Judicial Review of Administrative Action: 1st Supplement to 5r. Not to be confused with Law review. This article is about judicial review of administrative action pdf power over non-judicial branches. For court power over lower courts, see Appellate review.
The power of courts to assess whether a law is in compliance with the constitution. Judicial review is one of the checks and balances in the separation of powers: the power of the judiciary to supervise the legislative and executive branches when the latter exceed their authority. The doctrine varies between jurisdictions, so the procedure and scope of judicial review may differ between and within countries. 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as sources of law, capable of creating new legal principles, and also capable of rejecting legal principles that are no longer valid. Secondly, the idea of separation of powers is another theory about how a democratic society’s government should be organized.
United States by the Supreme Court ruling in Marbury v. Madison under the court of John Marshall. 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 learned the possible dangers and limitations of entrusting power exclusively to the legislative branch of government. Many countries with civil-law systems have adopted a form of judicial review to stem the tyranny of the majority.
United Kingdom do not have the power to strike down primary legislation. However, since the United Kingdom became a member of the European Union there has been 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. In most countries, the courts apply special procedures in administrative cases. There are three broad approaches to judicial review of the constitutionality of primary legislation—that is, laws passed directly by an elected legislature.
Some countries do not permit a review of the validity of primary legislation. In the United Kingdom, statutes cannot be set aside under the doctrine of parliamentary sovereignty.
Another example is the Netherlands, where the constitution expressly forbids the courts to rule on the question of constitutionality of primary legislation. In American legal language, “judicial review” refers primarily to the adjudication of constitutionality of statutes, especially by the Supreme Court of the United States. This is commonly held to have been established in the case of Marbury v. Madison, which was argued before the Supreme Court in 1803.
A similar system was also adopted in Australia. In 1920, Czechoslovakia adopted a system of judicial review by a specialized court, the Constitutional Court as written by Hans Kelsen, a leading jurist of the time.