Judicial review

Judicial review

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Judicial review is the doctrine under which legislative and executive actions are subject to review (and possible invalidation) by the judiciary. Specific courts with judicial review power must annul the acts of the state when it finds them incompatible with a higher authority (such as the terms of a written constitution
Constitution
A constitution is a set of fundamental principles or established precedents according to which a state or other organization is governed. These rules together make up, i.e. constitute, what the entity is...

). Judicial review is an example of the separation of powers
Separation of powers
The separation of powers, often imprecisely used interchangeably with the trias politica principle, is a model for the governance of a state. The model was first developed in ancient Greece and came into widespread use by the Roman Republic as part of the unmodified Constitution of the Roman Republic...

 in a modern governmental system (where the judiciary is one of three branches of government). This principle is interpreted differently in different jurisdictions, which also have differing views on the different hierarchy of governmental norms. As a result, the procedure and scope of judicial review differs from country to country and state to state.

General


Judicial review is one of the main characteristics of government in the United States and similar democracies. It can be understood in the context of two distinct—but parallel—legal systems (civil law
Civil law (legal system)
Civil law is a legal system inspired by Roman law and whose primary feature is that laws are codified into collections, as compared to common law systems that gives great precedential weight to common law on the principle that it is unfair to treat similar facts differently on different...

 and common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...

), and also by two distinct theories on democracy and how a government should be set up (the ideas of legislative supremacy and separation of powers). First, two distinct legal systems, civil Law
Civil law (legal system)
Civil law is a legal system inspired by Roman law and whose primary feature is that laws are codified into collections, as compared to common law systems that gives great precedential weight to common law on the principle that it is unfair to treat similar facts differently on different...

 and common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...

, have different views about judicial review. Common-law judges are seen as sources of law, capable of creating new legal rules, and also capable of rejecting legal rules that are no longer valid. In the civil-law tradition judges are seen as those who apply the law, with no power to create (or destroy) legal rules.

Secondly, the idea of separation of powers
Separation of powers
The separation of powers, often imprecisely used interchangeably with the trias politica principle, is a model for the governance of a state. The model was first developed in ancient Greece and came into widespread use by the Roman Republic as part of the unmodified Constitution of the Roman Republic...

 is another theory about how a democratic society's government should be organized. In contrast to legislative supremacy, the idea of separation of powers
Separation of powers
The separation of powers, often imprecisely used interchangeably with the trias politica principle, is a model for the governance of a state. The model was first developed in ancient Greece and came into widespread use by the Roman Republic as part of the unmodified Constitution of the Roman Republic...

 was first introduced by French philosopher Charles de Secondat, Baron de Montesquieu
Charles de Secondat, baron de Montesquieu
Charles-Louis de Secondat, baron de La Brède et de Montesquieu , generally referred to as simply Montesquieu, was a French social commentator and political thinker who lived during the Enlightenment...

; it was later institutionalized in the United States by the Supreme Court ruling in Marbury v. Madison
Marbury v. Madison
Marbury v. Madison, is a landmark case in United States law and in the history of law worldwide. It formed the basis for the exercise of judicial review in the United States under Article III of the Constitution. It was also the first time in Western history a court invalidated a law by declaring...

. Separation of powers
Separation of powers
The separation of powers, often imprecisely used interchangeably with the trias politica principle, is a model for the governance of a state. The model was first developed in ancient Greece and came into widespread use by the Roman Republic as part of the unmodified Constitution of the Roman Republic...

 is based on the idea that no branch of government should be more powerful than any other; each branch of government should have a check on the powers of the other branches of government, thus creating a balance of power among all branches of government. The key to this idea is checks and balances. In the United States, judicial review is considered a key check on the powers of the other two branches of government by the judiciary (although the power itself is only implicitly granted). Differences in organizing "democratic" societies led to different views regarding judicial review, with societies based on common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...

 and those stressing a separation of powers
Separation of powers
The separation of powers, often imprecisely used interchangeably with the trias politica principle, is a model for the governance of a state. The model was first developed in ancient Greece and came into widespread use by the Roman Republic as part of the unmodified Constitution of the Roman Republic...

 being the most likely to utilize judicial review. Nevertheless, many countries whose legal systems are based on the idea of legislative supremacy have learned the possible dangers and limitations of entrusting power exclusively to the legislative branch of government. Many countries with civil-law systems have adopted a form of judicial review to stem the tyranny of the majority
Tyranny of the majority
The phrase "tyranny of the majority" , used in discussing systems of democracy and majority rule, is a criticism of the scenario in which decisions made by a majority under that system would place that majority's interests so far above a dissenting individual's interest that the individual would be...

.

Another reason why judicial review should be understood in the context of both the development of two distinct legal systems (civil law
Civil law (legal system)
Civil law is a legal system inspired by Roman law and whose primary feature is that laws are codified into collections, as compared to common law systems that gives great precedential weight to common law on the principle that it is unfair to treat similar facts differently on different...

 and common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...

) and the two theories of democracy (legislative supremacy and separation of powers) is that some countries with common-law systems do not have judicial review of primary legislation. Though a common-law system is present in the United Kingdom, the country still has a strong attachment to the idea of legislative supremacy; consequently, the judicial body in the United Kingdom does not have the power to strike down primary legislation. However, since the United Kingdom became a member of the European Union
European Union
The European Union is an economic and political union of 27 independent member states which are located primarily in Europe. The EU traces its origins from the European Coal and Steel Community and the European Economic Community , formed by six countries in 1958...

 there has been tension between the UK's tendency toward legislative supremacy and the EU's legal system (which empowers the Court of Justice of the European Union
Court of Justice of the European Union
The Court of Justice of the European Union is the institution of the European Union which encompasses the whole judiciary. Seated in Luxembourg, it has three sub-courts; the European Court of Justice, the General Court and the Civil Service Tribunal.The institution was originally established in...

 with judicial review).

Judicial review of administrative acts


Most modern legal systems allow the courts to review administrative acts (individual decisions of a public body, such as a decision to grant a subsidy or to withdraw a residence permit). In most systems, this also includes review of secondary legislation (legally-enforceable rules of general applicability adopted by administrative bodies). Some countries (notably France and Germany) have implemented a system of administrative courts which are charged with resolving disputes between members of the public and the administration. In other countries (including the United States, United Kingdom and the Netherlands), judicial review is carried out by regular civil courts although it may be delegated to specialized panels within these courts (such as the Administrative Court within the High Court of England and Wales). The United States employs a mixed system in which some administrative decisions are reviewed by the United States district courts (which are the general trial courts), some are reviewed directly by the United States courts of appeals
United States courts of appeals
The United States courts of appeals are the intermediate appellate courts of the United States federal court system...

 and others are reviewed by specialized tribunals such as the United States Court of Appeals for Veterans Claims
United States Court of Appeals for Veterans Claims
The United States Court of Appeals for Veterans Claims is a federal court of record that was established under Article I of the United States Constitution...

 (which, despite its name, is not technically part of the federal judicial branch). It is quite common that before a request for judicial review of an administrative act is filed with a court, certain preliminary conditions (such as a complaint to the authority itself) must be fulfilled. In most countries, the courts apply special procedures in administrative cases.

Judicial review of primary legislation


There are three broad approaches to judicial review of the constitutionality of primary legislation
Primary legislation
Primary legislation is law made by the legislative branch of government. This contrasts with secondary legislation, which is usually made by the executive branch...

—that is, laws passed directly by an elected legislature. Some countries do not permit a review of the validity of primary legislation. In the United Kingdom, statutes cannot be set aside under the doctrine of parliamentary sovereignty
Parliamentary sovereignty
Parliamentary sovereignty is a concept in the constitutional law of some parliamentary democracies. In the concept of parliamentary sovereignty, a legislative body has absolute sovereignty, meaning it is supreme to all other government institutions—including any executive or judicial bodies...

. Another example is the Netherlands, where the constitution expressly forbids the courts to rule on the question of constitutionality of primary legislation.

In the United States, federal and state courts (at all levels, both appellate and trial) are able to review and declare the "constitutionality
Constitutionality
Constitutionality is the condition of acting in accordance with an applicable constitution. Acts that are not in accordance with the rules laid down in the constitution are deemed to be ultra vires.-See also:*ultra vires*Company law*Constitutional law...

", or agreement with the Constitution (or lack thereof) of legislation that is relevant to any case properly within their jurisdiction. In American legal language, "judicial review" refers primarily to the adjudication of constitutionality of statutes, especially by the Supreme Court of the United States
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...

. However the power of judicial review is not included in the United States Constitution
United States Constitution
The Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...

: the Supreme Court
Supreme court
A supreme court is the highest court within the hierarchy of many legal jurisdictions. Other descriptions for such courts include court of last resort, instance court, judgment court, high court, or apex court...

 is said to have 'discovered' this formidable power for itself. The ruling in Marbury v Madison (1803) was the first example of judicial review. In this ruling the Court stated that "it is emphatically the province and duty of the Judicial Department to say what the law is" and declared an Act of Congress
Act of Congress
An Act of Congress is a statute enacted by government with a legislature named "Congress," such as the United States Congress or the Congress of the Philippines....

 unconstitutional. A number of other countries whose constitutions provide for a review of the compatibility of primary legislation with the constitution have established special constitutional courts with authority to deal with this issue. In these systems, other courts are not competent to question the constitutionality of primary legislation.

Brazil adopts a mixed model since (as in the US) courts at all levels, both federal and state, are empowered to review primary legislation and declare its constitutionality; as in Germany, there is a constitutional court in charge of reviewing the constitutionality of primary legislation. The difference is that in the first case, the decision about the laws adequacy to the Brazilian Constitution only binds the parties to the lawsuit; in the second, the Court's decision must be followed by judges and government officials at all levels.

Judicial review in specific jurisdictions



See also

  • Discretionary review
    Discretionary review
    Discretionary review is the authority of appellate courts to decide which appeals they will consider from among the cases submitted to them. This offers the judiciary a filter on what types of cases are appealed, because judges have to consider in advance which cases will be accepted...

  • Graphē paranómōn
    Graphē paranómōn
    The graphē paranómōn , was a form of legal action believed to have been introduced at Athens under the democracy somewhere around the year 415 BC; it has been seen as a replacement for ostracism which fell into disuse around the same time.The name means "suit against contrary to the laws." The...

  • Judicial interpretation
    Judicial interpretation
    Judicial interpretation is a theory or mode of thought that explains how the judiciary should interpret the law, particularly constitutional documents and legislation...

  • List of constitutional courts
  • Rule according to higher law
    Rule according to higher law
    The rule according to a higher law means that no written law may be enforced by the government unless it conforms with certain unwritten, universal principles of fairness, morality, and justice...

  • Rule of law
    Rule of law
    The rule of law, sometimes called supremacy of law, is a legal maxim that says that governmental decisions should be made by applying known principles or laws with minimal discretion in their application...


External links

(Country by country case studies) (A comparison of modern constitutions) (A comparison of national judicial review doctrines) (This book traces the doctrine's history in an international/comparative fashion)(The effects of politics in law in Germany)