Judicial review is a process under which a government's
executive,
legislative
A legislature (, ) is a deliberative assembly with the legal authority to make laws for a political entity such as a country, nation or city on behalf of the people therein. They are often contrasted with the executive and judicial powers ...
, or
administrative 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/disagreements and interprets, defends, and applies the law ...
.
In a judicial review, a court may invalidate laws, acts, or governmental actions that are incompatible with a higher authority. For example, 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 the aggregate of fundamental principles or established precedents that constitute the legal basis of a polity, organization or other type of entity, and commonly determines how that entity is to be governed.
When these pri ...
. Judicial review is one of the
checks and balances
The separation of powers principle functionally differentiates several types of state power (usually law-making, adjudication, and execution) and requires these operations of government to be conceptually and institutionally distinguishabl ...
in the
separation of powers
The separation of powers principle functionally differentiates several types of state (polity), state power (usually Legislature#Legislation, law-making, adjudication, and Executive (government)#Function, execution) and requires these operat ...
—the power of the judiciary to supervise (judicial supervision) 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. The judiciary in United States has been described as having unusually strong powers of judicial review from a comparative perspective.
General principles
Judicial review can be understood in the context of two distinct—but parallel—legal systems,
civil law and
common law
Common law (also known as judicial precedent, judge-made law, or case law) is the body of law primarily developed through judicial decisions rather than statutes. Although common law may incorporate certain statutes, it is largely based on prece ...
, 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
Common law (also known as judicial precedent, judge-made law, or case law) is the body of law primarily developed through judicial decisions rather than statutes. Although common law may incorporate certain statutes, it is largely based on prece ...
, 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
The separation of powers principle functionally differentiates several types of state (polity), state power (usually Legislature#Legislation, law-making, adjudication, and Executive (government)#Function, execution) and requires these operat ...
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 168910 February 1755), generally referred to as simply Montesquieu, was a French judge, man of letters, historian, and political philosopher.
He is the principal so ...
; it was later institutionalized in the United States by the Supreme Court's ruling in ''
Marbury v. Madison
''Marbury v. Madison'', 5 U.S. (1 Cranch) 137 (1803), was a landmark decision of the U.S. Supreme Court that established the principle of judicial review, meaning that American courts have the power to strike down laws and statutes they find ...
'' that the court had the power of judicial review to enforce the separation of powers stated in the US Constitution. This was left uncontested by the U.S. Congress and president
Thomas Jefferson
Thomas Jefferson (, 1743July 4, 1826) was an American Founding Fathers of the United States, Founding Father and the third president of the United States from 1801 to 1809. He was the primary author of the United States Declaration of Indepe ...
, despite his expressed opposition to the principle of judicial review by an unelected body.
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; 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
The separation of powers principle functionally differentiates several types of state power (usually law-making, adjudication, and execution) and requires these operations of government to be conceptually and institutionally distinguishabl ...
. 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
Common law (also known as judicial precedent, judge-made law, or case law) is the body of law primarily developed through judicial decisions rather than statutes. Although common law may incorporate certain statutes, it is largely based on prece ...
and those stressing a
separation of powers
The separation of powers principle functionally differentiates several types of state (polity), state power (usually Legislature#Legislation, law-making, adjudication, and Executive (government)#Function, execution) and requires these operat ...
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
Common law (also known as judicial precedent, judge-made law, or case law) is the body of law primarily developed through judicial decisions rather than statutes. Although common law may incorporate certain statutes, it is largely based on prece ...
) 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 supranational union, supranational political union, political and economic union of Member state of the European Union, member states that are Geography of the European Union, located primarily in Europe. The u ...
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) ( or "''CJUE''"; Latin: Curia) is the Judiciary, judicial branch of the European Union (EU). Seated in the Kirchberg, Luxembourg, Kirchberg quarter of Luxembourg City, Luxembourg, this EU ins ...
the power of judicial review.
Principles of review
When carrying out judicial review a court may ensure that the principle of
ultra vires
('beyond the powers') is a Latin phrase used in law to describe an act that requires legal authority but is done without it. Its opposite, an act done under proper authority, is ('within the powers'). Acts that are may equivalently be termed ...
are followed, that a public body's actions do not exceed the powers given to them by legislation.
The decisions of administrative acts by public bodies under judicial review are not necessarily controlled in the same way that judicial decisions are, rather a court will enforce that principles of
procedural fairness are followed when making judicial decisions.
Types
Review of administrative acts and secondary legislation
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
Secondary may refer to: Science and nature
* Secondary emission, of particles
** Secondary electrons, electrons generated as ionization products
* The secondary winding, or the electrical or electronic circuit connected to the secondary winding ...
(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, regardless these courts are part of administration (France) or judiciary (Germany). 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, known properly as His 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 (England ...
). The United States employs a mixed system in which some administrative decisions are reviewed by the
United States district court
The United States district courts are the trial courts of the United States federal judiciary, U.S. federal judiciary. There is one district court for each United States federal judicial district, federal judicial district. Each district cov ...
s (which are the general trial courts), some are reviewed directly by the
United States courts of appeals and others are reviewed by specialized tribunals such as the
United States Court of Appeals for Veterans Claims
United may refer to:
Places
* United, Pennsylvania, an unincorporated community
* United, West Virginia, an unincorporated community
Arts and entertainment Films
* ''United'' (2003 film), a Norwegian film
* ''United'' (2011 film), a BBC Two f ...
(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.
Review of primary legislation
There are three broad approaches to judicial review of the constitutionality of
primary legislation
Primary legislation and secondary legislation (the latter also called delegated legislation or subordinate legislation) are two forms of law, created respectively by the legislative and executive branches of governments in representative democ ...
—that is, laws passed directly by an elected legislature.
No review by any courts
Some countries do not permit a review of the validity of primary legislation. In the United Kingdom,
Acts of Parliament cannot be set aside under the doctrine of
parliamentary sovereignty
Parliamentary sovereignty, also called parliamentary supremacy or legislative supremacy, is a concept in the constitutional law of some parliamentary democracies. It holds that the legislative body has absolute sovereignty and is supreme over al ...
, whereas
Orders in Council
An Order in Council is a type of legislation in many countries, especially the Commonwealth realms. In the United Kingdom, this legislation is formally made in the name of the monarch by and with the advice and consent of the Privy Council ('' ...
, another type of primary legislation not passed by Parliament, can (see ''
'' (1985) and
''Miller''/''Cherry'' (2019)). Another example is the
Netherlands
, Terminology of the Low Countries, informally Holland, is a country in Northwestern Europe, with Caribbean Netherlands, overseas territories in the Caribbean. It is the largest of the four constituent countries of the Kingdom of the Nether ...
, where the constitution expressly forbids the courts to rule on the question of constitutionality of primary legislation passed by the Dutch legislature or ''
States-General''.
Review by general courts
In countries which have inherited the English common law system of courts of general jurisdiction, judicial review is generally done by those courts, rather than specialised courts. Australia, Canada and the United States are all examples of this approach.
In the United States, federal and state courts (at all levels, both appellate and trial) are able to review and declare the "
constitutionality
In constitutional law, constitutionality is said to be the condition of acting in accordance with an applicable constitution; "Webster On Line" the status of a law, a procedure, or an act's accordance with the laws or set forth in the applic ...
", or agreement with the Constitution (or lack thereof) of legislation by a process of
judicial interpretation that is relevant to any case properly within their jurisdiction. In American legal language, "judicial review" refers primarily to the adjudication of the 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. It has ultimate appellate jurisdiction over all Federal tribunals in the United States, U.S. federal court cases, and over Stat ...
. Courts in the United States may also invoke judicial review in order to ensure that a statute is not depriving individuals 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 decision of the U.S. Supreme Court that established the principle of judicial review, meaning that American courts have the power to strike down laws and statutes they find ...
,'' which was argued before the Supreme Court in 1803.
Judicial review in Canada and Australia pre-dates their establishment as countries, in 1867 and 1901, respectively. The British
Colonial Laws Validity Act 1865 provided that a British colony could not enact laws which altered provisions of British laws which applied directly to the colony. Since the constitutions of Canada and Australia were enacted by the British Parliament, laws passed by governments in Australia and Canada had to be consistent with those constitutional provisions. More recently, the principle of judicial review flows from supremacy clauses in their constitutions. In Australia, the term 'judicial review' generally refers to reviews of the lawfulness of the actions of the executive and the public service, while reviews of the compatibility of laws with the Australian Constitution is known as characterisation or constitutional challenges.
Review by a specialized court
In 1920,
Czechoslovakia
Czechoslovakia ( ; Czech language, Czech and , ''Česko-Slovensko'') was a landlocked country in Central Europe, created in 1918, when it declared its independence from Austria-Hungary. In 1938, after the Munich Agreement, the Sudetenland beca ...
adopted a system of judicial review by a specialized court, the
Constitutional Court
A constitutional court is a high court that deals primarily with constitutional law. Its main authority is to rule on whether laws that are challenged are in fact unconstitutional, i.e. whether they conflict with constitutionally established ru ...
as written by
Hans Kelsen
Hans Kelsen (; ; October 11, 1881 – April 19, 1973) was an Austrian and later American jurist, legal philosopher and political philosopher. He is known principally for his theory of law, which he named the " pure theory of law (''Reine Rechts ...
, a leading jurist of the time. This system was also adopted the same time by
Austria
Austria, formally the Republic of Austria, is a landlocked country in Central Europe, lying in the Eastern Alps. It is a federation of nine Federal states of Austria, states, of which the capital Vienna is the List of largest cities in Aust ...
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.
History
Judicial review as a contribution to political theory is sometimes said to be a "distinctively American contribution",
argued to have been established in the US Supreme Court's decision in ''
Marbury v. Madison
''Marbury v. Madison'', 5 U.S. (1 Cranch) 137 (1803), was a landmark decision of the U.S. Supreme Court that established the principle of judicial review, meaning that American courts have the power to strike down laws and statutes they find ...
'' (1803). However, "the American version of judicial review was the logical result of centuries of European thought and colonial experience which had made Western
ocietiesgenerally willing to admit the theoretical primacy of certain kinds of law and had made Americans in particular ready to provide a judicial means of enforcing that primacy."
[
That is, the "belief in the need to subordinate certain acts of the law-making power to higher, more permanent principles"][ can be seen, for example, in medieval European scholastics, courts of equity in England, in France, and Enlightenment philosophers. Moreover, writing in 2005, Treanor argued that "judicial review was much better established in the years immediately after the adoption of the nited Statesconstitution than has previously been recognized, and it was far from rare ... ndjudicial invalidation of statutes fell into certain patterns."] US Chief Justice John Marshall, the author of ''Marbury v. Madison'', "came from Virginia, the state in which udicial reviewwas particularly well established by the case law and in which it was repeatedly endorsed during the debate over the Constitution", and thus, on a personal level, Marshall "must have experienced judicial review as long-established".[ Moreover, "The fact that judicial review was exercised much more frequently than previously recognized in the years before Marbury helps explain why Marshall's assertion of the power to exercise judicial review in the case elicited so little comment."][
]
In specific jurisdictions
*
* Judicial review in Austria
* Judicial review in Bangladesh
* Judicial review in Canada
* Constitutional Court of the Czech Republic
The Constitutional Court of the Czech Republic () is the Supreme court, supreme constitutional Judiciary of the Czech Republic, court in the Czech Republic and the ''de facto'' highest and most powerful court in the land.
It has its basis in ...
* 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, usually by a public body. A person who contends that an exercise of power is unlawful may apply to the Administrative Court (a part of t ...
* Judicial review in Germany
* Judicial review in Hong Kong
* Judicial review in India
* Judicial review in Ireland
* Judicial review in Japan
* Judicial review in Malaysia
* Judicial review in New Zealand
* Judicial review in the Philippines
* Judicial review in Scotland
* Judicial review in South Africa
* Judicial review in South Korea
* Judicial review in Sweden
* Judicial review in Switzerland
* Judicial Yuan
The Judicial Yuan () is the Judiciary, judicial branch of the Republic of China.''See'' Constitution arts. 77-82, ''available at'' ''See'' Additional Articles of the Constitution art. 5, ''available at'' It functions as the Constitutional Cour ...
(Taiwan / Republic of China)
* Judicial review in the United States
* Judicial supervision (Soviet Union)
See also
* Constitutional review
* Judicial Appeal
* Judicial activism
* Living Constitution
* Originalism
Originalism is a legal theory in the United States which bases constitutional, judicial, and statutory interpretation of text on the original understanding at the time of its adoption. Proponents of the theory object to judicial activism ...
* 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 ...
* Judicial reform
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
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,
{{DEFAULTSORT:Judicial Review
Judicial review,