Judicial Review Of Legislation Research Articles

Courts and marginalized groups: Perspectives from Continental Europe

Until mid-twentieth century, Continental European judiciaries were considered integral with the established order. Today, the situation has changed: the subordination of the judge to political majorities is declining. Judicial review of legislation has been introduced, and judicial independence strengthened. These institutional changes have supported the development of judicial activism. Organized judicial groups have emerged — especially in France, Italy, and Spain — advocating a progressive jurisprudence and developing policies aiming at defending minorities and marginalized groups. The judiciary, traditionally considered a conservative organization, now seems to be willing to carry out progressive policies. To assess the judiciary’s role in protecting marginalized groups in Continental Europe is not easy. The matter is extremely complex. There are not enough systematic data on judicial decisions, and there is even less on the extent to which these decisions are implemented or on the ways in which this implementation occurs. 1 However, until the middle of the twentieth century, judiciaries on the Continent were generally considered pillars of the established order; they would not have concerned themselves greatly with such groups. Today, the situation has changed. The subordination of the judge to the law — that is, to a parliament and, therefore, to political majorities — has been eroded. Judicial review of legislation has increasingly become a trait of European political systems, and judicial independence has been strengthened almost everywhere. In some countries, these institutional changes have supported the development of forms of judicial activism. In fact, in the last decades, organized groups have emerged within the judicial corps — especially in France, Italy, and Spain — that openly advocate some sort of progressive or radical jurisprudence and trying to develop policies with the aim of defending minorities and marginalized groups. A puzzling landscape — seems to be emerging in these countries: the judiciary — traditionally considered a corps where conservative,

The Core of the Case against Judicial Review

This Essay states the general case against judicial review of legislation clearly and in a way that is uncluttered by discussions of particular decisions or the history of its emergence in particular systems of constitutional law. The Essay criticizes judicial review on two main grounds. First, it argues that there is no reason to suppose that rights are better protected by this practice than they would be by democratic legislatures. Second, it argues that, quite apart from the outcomes it generates, judicial review is democratically illegitimate. The second argument is familiar; the first argument less so. However, the case against judicial review is not absolute or unconditional. In this Essay, it is premised on a number of conditions, including that the society in question has good working democratic institutions and that most of its citizens take rights seriously (even if they may disagree about what rights they have). The Essay ends by considering what follows from the failure of these conditions. author. University Professor in the School of Law, Columbia University. (From July 2006, Professor of Law, New York University.) Earlier versions of this Essay were presented at the Colloquium in Legal and Social Philosophy at University College London, at a law faculty workshop at the Hebrew University of Jerusalem, and at a constitutional law conference at Harvard Law School. I am particularly grateful to Ronald Dworkin, Ruth Gavison, and Seana Shiffrin for their formal comments on those occasions and also to James Allan, Aharon Barak, Richard Bellamy, Aileen Cavanagh, Arthur Chaskalson, Michael Dorf, Richard Fallon, Charles Fried, Andrew Geddis, Stephen Guest, Ian Haney-Lopez, Alon Harel, David Heyd, Sam Issacharoff, Elena Kagan, Kenneth Keith, Michael Klarman, John Manning, Andrei Marmor, Frank Michelman, Henry Monaghan, Veronique Munoz-Darde, John Morley, Matthew Palmer, Richard Pildes, Joseph Raz, Carol Sanger, David Wiggins, and Jo Wolff for their suggestions and criticisms. Hundreds of others have argued with me about this issue over the years: This Essay is dedicated to all of them, collegially and with thanks. WALDRON 3/23/2006 6:53:29 PM the core of the case against judicial review

Judicial Review of Legislation in Israel: Problems and Implications of Possible Reform

Since the 1980s, the Israeli Supreme Court's involvement in controversial political and social issues that dominate the public sphere has increased significantly. Israel's cleavages and socio-polit...

The Establishment of Constitutional Courts: A Study of 128 Democratic Constitutions

The judicial review of legislation can be configured in any of a number of ways. In particular this task may be concentrated in a constitutional court, or diffused among ordinary judges. Recent studies have shown that the design of judicial institutions can have important legal, social, and economic consequences for a given polity. Scholars have dwelled on the reasons that lead political actors to the choice of one model of judicial review over another, but there has been little empirical study on this choice. Here, several hypotheses as to the circumstances that lead to the establishment of constitutional courts are tested on the basis of a data set of 128 democratic constitutions. I find that the degree of political uncertainty facing politicians is an important predictor of whether or not a constitutional court will be established.

El sentido del positivismo jurídico (II): el positivismo jurídico prescriptivo como un derecho humano

Continúa aquí defendiéndose el iuspositivismo "prescriptivo" o "ético" ya esbozado en la primera parte de este artículo (Doxa, núm 25): entender el iuspositivismo como una teoría normativa (no conceptual ni descriptiva) sobre la forma del Derecho como gobierno de reglas claras y precisas empíricamente aplicables sin recurrir a opiniones morales. Ahora se muestra cómo lo anterior constituye un derecho humano vinculado a la democracia y a la igualdad: los derechos humanos incorporan la idea del imperio de la ley, pero de la ley positiva en ese sentido formal. En consecuencia, la tarea de articular los derechos humanos es de los gobiernos y los parlamentos, no de los tribunales ni de la Constitución, siendo el control judicial sustantivo sobre las leyes algo básicamente antidemocrático. Por último, la disputa conceptual entre el iuspositivismo incluyente y el excluyente debe reformularse como una disputa moral y política sobre qué órgano ha de determinar el contenido de las reglas y sobre si la regla de reconocimiento debe o no contener criterios morales.

Political Ignorance and the Countermajoritarian Difficulty: A New Perspective on the 'Central Obsession' of Constitutional Theory

This Article is the first ever to assess the significance of widespread political ignorance in the American electorate for the countermajoritarian difficulty. It argues that voter ignorance greatly reduces the extent to which judicial review should be considered countermajoritarian, because most legislation is passed without even the knowledge of the majority of voters, much less their active support. It also contends that political ignorance shows several new ways in which judicial review can actually reinforce majoritarian democracy rather than undermine it. The countermajoritarian difficulty holds that judicial review of laws enacted by legislatures is problematic because it subverts the will of electoral majorities. My Article shows that this claim rests on the assumption that a majority of voters have at least a basic level of political knowledge. Several decades of political science research has found that the political knowledge levels of the American electorate are uniformly low. This Article extends this finding with recent evidence from the 2000 National Election Study (NES). The Article shows that average levels of voter knowledge are so low that they fall well below the thresholds required by even the least demanding theories of democratic representation. For this reason, judicial review has far less countermajoritarian effect, in most cases, than is usually supposed. Moreover, to the extent that judicial review limits the scope of government power, it may actually strengthen majoritarian democracy by reducing the knowledge burden on voters. If the scope and complexity of government is reduced by judicial review, voters will have fewer policy areas to keep track of, enabling them to better control the remaining functions of the state. The last two Parts of the Article consider the implications of my argument for judicial review of federalism and judicial review of legislation discriminating against women and African-Americans. Judicial review of federalism is often criticized on countermajoritarian grounds. I argue that this criticism is misguided in light of widespread political ignorance, and that judicial limits on federal power might actually strengthen majoritarian control of government by enabling citizens to vote with their feet as well as at the ballot box. In Part VI, I contend that theories of the countermajoritarian difficulty must take account of the large gap in political knowledge between men and women and whites and African-Americans. Disproportionately low political knowledge levels among African-Americans and women severely disadvantage them in the political process and justify heightened judicial scrutiny of legislation intended to discriminate against these two groups, especially given that their knowledge deficits are in part a result of past discrimination. This Article is not a comprehensive theory of the countermajoritarian difficulty, nor does it provide a complete theory of federalism or race and gender issues in constitutional law. It does however show the importance of voter ignorance to all three subjects, an importance that the existing literature has neglected.

The logic of justification of judicial review

This article does not attempt to provide a justification for judicial review of legislation, but rather provides a critical analysis of existing justifications. All theories of justification must reconcile two propositions: that courts partake in the final formulation of legislation and that they nonetheless implement the fundamental principles embodied in the political will of the people. On the one hand, courts must safeguard the supremacy of the constitution as positive law; on the other, they must not inhibit democracy. None of the existing justifications is fully convincing, either because they are too difficult to reconcile with democracy or, more surprising, because they divide the sovereign into two and superimpose a hierarchy on the resulting halves.

Freeman's defense of Judicial Review

In a recent article entitled "Constitutional Democracy and the Legitimacy of Judicial Review," Samuel Freeman has offered a challenging critique of the claim still commonly heard in constitutional jurisprudence that the judicial review of legislation (on the basis of a Bill of Rights) is undemocratic.1 The claim, he concedes, is trivially true for anyone who stipulatively defines "democratic" in terms of majoritarian procedures. But it is not trivially true indeed he thinks it is not true at all if "democratic" is defined more generously to include the rule of law, civil liberties and equality of opportunity. "There is," says Professor Freeman in the conclusion of his article, "nothing undemocratic (and it is disingenuous to claim there is) about the judicial review of laws that infringe against the equality of such fundamental moral rights as liberty of conscience and freedom of thought, freedom of association, freedom of occupation and choice of careers, political participation, and, more generally, the freedom to pursue one's own plan of life."2 I am not sure anything is gained in this debate by one side calling the other "disingenuous". Judicial review of legislation is now such a familiar feature of American political culture that people here are inclined to accept its democratic credentials without question. But it is a live and open issue in other countries most notably in the Charter 88 campaign for constitutional reform in the U.K. Having studied (and

Judicial Review and Social Change in the Korean Democratizing Process

Since the massive anti-government protest and the following constitutional reforms of 1987, Korea has been in the process of gradual democratization. Among the remarkable changes in various fields, the recent active operation of constitutional adjudication is particularly notable from a socio-legal point of view. At the outset, it would be appropriate to provide a brief historical overview of judicial review in Korea.' There is probably no other country which has experienced so many changes in its judicial review system within such a relatively short period of time. Since the establishment of the first, democratic Constitution of 1948, Korea has had a judicial review system in one form or another, varying in type from the European to the American, or mixed. With each change of government, and the consequent Constitutional revision, the judicial review system also changed. What is significant from a socio-legal perspective is the actual working of the judicial review system rather than its institutional form. During the First Republic (1948-1960), the Constitutional Committee, with the power of judicial review of legislation, reviewed only 7 cases, including 2 cases in which it struck down laws restricting the right of appeal to the Supreme Court. Under the Constitution of the Second Republic (1960-1961), the Constitutional Court was formed on the German model. This system, however, had no opportunity to function at all due to the military coup in 1961. The Constitution of the Third Republic (1961-1972) adopted a judicial review system of the American type. In the 10 years of its operation, the Supreme Court held a law unconstitutional in only one instance. The challenged law was a statute which restricted the right of military servicemen and policemen to claim damage redress against the state. In the aftermath of this decision, when Justices were considered for reappointment under the new Constitution of

From Fundamental Law to the Supreme Law of the Land: A Reinterpretation of the Origin of Judicial Review

For a long time the question of whether the framers of the U.S. Constitution intended to establish judicial review of legislation was the subject of extensive and repeated investigation. The issue, however, was never definitively resolved, a consequence, it is widely agreed, of ambiguities and internal contradictions in the early record. More recently, interest in this basic question has declined, and it has simply been assumed that some form of judicial review was contemplated by the framers. At the same time support for the practice has deepened, and the debate, although still heated, has shifted to different grounds.

Canada's New Charter of Rights

Canada was forned in 1867 by the union of three of the British North American colonies.' These colonies differed from the republic the south in their loyalty the British Crown. That loyalty manifested itself not only in a continuing colonial relationship between the new Dominion of Canada and the United Kingdom,2 but also in an acceptance by the Canadians of British political and constitutional values. Chief among these values was the sovereignty of Parliament, defined by Dicey as the power to make or unmake any law whatever.3 In the United Kingdom there were, and perhaps still are, no limits on legislative power.4 No constituent instrument is protected from ordinary legislative change,5 and in particular no bill of rights denies the Parliament the power destroy or curtail civil liberties. Judicial review of legislation is therefore unheard of in the United Kingdom. The federal character of the new Dominion of Canada required that legislative power be distributed between the federal Parliament

Judicial Review of Legislation. By V. S. Deshpande. [Lucknow: Eastern Book Co.1975. 311 pp.

Judicial Review of Legislation. By V. S. Deshpande. [Lucknow: Eastern Book Co.1975. 311 pp.

Pickin and Its Applicability to Canada

Canadian judicial respect for the legislature's supremacy over the courts has pervaded the interpretation of statutes and the elaboration of our common law. Because of this fact it is important that we understand the nature and limits of judicial review of legislation. One significant issue in this regard is the extent to which the courts may examine the legislative process leading up to the enactment of a bill. This issue came before the House of Lords in the decision of British Railways Board v Pickin. The author traces the elements of the doctrine of legislative supremacy to the doctrines of the conclusiveness of statutes and the legislature’s inherent right to control its internal proceedings. The Paper examines whether such doctrines are applicable to Canada.

Judicial Review of Legislation in Canada, by B. L. STRAYER, Toronto, University of Toronto Press, 1968, 275 pages, $15.00.

Judicial Review of Legislation in Canada, by B. L. STRAYER, Toronto, University of Toronto Press, 1968, 275 pages, $15.00.. Un article de la revue Les Cahiers de droit (Volume 11, numéro 1, 1970, p. 7-194) diffusée par la plateforme Érudit.

Judicial Review of Legislation in Canada

Judicial Review of Legislation in Canada

Judicial Review of Legislation: European Antecedents and Adaptations

Judicial Review of Legislation: European Antecedents and Adaptations

REVIEWS

Book reviewed in this article:Philosophy of Law. By Gforgfo Del Vecchio (translated from the 8th edition by Thomas Owen Martin).The English Legal System. By A. K. R. Kiralfy, ph.d., ll.m., of Gray's Inn, Barrister‐at‐Law.The English Legal System. Third Edition. By G. R. Y. Radcliffe and Geoffrey Cross.The Book of English Law. By the late Edward Jenks, d.c.l. (oxon).Tax Planning with Precedents. By D. C. Potter, ll.b., and H. H. Monroe, ma., Barristers‐at‐Law, assisted by H. G. S. Plunkett, Barrister‐at‐Law, and formerly one of H.M. Inspectors of Taxes.Marsden on Collisions at Sea. Tenth Edition. By Kenneth C. McGuffie, b.l.Temperley on the Merchant Shipping Acts. Fifth Edition. By the Hon. Sir William L. McNair, ll.m., and John P. Honour, m.a.Survey of African Marriage and Family Life (by Lucy Mair, Arthur Phillips and the Rev. Lyndon Harries). Edited by Arthur Phillips. Published for the International African Institute by Oxford University Press and Geoffrey Cumberlege.The Administration of Justice and the Urban African. By A. L. Epstein. Colonial Research Studies No. 7.Judicial Review of Legislation in New York, 1906–1938. By Franklin A. Smith, ph.d.American‐French Private International Law. By Georges Delaume, Docteur en droit (Paris), Counsellor, Legal Department, International Monetary Fund. Bilateral Studies in Private International Law, No. 2.A Register of Legal Documentation in the World. Prepared by the International Committee of Comparative Law with the support of the International Committee for Social Science Documentation.

Judicial Review of Legislation: A Comparative Study of the Austrian and the American Constitution

The Austrian Constitution discussed here is that of October 1, 1920, as valid January 1, 1930; that day the text of the Constitution was officially published by an act of the Austrian Chancellor in the Bundesgesetzblatt fiur die Republik osterreich (the official Gazette for the obligatory publications of statutes). All later amendments will not be considered because they were enacted under a semi-fascist regime and had the tendency to restrict the democratic control of the constitutionality of legislation. The Austrian Constitution of 1920-30 provided for guarantees to assure the constitutionality not only of statutes but also of ordinances. The latter were general legal rules enacted by administrative organs and not by a parliament, that is by a legislative organ. In Austria, as well as in other countries of the European continent these ordinances played a much greater role than in the United States. There were two kinds of ordinances: Ordinances based statutes, i.e. ordinances the function of which was to execute the statutes, and ordinances which, like statutes, were enacted directly on the basis of the constitution, that is ordinances issued in place of statutes. The significance of ordinances is due to the peculiar position which the administrative authorities occupy in the legal systems of the European continent. There they have, in their capacity as law-applying organs, the same rank as courts. The administrative act has in principle the same legal effect as a judicial decision. Besides, the administra-

Judicial Review of Legislation under the Austrian Constitution of 1920

When Canada set up a federal system of government in 1867, she had nearly eighty years of American experience to build upon. Consequently, she was able to evade many of the problems in which we find ourselves entangled today. When Austria provided for judicial review in her constitution of 1920, she could profit from more than a century and a quarter of American experience, as well as from the various modifications of the American plan to be found in the British Dominions and elsewhere. Hence, we should not be surprised to learn that in the opinion of Dr. Hans Kelsen the theory and practice of judicial control of legislation reached a more complete development in Austria than in any other nation.

Some Phases of the Theory and Practice of Judicial Review of Legislation in Foreign Countries

It is no longer customary to the extent that it formerly was to maintain that judicial review of legislation and the consequent annulment of laws is an exclusively American political practice. With the courts of at least a score of countries passing on the validity of legislative acts, and occasionally refusing to apply them in concrete cases, the American method of guarding constitutions, characterized in the eighteenth and nineteenth centuries as a new political phenomenon, has now an extensive application among the countries operating under written fundamental laws.Interesting developments are taking place with respect to judicial review of legislation in foreign countries. Austria and Czechoslovakia have established special constitutional courts with authority to determine whether acts are in accord with their constitutions. Germany is in the process of adopting judicial review of acts of the national government as implied in the provisions of the new constitution. According to certain jurists, French courts have taken the first steps to establish themselves as the special interpreters and guardians of the French constitution. Though the dominant opinion of French lawyers and statesmen is opposed to judicial review as a feature of the French system of government, there is a growing sentiment in favor of the acceptance of the principle, as a necessary means of rendering more effective the provisions of the constitution and of protecting individual rights as guaranteed in the Declaration of Rights. The Irish Free State has followed the lead of Canada and Australia in placing the guardianship of its new constitution in the courts. In adopting a new constitution, Chile appears to have taken preliminary steps to change a system of parliamentary supremacy to a modified régime of judicial supremacy. There is considerable public discussion in Switzerland of the possibility of accepting the principle of review of the acts of the Federal Assembly.