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Judicial review is a process under which
executive Executive may refer to: Role, title, or function * Executive (government), branch of government that has authority and responsibility for the administration of state bureaucracy * Executive, a senior management role in an organization ** Chief exec ...
or
legislative A legislature is a deliberative assembly with the authority to make laws for a political entity such as a country or city. Legislatures form important parts of most governments; in the separation of powers model, they are often contrasted with th ...
actions are subject to review by the
judiciary The judiciary (also known as the judicial system, judicature, judicial branch, judiciative branch, and court or judiciary system) is the system of courts that adjudicates legal disputes and interprets, defends, and applies the law in legal cases. ...

judiciary
. A court with authority for judicial review may invalidate laws, acts and governmental actions that are incompatible with a higher authority: an executive decision may be invalidated for being unlawful or a statute may be invalidated for violating the terms of a
constitution A constitution is an aggregate of fundamental principles or established precedents that constitute the legal basis of a polity, organisation or other type of entity and commonly determine how that entity is to be governed. When these principl ...
. Judicial review is one of the
checks and balances Separation of powers refers to the division of a state's government into branches, each with separate, independent powers and responsibilities, so that the powers of one branch are not in conflict with those of the other branches. The typical ...
in the
separation of powers Separation of powers refers to the division of a state's government into branches, each with separate, independent powers and responsibilities, so that the powers of one branch are not in conflict with those of the other branches. The typical ...
: the power of the judiciary to supervise the legislative and executive branches when the latter exceed their authority. The doctrine varies between jurisdictions, so the procedure and scope of judicial review may differ between and within countries.


General principles

Judicial review can be understood in the context of two distinct—but parallel—legal systems, civil law and
common law#REDIRECT common law#REDIRECT common law {{Redirect category shell, 1= {{R from other capitalisation ...
{{Redirect category shell, 1= {{R from other capitalisation ...
, and also by two distinct theories of democracy regarding the manner in which government should be organized with respect to the principles and doctrines of legislative supremacy and the separation of powers. First, two distinct legal systems, civil law and
common law#REDIRECT common law#REDIRECT common law {{Redirect category shell, 1= {{R from other capitalisation ...
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, have different views about judicial review. Common-law judges are seen as sources of law, capable of creating new legal principles, and also capable of rejecting legal principles 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 principles. Secondly, the idea of
separation of powers Separation of powers refers to the division of a state's government into branches, each with separate, independent powers and responsibilities, so that the powers of one branch are not in conflict with those of the other branches. The typical ...
is another theory about how a democratic society's government should be organized. In contrast to legislative supremacy, the idea of separation of powers was first introduced by
Montesquieu Charles-Louis de Secondat, Baron de La Brède et de Montesquieu (; ; 18 January 1689 – 10 February 1755), generally referred to as simply Montesquieu, was a French judge, man of letters, and political philosopher. He is the principal source o ...
; it was later institutionalized in the United States by the Supreme Court ruling in ''
Marbury v. Madison ''Marbury v. Madison'', 5 U.S. (1 Cranch) 137 (1803), was a landmark U.S. Supreme Court case that established the principle of judicial review in the United States, meaning that American courts have the power to strike down laws, statutes, and s ...
'' under the court of
John Marshall John Marshall (September 24, 1755July 6, 1835) was an American politician and lawyer who served as the fourth Chief Justice of the United States from 1801 to 1835. Marshall remains the longest-serving chief justice and fourth-longest serving jus ...
. Separation of powers is based on the idea that no branch of government should be able to exert power over any other branch without
due process of law Due process is the legal requirement that the state must respect all legal rights that are owed to a person. Due process balances the power of law of the land and protects the individual person from it. When a government harms a person without fo ...
; each branch of government should have a check on the powers of the other branches of government, thus creating a regulative balance among all branches of government. The key to this idea is
checks and balances Separation of powers refers to the division of a state's government into branches, each with separate, independent powers and responsibilities, so that the powers of one branch are not in conflict with those of the other branches. The typical ...
. In the United States, judicial review is considered a key check on the powers of the other two branches of government by the judiciary. Differences in organizing democratic societies led to different views regarding judicial review, with societies based on
common law#REDIRECT common law#REDIRECT common law {{Redirect category shell, 1= {{R from other capitalisation ...
{{Redirect category shell, 1= {{R from other capitalisation ...
and those stressing a
separation of powers Separation of powers refers to the division of a state's government into branches, each with separate, independent powers and responsibilities, so that the powers of one branch are not in conflict with those of the other branches. The typical ...
being the most likely to utilize judicial review. Nevertheless, many countries whose legal systems are based on the idea of legislative supremacy have gradually adopted or expanded the scope of judicial review, including countries from both the civil law and common law traditions. Another reason why judicial review should be understood in the context of both the development of two distinct legal systems ( civil law and
common law#REDIRECT common law#REDIRECT common law {{Redirect category shell, 1= {{R from other capitalisation ...
{{Redirect category shell, 1= {{R from other capitalisation ...
) and 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, judges in the United Kingdom do not have the power to strike down primary legislation. However, when the United Kingdom became a member of the
European Union The European Union (EU) is a political and economic union of member states that are located primarily in Europe. Its members have a combined area of and an estimated total population of about 447million. The EU has developed an internal s ...
there was tension between its tendency toward legislative supremacy and the EU's legal system, which specifically gives the
Court of Justice of the European Union The Court of Justice of the European Union (CJEU) (french: Cour de justice de l'Union européenne or "''CJUE''"; Latin: Curia) is the judicial branch of the European Union (EU). Seated in the Kirchberg quarter of Luxembourg City, Luxembourg, ...
the power of judicial review.


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 In parliamentary systems and presidential systems of government, primary legislation and secondary legislation, the latter also called delegated legislation or subordinate legislation, are two forms of law, created respectively by the legislative ...
(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 and United Kingdom), 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 High Court of Justice in London (formally "Her Majesty’s High Court of Justice in England"), together with the Court of Appeal and the Crown Court, are the Senior Courts of England and Wales. Its name is abbreviated as EWHC for legal cita ...
). The United States employs a mixed system in which some administrative decisions are reviewed by the
United States district courts The United States district courts are the general trial courts of the United States federal judiciary. Both civil and criminal cases are filed in district courts, each of which is a court of law, equity, and admiralty. There is a United States ...
(which are the general trial courts), some are reviewed directly by the
United States courts of appeals The United States courts of appeals or circuit courts are the intermediate appellate courts of the United States federal judiciary. The courts are divided into 13 circuits, and each hears appeals from the district courts within its borders, or i ...
and others are reviewed by specialized tribunals such as the
United States Court of Appeals for Veterans Claims The United States Court of Appeals for Veterans Claims (in case citations, Vet. App.) is a federal court of record that was established under Article I of the United States Constitution, and is thus referred to as an Article I tribunal (court). ...
(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.


Primary legislation

There are three broad approaches to judicial review of the constitutionality of
primary legislation In parliamentary systems and presidential systems of government, primary legislation and secondary legislation, the latter also called delegated legislation or subordinate legislation, are two forms of law, created respectively by the legislative ...
—that is, laws passed dir, another type of primary legislation not passed by Parliament, can (see ''
Council of Civil Service Unions v Minister for the Civil Service ''Council of Civil Service Unions v Minister for the Civil Service'' 984UKHL 9 or the GCHQ case, is a United Kingdom constitutional law and UK labour law case that held the Royal prerogative in the United Kingdom, royal prerogative was subject ...
'' (1985) and ''Miller''/''Cherry'' (2019)). Another example is the Netherlands, where the constitution expressly forbids the courts to rule on the question of constitutionality of primary legislation.


Review by general courts

In the United States, federal and state courts (at all levels, both appellate and trial) are able to review and declare the "
constitutionality Constitutionality is the condition of acting in accordance with an applicable constitution; the status of a law, a procedure, or an act's accordance with the laws or set forth in the applicable constitution. When laws, procedures, or acts direc ...
", or agreement with the Constitution (or lack thereof) of legislation by a process of
judicial interpretation Judicial interpretation refers to different ways that the judiciary uses to interpret the law, particularly constitutional documents, legislation and frequently used vocabulary. This is an important issue in some common law jurisdictions such as ...
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 The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States of America. It has ultimate (and largely discretionary) appellate jurisdiction over all federal and state court cases that invo ...

Supreme Court of the United States
. Courts in the United States may also invoke judicial review in order to ensure that a statute is not denying them of their constitutional rights. This is commonly held to have been established in the case of ''
Marbury v. Madison ''Marbury v. Madison'', 5 U.S. (1 Cranch) 137 (1803), was a landmark U.S. Supreme Court case that established the principle of judicial review in the United States, meaning that American courts have the power to strike down laws, statutes, and s ...
,'' which was argued before the Supreme Court in 1803. A similar system was also adopted in Australia.


Review by a specialized court

In 1920,
Czechoslovakia , , yi, טשעכאסלאוואקיי, , common_name = Czechoslovakia , life_span = 1918–19391945–1992 , p1 = Austria-Hungary , flag_p1 = Flag of Austria-Hungary 1869-1918.svg , s1 = Czech Republic , flag_s1 = Flag of the Czech Republic.svg , s2 = ...

Czechoslovakia
adopted a system of judicial review by a specialized court, the
Constitutional Court#REDIRECT Constitutional court#REDIRECT Constitutional court {{Redirect category shell, 1= {{R from other capitalisation ...
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as written by
Hans Kelsen Hans Kelsen (; ; October 11, 1881 – April 19, 1973) was an Austrian jurist, legal philosopher and political philosopher. He was the author of the 1920 Austrian Constitution, which to a very large degree is still valid today. Due to the rise of to ...
, a leading jurist of the time. This system was later adopted by
Austria Austria (, ; german: Österreich ), officially the Republic of Austria (german: Republik Österreich, links=no, ), is a landlocked East Alpine country in the southern part of Central Europe. It is composed of nine federated states (''Bund ...
and became known as the '' Austrian System'', also under the primary authorship of Hans Kelsen, being emulated by a number of other countries. In these systems, other courts are not competent to question the constitutionality of primary legislation; they often may, however, initiate the process of review by the Constitutional Court.The strength of the combination Government - Parliament ... far from outperform the reasons of the Constitutional scrutiny, makes the judicial review more necessary than ever: Russia 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 the Czech Republic, 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 law's adequacy to the Russian 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 by country


In specific jurisdictions

* *
Judicial review in Austria The European and Austrian constitutions endow the Austrian court system with broad powers of judicial review. All Austrian courts are charged with verifying that the statutes and ordinances they are about to apply conform to European Union law, and ...
* Judicial review in Bangladesh *
Judicial review in Canada In Canada, judicial review is the process that allows courts to supervise administrative tribunals' exercise of their statutory powers. Judicial review of administrative action is only available for decisions made by a governmental or quasi-governm ...
*
Constitutional Court of the Czech Republic The Constitutional Court of the Czech Republic ( cz, Ústavní soud České republiky) is a specialized type of court which primarily works to protect the people in the Czech Republic against violations of the Constitution by either the legislatu ...
* Judicial review in Denmark *
Judicial review in English law Judicial review is a part of UK constitutional law that enables people to challenge the exercise of power, often by a public body. A person who feels that an exercise of power is unlawful may apply to the Administrative Court (a division of the Hi ...
* Judicial review in Germany *
Judicial review in Hong Kong Judicial review in Hong Kong is conducted according to the Constitutional and Administrative Law List (Practice Direction 26.1). It comprises two different aspects: firstly, judicial review of domestic legislation as to their compatibility with the ...
*
Judicial review in India Judicial review is a process under which executive or legislative actions are subject to review by the judiciary. A court with authority for judicial review may invalidate laws acts and governmental actions that are incompatible with a higher auth ...
* Judicial review in Ireland * Judicial review in Malaysia *
Judicial review in New Zealand __NOTOC__ Judicial review, under which executive actions of the Government are subject to review, and possible invalidation, is used in New Zealand. Judicial review is carried out by a judge of the High Court of New Zealand. Legislative action is ...
*
Judicial review in the Philippines As early as 1936, the Philippine Supreme Court had unequivocally asserted its constitutional authority to engage in judicial review. This power was affirmed in the Supreme Court decision i''Angara v. Electoral Commission'' 63 Phil. 139 (1936). None ...
* Judicial review in Scotland * Judicial review in South Africa *
Constitutional Court of Korea The Constitutional Court of Korea () is an independent and specialised court in South Korea, whose primary role is the reviewing of constitutionality under the Constitution of the Republic of Korea. It also has administrative law functions such ...
* Judicial review in Sweden * Judicial review in Switzerland *
Judicial Yuan The Judicial Yuan () is the judicial branch of the government of the Republic of China on Taiwan.''See'' Constitution arts. 77-82, ''available at'' ''See'' Additional Articles of the Constitution art. 5, ''available at'' It runs a Constitutional ...
(Taiwan / Republic of China) *
Judicial review in the United States In the United States, judicial review is the legal power of a court to determine if a statute, treaty or administrative regulation contradicts or violates the provisions of existing law, a State Constitution, or ultimately the United States Consti ...


See also

* Judicial Appeal *
Judicial activismJudicial activism is a judicial philosophy holding that the courts can and should go beyond the applicable law to consider broader societal implications of its decisions. It is sometimes used as an antonym of judicial restraint.. It is usually a pejo ...
*
Living Constitution#REDIRECT Living Constitution {{R from other capitalisation ...
*
Originalism In the context of United States law, originalism is a concept regarding the interpretation of the Constitution that asserts that all statements in the constitution must be interpreted based on the original understanding "at the time it was a ...
*
Unconstitutional constitutional amendment An unconstitutional constitutional amendment is a concept in judicial review based on the idea that even a properly passed and properly ratified constitutional amendment, specifically one that is not explicitly prohibited by a constitution's text, ...


References


Further reading

* Edward S. Corwin, ''The Doctrine of Judicial Review: Its Legal and Historical Basis and Other Essays.'' Piscataway, New Jersey: Transaction Publishers, 2014. * R. L. Maddex, ''Constitutions of the World'', Washington, D.C.: CQ Press, 2008, .


External links

*
Section "Judicial Review"
in
Judicial Review: A Legal Guide
* (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) * Galera, S. (ed.), Judicial Review. A Comparative Analysis inside the European Legal System, Council of Europe, 2010,

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