimate control of administrative discretion in English public law. Basing their analyses on pluralist conceptions of parliamentary democracy, it was claimed that the role of courts is to give effect to those clearly defined and enduring values that lie beyond the purview of statutes and to which society is already committed in international and domestic common law. 7 Thus, not only was it claimed that Judicial Review ‘is founded on a need to control abuse of power and protect individuals’, 8 but more controversially, it was argued that The Constitutional Foundations of Judicial Review 153 4 This alternative view was presented both in the works of leading academic authors and in the extra-judicial pronouncements of senior members of the judiciary. See P Craig, Administrative Law , 3rd edn (London, Sweet & Maxwell, 1994) 12ff. For judicial support of the alternative view, see the influential opinions of the Lord Woolf ( ibid ); Sir John Laws, ‘Is the High Court Guardian of Fundamental Constitutional Rights?’ (1993) Public Law 59; and Laws (1995) ( ibid ) 93. For an early academic critique of the orthodox view, see D Oliver, ‘Is the Ultra Vires Rule the Basis of Judicial Review?’ (1987) Public Law 543, 545.
eBook - PDFJudicial Power
How Constitutional Courts Affect Political Transformations
- Christine Landfried(Author)
- 2019(Publication Date)
- Cambridge University Press(Publisher)
PART I Democratic Legitimacy of Judicial Power 1 Judicial Power and Democracy . Introduction Every year new books and articles appear on democracy and consti- tutional Judicial Review. The stream is not going to stop because many people who like democracy also like Judicial Review, and try as many of them might, it is not possible to render the two compatible. Consti- tutional Judicial Review inevitably involves a small number of unelected men and women making public policy or blocking public policy made by the people or their elected representatives. Democracy means public policy made by the people or their representatives. By some word magic, rendering review and democracy compatible or at least friendly coresi- dents of the polity may be a worthy task for those who are trying to make particular polities work well. For those seeking a scientific understanding of politics, the question of democracy and review is an uninteresting one because it is so easily answered. The interesting question is: How do they get away with it? How do a few people without the purse or the sword make public policy pronouncements that people and powerful political institutions are willing to obey? The total number of successful Judicial Review polities is too small, and they present such a variety of political features that no single answer to the question is likely to emerge from straightforward comparative analy- sis seeking to reveal a common set of causes for the success of review in all the places where judges do get away with it. The answer that review works where the citizenry sees it as legitimate is too tautological to be satisfying. There is a tendency to state matters by saying that courts endowed – sometimes self-endowed – with the power of review get away with it by building up popular credit through doing things people like and then can occasionally draw on that credit by doing something they don’t like.
eBook - PDFThe New Commonwealth Model of Constitutionalism
Theory and Practice
- Stephen Gardbaum(Author)
- 2013(Publication Date)
- Cambridge University Press(Publisher)
Obviously, to the extent that the political rights review at the first stage approaches the ideal version sketched above, the basis for this judicial posture toward it is further strengthened. At the same time, however, their informing and alerting function – which, under the model, exists alongside their adjudicatory one – requires that the courts provide an independent judgment that seeks to present the best legal view on the merits. That is, they should take into account but not be foreclosed by, or formally deferential to, the views of the political branches expressed at the previous stage. Judicial rights review should be respectful but unapologetic. Not only is it unconstrained by full practical responsibility for the final decision and its consequences that can lead to under-enforcement of rights within judicial supremacy, but cultivating the ‘passive virtues’ 13 would be structurally misplaced and counterproductive in a system of penultimate Judicial Review. For here it is the non-use or under-use of deliberately granted powers that threatens to undermine the distinctness and stability of this system. Accordingly, as an exercise in reasoned persuasion rather than ‘raw judicial power’, 14 judicial rights review should be characterized by trans- parency and candour, permitting a full airing of the issues from a legal perspective. It should attempt to be as clear and accessible as possible, for its most important intended audience is not fellow lawyers, but members of the legislature and the public. Because the judicial decision is not necessarily the final one, there is no need to assume an air of ‘infalli- bility’ 15 or false objectivity; its authority will be as much a function of its quality as its pedigree. Here, colloquies and differences among judges will be particularly important, and their absence, except in very clear cases, will likely detract from rather than add to its influence.
- Fergal F. Davis, Fiona de Londras(Authors)
- 2014(Publication Date)
- Cambridge University Press(Publisher)
PART I Judging counter-terrorism Judicial Review 1 Counter-terrorism Judicial Review as regulatory constitutionalism fiona de londras As the other contributions in this volume attest, since 9/11 courts, inquiries, 1 politics 2 and independent reviewers 3 have been working to try to maintain and enforce constitutionalist principles in the face of counter-terrorist powers. Experience has shown that politics has struggled to resolve the challenges these powers pose to constitutional- ism 4 – broadly understood here as a rule of law based commitment to limited, accountable and transparent power – so that courts have become central to resolving these tensions. In large part, courts have been asked to deal with counter-terrorist policies and laws directly imposed on litigants by respondent states, in relation to which some commentators have claimed courts are being less deferential than might have been expected. 5 Adjacent to these kinds of cases, however, is the complex situation of the suspected terrorist with some kind of relational connec- tion to one state who is either detained abroad by another state or by his own state, which intends to transfer him into the custody of another. These cases are truly acute; they bring into question not only the fine 1 See Chapter 8 in this volume, K. Roach, ‘Public inquiries as an attempt to fill accountabil- ity gaps left by judicial and legislative review’. 2 See Chapter 6 in this volume, F. Davis, ‘The politics of counter-terrorism Judicial Review: creating effective parliamentary scrutiny’. 3 See Chapter 7 in this volume, J. Blackbourn, ‘Independent reviewers as alternative: an empirical study from Australia and the United Kingdom’. 4 See Chapter 6 in this volume, F. F. Davis, ‘The politics of counter-terrorism Judicial Review: creating effective parliamentary scrutiny’ and Chapter 11, G. Phillipson, ‘Deference and dialogue in the real-world counter-terrorism context’.
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