Judicial review

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as sources of law, capable of creating new legal principles, and also capable of rejecting legal principles that are no longer valid.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 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;[1] it was later institutionalized in the United States by the Supreme Court ruling in Marbury v. Madison under the court of 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; 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. 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 and those stressing a separation of powers 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 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.

• Judicial Appeal
• Judicial activism
• Living Constitution
• Originalism
• Unconstitutional constitutional amendment

• 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, ISBN 978-0-87289-556-0.

• Judicial review at the Encyclopædia Britannica
• Section "Judicial Review" in Constitutional law at the Encyclopædia Britannica
• Judicial Review: A Legal Guide
• Corrado, Michael Louis (2005). Comparative Constitutional Law: Cases and Materials. 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,