Judicial review
Administrative law |
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General principles |
Grounds for judicial review |
Administrative law in common law jurisdictions |
Administrative law in civil law jurisdictions |
Related topics |
Judicial review is a process under which a government's
General principles
This section needs additional citations for verification. (August 2020) |
Judicial review can be understood in the context of two distinct—but parallel—legal systems, civil law and common law, 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, 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as sources of law, capable of creating new legal principles, and also capable of rejecting legal principles that are no longer valid.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 is based on the idea that no branch of government should be able to exert power over any other branch without
Differences in organizing democratic societies led to different views regarding judicial review, with societies based on common law and those stressing a separation of powers being the most likely to utilize judicial review.[citation needed] 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) 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 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 power of judicial review.
Principles of review
When carrying out judicial review a court may ensure that the principle of ultra vires are followed, that a public body's actions do not exceed the powers given to them by legislation.[1]: 23
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
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
Review of primary legislation
There are three broad approaches to judicial review of the constitutionality of
No review by any courts
Some countries do not permit a review of the validity of primary legislation. In the United Kingdom,
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", 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. Courts in the United States may also invoke judicial review in order to ensure that a statute is not depriving individuals of their constitutional rights.[4] 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.[5] In Australia, the term 'judicial review' generally refers to reviews of the lawfulness of the actions of the executive and the public service,[6] while reviews of the compatibility of laws with the Australian Constitution is known as characterisation or constitutional challenges.[7]
Review by a specialized court
In 1920,
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.
In specific jurisdictions
- Australian administrative law § Judicial review
- Judicial review in Austria
- Judicial review in Bangladesh
- Judicial review in Canada
- Constitutional Court of the Czech Republic
- Judicial review in Denmark
- Judicial review in English law
- Judicial review in Germany
- Judicial review in Hong Kong
- 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 South Africa
- 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
- Living Constitution
- Originalism
- Unconstitutional constitutional amendment
References
- ^ OCLC 191746889.
- The Spirit of the Laws
- ^ Article 120 of the Netherlands Constitution
- ^ Eskridge et al., supra note 532, at 1207 ("Presumption in favor of judicial review."); id.("Rule against interpreting statutes to deny a right to jury trial."); id.("Super-strong rule against implied congressional abrogation or repeal of habeas corpus."); id. at 1208 ("Presumption against exhaustion of remedies requirement for lawsuit to enforce constitutional rights."); id.("Presumption that judgements will not be binding upon persons not party to adjudication."); id.("Presumption against foreclosure of private enforcement of important federal rights."). See, e.g., Demote v. Hyung Joon Kim, 538 U.S. 510, 517 (2003). But see Scalia & Garner, supra note 532, at 367 (describing as a "false notion" the idea "that a statute cannot oust courts of jurisdiction unless it does so expressly").
- ^ Australian Communist Party v Commonwealth (1951) 83 CLR 1 AustLII
- ^ Parliamentary Education Office. "What is judicial review?". Parliamentary Education Office. Retrieved 9 March 2023.
- ISBN 9780409341959.
- ^ The strength of the combination Government – Parliament ... far from outperform the reasons of the Constitutional scrutiny, makes the judicial review more necessary than ever: Buonomo, Giampiero (2006). "Peculato d'uso: perché il condannato non può fare il Sindaco. Dalla Consulta "no" ai Dl senza necessità e urgenza". Diritto&Giustizia Edizione Online. Archived from the original on 2012-08-01. Retrieved 2016-04-09.
Further reading
- Edward S. Corwin, The Doctrine of Judicial Review: Its Legal and Historical Basis and Other Essays. Piscataway, New Jersey: Transaction Publishers, 2014. [ISBN missing]
- R. L. Maddex, Constitutions of the World, Washington, D.C.: CQ Press, 2008, ISBN 978-0-87289-556-0.
External links
This article's use of external links may not follow Wikipedia's policies or guidelines. (June 2021) |
- Judicial Review: A Legal Guide
- Corrado, Michael Louis (2005). Comparative Constitutional Law: Cases and Materials. Carolina Academic Press. ISBN 0-89089-710-7. (Country by country case studies)
- N. Jayapalan (1999). Modern Governments. Atlantic Publishers and Distributors. ISBN 978-81-7156-837-6. (A comparison of modern constitutions)
- Beatty, David M (1994). Human rights and judicial review. Martinus Nijhoff Publishers. ISBN 978-0-7923-2968-8. (A comparison of national judicial review doctrines)
- Wolfe, Christopher (1994). The American doctrine of judicial supremacy. Rowman & Littlefield. ISBN 978-0-8226-3026-5. (This book traces the doctrine's history in an international/comparative fashion)
- Vanberg, Georg (2005). "Constitutional Review in Comparative Perspective". The politics of constitutional review in Germany. Cambridge University Press. ISBN 978-0-521-83647-0. (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, ISBN 978-92-871-6723-1, [1]