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Judicial review is a process under which
executive
Executive ( exe., exec., execu.) may refer to:
Role or title
* Executive, a senior management role in an organization
** Chief executive officer (CEO), one of the highest-ranking corporate officers (executives) or administrators
** Executive dir ...
,
legislative
A legislature is an assembly with the authority to make laws for a political entity such as a country or city. They are often contrasted with the executive and judicial powers of government.
Laws enacted by legislatures are usually known ...
and
administrative
Administration may refer to:
Management of organizations
* Management, the act of directing people towards accomplishing a goal
** Administrative Assistant, traditionally known as a Secretary, or also known as an administrative officer, administ ...
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 ...
.
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 the aggregate of fundamental principles or established precedents that constitute the legal basis of a polity, organisation or other type of Legal entity, entity and commonly determine how that entity is to be governed.
When ...
. 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 typic ...
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 typic ...
: 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
In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipresen ...
, 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
In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipresen ...
, 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 typic ...
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 princi ...
; 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 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 and statutes t ...
'' that the court had the power of judicial review. This was left uncontested by the U.S. Congress and president
Thomas Jefferson
Thomas Jefferson (April 13, 1743 – July 4, 1826) was an American statesman, diplomat, lawyer, architect, philosopher, and Founding Fathers of the United States, Founding Father who served as the third president of the United States from 18 ...
, 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
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 typic ...
. 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
In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipresen ...
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 typic ...
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
In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipresen ...
) 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 political and economic union of member states that are located primarily in Europe. The union has a total area of and an estimated total population of about 447million. The EU has often been des ...
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, Luxembour ...
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 which 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
In English law, natural justice is technical terminology for the rule against bias (''nemo iudex in causa sua'') and the right to a fair hearing (''audi alteram partem''). While the term ''natural justice'' is often retained as a general conc ...
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
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 democra ...
(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 U.S. federal judiciary. There is one district court for each federal judicial district, which each cover one U.S. state or, in some cases, a portion of a state. Each district co ...
s (which are the general trial courts), some are reviewed directly by the
United States courts of appeals
The United States courts of appeals are the intermediate appellate courts of the United States federal judiciary. The courts of appeals are divided into 11 numbered circuits that cover geographic areas of the United States and hear appeals f ...
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.
Review of primary legislation
There are three broad approaches to judicial review of the constitutionality of
primary legislation—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
Acts of Parliament, sometimes referred to as primary legislation, are texts of law passed by the legislative body of a jurisdiction (often a parliament or council). In most countries with a parliamentary system of government, acts of parliament be ...
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 all ...
, 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 (''King ...
, another type of primary legislation not passed by Parliament, can (see ''
'' (1985) and
''Miller''/''Cherry'' (2019)). Another example is the
Netherlands
)
, anthem = ( en, "William of Nassau")
, image_map =
, map_caption =
, subdivision_type = Sovereign state
, subdivision_name = Kingdom of the Netherlands
, established_title = Before independence
, established_date = Spanish Netherl ...
, 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
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 applicable constitution. When l ...
", 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 U.S. federal court cases, and over state court cases that involve a point o ...
. Courts in the United States may also invoke judicial review in order to ensure that a statute is not denying 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 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 and statutes t ...
,'' 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
The Colonial Laws Validity Act 1865 (28 & 29 Vict. c. 63) is an Act of the Parliament of the United Kingdom. Its long title is "An Act to remove Doubts as to the Validity of Colonial Laws".
The purpose of the Act was to remove any apparent inco ...
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.
Review by a specialized court
In 1920,
Czechoslovakia
, rue, Чеськословеньско, , yi, טשעכאסלאוואקיי,
, common_name = Czechoslovakia
, life_span = 1918–19391945–1992
, p1 = Austria-Hungary
, image_p1 ...
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 ...
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 ...
, a leading jurist of the time. This system was also adopted the same time by
Austria
Austria, , bar, Östareich officially the Republic of Austria, is a country in the southern part of Central Europe, lying in the Eastern Alps. It is a federation of nine states, one of which is the capital, Vienna, the most populous ...
and became known as the ''
Austrian System
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 legisl ...
'', 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.
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.
By country
The below table compares the approach of different countries to
constitutional review Constitutional review, or constitutionality review or constitutional control, is the evaluation, in some countries, of the constitutionality of the laws. It is supposed to be a system of preventing violation of the rights granted by the constitution ...
or judicial review as of 2010.
In specific jurisdictions
*
*
Judicial review in Austria
*
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-govern ...
*
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 legisl ...
*
Judicial review in Denmark
Judicial review is the procedure by which courts in Denmark assess whether laws are compatible with the Constitution of Denmark, and administrative acts are compatible with the law. The Constitution does not expressly authorise the courts to review ...
*
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 the ...
*
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 t ...
*
Judicial review in India
Judicial review in India is a process by which the Supreme Court and the High Courts of India review executive or legislative actions. They may invalidate amendments, laws, acts and governmental actions that are incompatible with the terms of th ...
*
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). No ...
*
Judicial review in Scotland
Judicial review in Scotland is a part of United Kingdom constitutional law that functions within the framework of Scots administrative law.
The power of judicial review of all actions of governmental and private bodies in Scotland is held by the ...
*
Judicial review in South Africa
A century ago, in '' Johannesburg Consolidated Investment Co v Johannesburg Town Council'', Innes CJ distinguished only three types of judicial review in the South African system:
# review of the decisions of inferior courts;
# the common-law revi ...
*
Judicial review in South Korea
*
Judicial review in Sweden
*
Judicial review in Switzerland
*
Judicial Yuan (Taiwan / Republic of China)
*
Judicial review in the United States
See also
*
Judicial Appeal
*
Judicial activism
Judicial 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. The term usually ...
*
Living Constitution
The Living Constitution, or judicial pragmatism, is the viewpoint that the United States Constitution holds a dynamic meaning that evolves and adapts to new circumstances even if the document is not formally amended. The Constitution is said ...
*
Originalism
In the context of United States law, originalism is a theory of constitutional interpretation that asserts that all statements in the Constitution must be interpreted based on the original understanding "at the time it was adopted". This conc ...
*
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
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,