Judicial Review In Law Research Paper

1. Historical Origins

Judicial review is an outgrowth of efforts to limit the scope of power held by those authorized to interpret both sacred and secular texts. Societies, particularly (but not exclusively) those with complex governing structures, have created systems of law that constrain or influence official and social behavior through expressed codes or instructions. These, in turn, are overseen by special, trained officials. The fear that written laws and those empowered to enforce them will subvert the basic structures and values of a society form a prominent chapter in the history of self-government. Enabling government while protecting against its abuses is both an age-old and a universal concern.

In the Judeo-Christian tradition, for example, one finds such concerned in the books of Exodus, Leviticus, and Kings I and II. There, following the example of the primary law-giver, Moses, the prophets often contested the interpretations of both sacred and civil law provided by the kings and other secular rulers. Again, intellectuals in ancient China engaged in an extensive debate as to whether li (ritual) or fa (law) should govern human behavior. Mo Tsu, one such intellectual, argued that government was necessary to establish and govern meanings, including those pertaining to human conduct. Other intellectuals countered that the attempt to codify essential rituals or forms of conduct would lead to sophistry in political life. The Prince’s advisors, it was reasoned, would confuse the Prince with various interpretations of essential political terms (Pocock 1971).

2. Tension With Democracy

In modern democratic polities, the dilemma presented by judicial review is often referred to as the ‘counter-majoritarian difficulty.’ This is a recognition of the inherent tension between democracy and the rule of law. Courts and the law would seem to be ideal guardians of a political system’s fundamental principles and values. Yet, it is also recognized that, structurally, courts are not majoritarian democratic institutions, and their decisions and interpretations of laws and constitutions may be at variance with popular values. There is always the fear that, in the guise of interpretation, a judge will substitute his or her personal values for those of a democratic majority.

The emergence and practice of judicial review in the United States is a textbook example of this continuing tension. Although the American Constitution does not mention judicial review, it was not unknown to the framers. In Marbury . Madison (1803), the Supreme Court held that ‘it emphatically is the province and duty of the judicial department to say what the law is,’ and that, under a written constitution of enumerated powers, the Court could not enforce a law repugnant to it. An act of Congress that contravened the Constitution, the Court held, was null and void.

Only a few laws were held invalid in the nineteenth century, but the scope and incidence of judicial review expanded rapidly in the twentieth century. It is today a centerpiece of a ‘judicialized’ American political system. There is general agreement at the theoretical level about the utility of judicial review, but also constant disagreement about its application in particular cases and the alleged perils of an ‘imperial judiciary.’

3. Globalization Of Judicial Review

As Americans continue to debate the use and consequences of judicial review, it has taken root elsewhere. Most postwar constitutions in Europe, as well as India and Japan, incorporated some variant of it. And it now has been adopted, at least formally, by many of the nations of the former Soviet empire. Many of these nations had, in fact, once deliberately rejected it. Post-Napoleonic Europe, for example, firmly placed the judiciary under the control of the positivistic codes and enactments of the parliaments. Asian countries struggled throughout the nineteenth and early twentieth centuries to develop independent judiciaries that would be ‘acceptable’ to the United States and the other Western powers (Grovogui 1996, Millard 1931).

The rise of authoritarian and totalitarian regimes with little regard for basic human rights in the twentieth century led to an ‘Americanization’ of the governing regimes in Turkey, the Philippines, Japan, France, and Germany after the Second World War. Each of these nations has joined many others in adopting some measure of constitutional and liberal reform in their political arrangements, reforms that include an expressed power of judicial review. In Africa, judicial review and ‘constitutional courts’ have taken root in places like Benin, South Africa, Ghana, and many other countries where, previously, the judiciary was almost completely subservient to the executive or legislature (Shapiro and Stone 1994, Prempeh 1999).

But even in Great Britain, which has no written constitution, no bill of rights, a strong tradition of parliamentary supremacy, and no formal mechanism for judicial review, in the same period that the US was undergoing a transition toward a more ‘activist’ judiciary with respect to civil rights, British judges increasingly policed the administrative realm for violations of governing statutes. Some scholars have looked to internal factors, such as intergovernmental support and rights-advocacy organizations, as well as the influence of the increasingly rights-oriented and litigious culture of the United States, to explain the development and persistence of what might be called clandestine review (Shapiro and Stone 1994, Epp 1998).

The British experience is but one indicator that, while the United States has consciously sought to export its ‘unique’ institution, the results have not been uniform. Courts in Europe, Africa, and Asia continue to retain much of their traditional character even if consciously aware of the American example. This is particularly true of countries with civil code rather than common law systems. European constitutional courts, for example, are usually special courts that hear cases brought by the government, not private litigants. In France, the Constitutional Council may only review legislation in the immediate time period after passage and prior to promulgation. After that time, the statutes in question cannot be reviewed by that body. Moreover, the fact that members of both the Assembly and Senate can, with great ease, bring a constitutional challenge to legislation has further, blurred the edges separating legislating from adjudicating. The legislator proposes and debates a law ‘as if’ a judge will hear the same; and judges write decisions ‘as if’ the audience will be a legislator. Whether the parliament is the creature of the judge or the judge is the creature of the parliament is, in all respects, an important question (Shapiro and Stone 1994, pp. 400–2).

Characteristics such as those retained by the French point to important differences from American cultural and jurisprudential conventions. The US Supreme Court has never viewed itself as a court of ‘instruction.’ It is not empowered to issue merely advisory opinions; judicial review of constitutionality can only be undertaken in the context of an adversary ‘case or controversy’ proceeding. Organizing principles of government such as federalism and the separation of powers also vary widely in their acceptance, meaning, and application, insuring many variants of judicial review.

4. Judicialization Of Politics?

The fact that judicial review has become a global phenomenon has led some social scientists to speak of a ‘judicialization’ or ‘juridicalization’ of politics. At its root, the thesis suggests that political institutions such as legislatures and administrative agencies have come to expect and even welcome courts as arbiters or overseers of their actions. They tailor their actions accordingly to accord with an expected response by the judiciary (Stone Sweet 1999, p. 164, Shapiro 1994). The electorate itself has come to have similar expectations. In the American political context, for example, judicialization has had the paradoxical effect of legitimizing, de facto, the role of judicial review in a democratic process. While most Americans lack a deep knowledge of American history, politics, or law, they are well able to speak the language of rights and can, with some measure of accuracy, defend or dispute the validity of the legal holdings involved in such famous cases as Brown . Board of Education (1954), Miranda . Arizona (1966), and Roe . Wade (1973) (Friedman 1990. Grossman and Epp 1991). At the same time, the idea that the US Supreme Court is both the final arbiter of legal disputes, and should be so, is not seen by a significant portion of the electorate as contrary to basic democratic values. Judges, from this view, are the lesser of many evils in a world where state and national institutions have come to be mistrusted. What citizens oppose most is decisions with which they disagree!

Outside of the United States, the tension between judicial review and democracy has been less of an issue. This is due, without doubt, to the association of judicial review with postauthoritarian reforms and constitutions that establish the primacy of fundamental human rights principles, and entrust their protection to constitutional courts. The rise of supranational courts such as the European Court of Justice has not only created a second level of review that transcends the courts and law of individual countries, but has also added considerable force to the argument that the enforceability of basic rights is critical to the maintenance of democracy and a civilized world order.

When judicial review transcends national boundaries, the problems of legitimacy and acceptance may be even greater. As the legal philosopher H. L. A. Hart pointed out, judicial review (or some variant of it) is likely to be a problem in any political community or arrangement in which those who are authorized to make or interpret the laws are institutionally (and even more so, culturally) distinct from the members of that community (Hart 1961). Governing structures and particular social and political conflicts are continually readjusted to meet the shifting strengths and needs of the community. This is particularly true where, as with the European Court or the new constitutional courts of eastern Europe, the role of courts is still evolving and not yet fully understood or accepted. But it is also true, if to a lesser extent, in nations or communities where judicial review and an activist judicial role is endemic and expected.

5. Contemporary Debate

The wide-ranging debates that pervaded the American academy from roughly 1940 to 1990 tapered off as the US Supreme Court drifted rightward, and as the de facto presence of judicial review in American political life came to be more or less taken for granted. While the American literature on judicial review might seem to be of immediate and obvious interest to legal reformers in Europe, Asia, and Africa, it remains to be seen whether the American experience (or the ‘countermajoritarian difficulty’ for that matter) will be of deep interest in those places. Rather, as judicial review has become less a species of American exceptionalism and a broader, global issue, current scholarship has turned increasingly to a hybrid of the American debate. At issue is the empirical question of why judicial review develops in some times and places and whether, normatively speaking, judicial review may not be better employed in some systems than in others.

Some scholars have argued that for judicial review to take root there must be some level of commitment to the rule of law, and to government that is both democratic and limited. In polities where pure majoritarianism prevails there is, of course, no necessary limit to what the legislature can do in the electorate’s name. Where the government is limited by some overarching set of principles, the ability of courts of law to intervene and veto legislation in apparent conflict with such principles is more pronounced (Shapiro 1998). In a twist on the American experience, then, the inversion of the relationship of rights-to-the-state in regimes throughout Europe after the Second World War has enshrined their constitutional courts as defenders of pre-existing and constitutive rights held by the citizenry. Many of these rights find their sources not merely in written constitutions (such as the German Basic Law’s protections of ‘Human Dignity,’ which many nations lack) but in sources both internal or external to the political system (e.g. treaties and conventions) (Shapiro and Stone 1994). Conversely, in some African countries like Ghana, the long-standing tradition of judicial deference to executive authority has led the judges to use their new powers to adopt a jurisprudence seemingly at odds with the more recent, liberal written constitutions. In these cases, commentators have suggested, new ‘constitutional courts’ with judges learned in foreign jurisprudence and committed to constitutional reform will have to be substituted for a judiciary that is, in large part, a holdover from the ancien regime (Prempeh 1999).

Other oft-cited factors include the existence of commerce and internal geographic and cultural divisions, such as federalism. Commercial actors conventionally use legal devices to secure both formal agreements and sanctions should the terms of those agreements be violated. Written law, and the search for a neutral third party who is an expert in such law, has long been an important part of trade. Social scientists have argued that commerce was of great importance in accounting for the historical emergence of judge-made law. The origins of the professional lawyer, Max Weber argued, are to be found in the cavere: the Roman practice of drafting contracts, wills, and other legal devices. The lawyers, seeking to make commercial relations more predictable for their clients, would change the meanings of extant legal terms or invent new legal devices and then seek out judges who would institutionalize the changes as authoritative (Weber 1954, p. 72).

A recent study of the World Trade Organization (WTO) lends support to this observation. The WTO’s predecessor, the General Agreement on Tariffs and Trade, consisted originally of a Panel System of diplomats who mediated issues between states. With time, the treaty came to be viewed as authoritative law and the Panel’s decisions regarding that law were seen as both binding and precedential. Accordingly, the argument was made that legal specialists were needed who might then study the treaty and relevant Panel decisions to further enforce its terms. Beginning in the early 1970s, the Nixon administration pushed to place trade disputes into the hands of lawyers familiar with trade laws. And in fact it was the American bar that, in the 1970s and 1980s, spearheaded a shift toward the more legalistic model that is at the heart of the WTO today (Stone Sweet 1999, pp. 164–71).

The existence of federative or federal government is also cited as a factor. Divisions of power among disparate electoral, legislative, and executive bodies, and vertical divisions of power, invariably occasion conflict that is itself caused by, and therefore cannot be corrected easily by, ‘normal’ political procedures. As the judge is often regarded as a sort of theorist of the state and its basic arrangements, her appeal is in clarifying or mediating the existing division of power among such entities (Dworkin 1988).

Supranational courts, such as the European Court of Justice, have added yet another layer of review. That Court, for example, has claimed a sweeping power of judicial review for itself by converting the various treaties it oversees into a sort of overarching constitution binding on both member nations and the courts and citizens of those nations. Such a practice undermines the close connection between judicial review and national sovereignty; and it may also contravene basic principles of international law, at least in theory. Yet the European Court has been successful in part because it provides stability and some manner of coherence, and balances national sovereignty interests with the goal of integration.

Scholars also cite more temporally specific factors. In the United States, commercial elites dominated constitutional litigation for most of US history. Yet in the post-Second World War era, nontraditional litigants were able to pool time, monetary resources, and available legal talent to press for important constitutional guarantees (Epp 1998). And the Supreme Court, over time, ‘adjusted’ the Constitution to facilitate the development and legitimacy of the American welfare state. In Europe, somewhat differently, the devolution of legislative power in parliamentary systems and the concomitant rise in cabinet party-enforced government, has occasioned a role for courts, particularly in those countries (e.g. Germany) where even a governing majority cannot prevent legislation from being referred to a constitutional court (Shapiro and Stone 1994, p. 405).

The French social historian and philosopher, Michel Foucault, argued that, since the early modern period, juridical institutions and discourses have been displaced gradually by administrative institutions and their discourses. The world of sovereigns and their landed jurisdictions had given way to a world of populations and institutions to ‘normalize’ these populations (Foucault 1976). If we take both the American experience and the recent proliferation of legal and constitutional norms in Europe and elsewhere as our guide, the thesis would have to revised to account for the appearance of administrators who come garbed as judges. The influence of legal and constitutional norms, vocabularies, and institutions on the socioeconomic and political structure of much of the planet has been considerable; the effects of this process, are, however, poorly understood and in need of further study. In this respect, ‘postmodern’ arguments have to be seriously qualified. Whether justified in fact and theory, the expectation that judges and legal norms can ground individual rights and provide a constitution for transnational and intercultural contact is shared increasingly today. The very American Marbury . Madison, as it were, has found a place for itself in the global environment.

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