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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 ...
,
legislative A legislature is an assembly Assembly may refer to: Organisations and meetings * Deliberative assembly A deliberative assembly is a gathering of members (of any kind of collective) who use parliamentary procedure Parliamentary procedure i ...
and
administrative Administration may refer to: Management of organizations * Management Management (or managing) is the administration of an organization, whether it is a business, a not-for-profit organization, or government body. Management includes 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 court A court is any person or institution, often as a government institution, with the authori ...
. 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 A principle is a proposition or value that is a guide for behavior or evaluation. In law, it is a rule Rule or ruling may refer to: Human activity * The exercise of political ...

constitution
. Judicial review is one of the
checks and balances Separation of powers refers to the division of a state (polity), state's government into branches, each with separate, independent power (social and political), powers and responsibilities, so that the powers of one branch are not in conflict ...
in the
separation of powers Separation of powers refers to the division of a state State may refer to: Arts, entertainment, and media Literature * ''State Magazine'', a monthly magazine published by the U.S. Department of State * The State (newspaper), ''The State'' ( ...
: 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 Civil law may refer to: * Civil law (common law) Civil law is a major branch of the law.Glanville Williams. ''Learning the Law''. Eleventh Edition. Stevens. 1982. p. 2. In common law legal systems such as England and Wales and the law of the United ...
and
common law In law, common law (also known as judicial precedent or judge-made law, or ) is the body of law created by judges and similar quasi-judicial by virtue of being stated in written opinions. ' is the most-used legal dictionary used among legal profe ...
, 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 Civil law may refer to: * Civil law (common law) Civil law is a major branch of the law.Glanville Williams. ''Learning the Law''. Eleventh Edition. Stevens. 1982. p. 2. In common law legal systems such as England and Wales and the law of the United ...
and
common law In law, common law (also known as judicial precedent or judge-made law, or ) is the body of law created by judges and similar quasi-judicial by virtue of being stated in written opinions. ' is the most-used legal dictionary used among legal profe ...
, 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 State may refer to: Arts, entertainment, and media Literature * ''State Magazine'', a monthly magazine published by the U.S. Department of State * The State (newspaper), ''The State'' ( ...
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, Lot-et-Garonne, Montesquieu (; ; 18 January 168910 February 1755), generally referred to as simply Montesquieu, was a French judge, intellectual, man of letters, historian, and po ...
; it was later institutionalized in the United States by the Supreme Court ruling in '' Marbury v. Madison'' 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 The chief justice of the United States is the chief judge of the Supreme Court of the United Stat ...

John Marshall
. 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 ...
; 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 (polity), state's government into branches, each with separate, independent power (social and political), powers and responsibilities, so that the powers of one branch are not in conflict ...
. 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 or judge-made law, or ) is the body of law created by judges and similar quasi-judicial by virtue of being stated in written opinions. ' is the most-used legal dictionary used among legal profe ...
and those stressing a
separation of powers Separation of powers refers to the division of a state State may refer to: Arts, entertainment, and media Literature * ''State Magazine'', a monthly magazine published by the U.S. Department of State * The State (newspaper), ''The State'' ( ...
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 Civil law may refer to: * Civil law (common law) Civil law is a major branch of the law.Glanville Williams. ''Learning the Law''. Eleventh Edition. Stevens. 1982. p. 2. In common law legal systems such as England and Wales and the law of the United ...
and
common law In law, common law (also known as judicial precedent or judge-made law, or ) is the body of law created by judges and similar quasi-judicial by virtue of being stated in written opinions. ' is the most-used legal dictionary used among legal profe ...
) 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 that are located primarily in . The union has a total area of and an estimated total population of about 447million. has been established through a standardised that apply in ...

European Union
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 Latin (, or , ) is a classical language belonging to the Italic languages, Italic branch of the Indo-European language ...
the power of judicial review.


Principles of review

When carrying out judicial review a court may ensure that the principle of
ultra vires ''Ultra vires'' (Latin Latin (, or , ) is a classical language belonging to the Italic languages, Italic branch of the Indo-European languages. Latin was originally spoken in the area around Rome, known as Latium. Through the power of the Rom ...
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 of judicial review


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 In parliamentary system A parliamentary system or parliamentary democracy is a system of democratic Democrat, Democrats, or Democratic may refer to: *A proponent of democracy Democracy ( gr, δημοκρατία, ''dēmokratiā'', f ...
(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 London is the and of and the . It stands on the in south-east England at the head of a down to the , and has been a major settlement for two millennia. The , its ancient core and financial cen ...
). 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 ...
(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 court An appellate court, commonly called a court of appeal(s), appeal court, court of second instance or second instance court, is any court of law tha ...
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 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 legislature ...
—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 In parliamentary systems and presidential systems of government, primary legislation and secondary legislation, the latter also called delegated legislation or subordinate legislat ...
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 The principles from the French Declaration of the Rights of Man and of the Citizen still have constitutional importan ...
, whereas
Orders in Council An Order in Council is a type of legislation in many countries, especially the Commonwealth realm A Commonwealth realm is a sovereign state that has Elizabeth II as its monarch and head of state. Each realm functions as an independent state, ...
, 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 to J ...
'' (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 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 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 dire ...
", 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 A vocabulary, also known as a wordstock or word-stock, is a set ...
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, federal judiciary of the United States of America. It has ultimate and largely Procedures of the Supreme Court of the United S ...

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 individuals of their constitutional rights. This is commonly held to have been established in the case of '' Marbury v. Madison,'' 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.


Review by a specialized court

In 1920,
Czechoslovakia , , yi, טשעכאסלאוואקיי, , common_name = Czechoslovakia , life_span = 1918–19391945–1992 , p1 = Austria-Hungary , image_p1 = , s1 = Czech Rep ...

Czechoslovakia
adopted a system of judicial review by a specialized court, the
Constitutional Court in the building of the former Moravian Parliament in Brno '' (BVerfG) in Karlsruhe A constitutional court is a Supreme court, high court that deals primarily with constitutional law. Its main authority is to rule on whether laws that are chall ...
as written by
Hans Kelsen Hans Kelsen (; ; October 11, 1881 – April 19, 1973) was an Austrian jurist A jurist is a person with expert knowledge of law; someone who analyses and comments on law. This person is usually a specialist legal scholarnot necessarily with a ...

Hans Kelsen
, 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 A landlocked country is a country that does not have territory connected to an ocean or whose coastli ...

Austria
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 Austria Austria (, ; german: Österreich ), officially the Republic of Austria (german: Republik Österreich, links=no, ), is a landlocked Eastern Alps, East Alpine country in the southern part of Central Europe. It is ...
* Judicial review in Bangladesh * Judicial review in Canada *
Constitutional Court of the Czech Republic The Constitutional Court of the Czech Republic ( cz, Ústavní soud České republiky) is a specialized type of court A court is any person or institution, often as a government institution, with the authority to Adjudication, adjudicate le ...
* 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 th ...
* Judicial review in Germany *
Judicial review in Hong Kong Judicial review 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 bureaucr ...
* Judicial review in India * Judicial review in Ireland * Judicial review in Malaysia * Judicial review in New Zealand * Judicial review in the Philippines *
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 C ...
* 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 Article 190 of the Swiss Federal Constitution states that federal statutes and international law are binding on the Swiss Federal Supreme Court. In consequence, the courts are not empowered to review the constitutionality of federal statutes, but ...
*
Judicial Yuan The Judicial Yuan () is the judicial branch of the government of the Republic of China The Government of the Republic of China, also known retroactively as the Government of Nationalist China, is the unitary government that exercises con ...
(Taiwan / Republic of China) *
Judicial review in the United States In the United States, judicial review is the legal power of a court A court is any person or institution, often as a government institution, with the authority to Adjudication, adjudicate legal disputes between Party (law), parties and carry ...


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 Judicial restraint i ...
*
Living Constitution The Living Constitution, or loose constructionism, is the claim that the United States Constitution hold a dynamic meaning that evolves and adapts to new circumstances even if the document is not formally amended. The Constitution is said to d ...
*
Originalism In the context of United States law, originalism is a concept regarding the constitutional interpretation, interpretation of the United States Constitution, Constitution that asserts that all statements in the constitution must be interprete ...
* Unconstitutional constitutional amendment


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,

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