Judicial disapproval as a constitutional technique

Abstract

In this article, I consider judicial disapproval as a form of non-binding review of the constitutionality of legislation. Judicial disapproval is epitomized by the “declaration of incompatibility”—a concept that is commonly thought to have been pioneered in the United Kingdom in the 1990s. I show that the concept in fact has a considerably longer history. In the 1940s, the concept was envisaged and endorsed by Britain’s principal contributor to the drafting of the European Convention on Human Rights, David Maxwell Fyfe, and by Hersch Lauterpacht in his work on the incorporation of an international bill of rights into national legal systems. Variants on the concept were also examined and given some credence by American constitutional thinkers during the Revolutionary era and the early Republic. After considering the history of judicial disapproval as a constitutional technique, I offer some observations on the differences between judicial disapproval and Marbury-style judicial review. I conclude with a brief explanation as to why judicial disapproval is likely to persist as a form of rights review in the United Kingdom, whatever the fate of the Human Rights Act 1998.