The forms, functions, and varieties of weak(ened) judicial review

Abstract

Abstract The concept of “weak” judicial review is now a core concept in comparative constitutional analysis. Yet the relative weakness of judicial review will depend on a variety of factors, including the availability of formal mechanisms for legislative override or limiting courts’ jurisdiction, the difficulty of constitutional amendment, the scope of judicial review both in first- and second-look cases, and the actual practice of legislators and judges in a jurisdiction. The strength of judicial review is therefore not a true binary but rather a concept that spans multiple dimensions and a question of degree rather than kind. The desirability of weak as opposed to strong or even super-strong forms of review will likewise depend on a range of factors, which can and do vary across time and different contexts. This article thus aims to unpack the concept of weak-form review with a view to sharpening our understanding of both its internal complexity and relationship to questions of broader political context.