Abstract
Although fast becoming the norm in constitutional democracies, the review of legislation is not without difficulty, as it hides two interrelated questions if not problems. Questions that keep stimulating debate and beg thought to ensure that the aim of controlling state power is continually met. The first relates to whether such review is justified, can it be said that judicial review is desirable to the extent of being part and parcel of “good” constitutionalism? And, secondly, if the principle of review is acceptable, how may its scope be structured? The design of review and the factors that impact it may not be neglected, because although the principle of review may be accepted, it only becomes an added value to the constitutionalist project once its extent and character suits the needs and conditions of a particular system. Yet, the questions of judicial review’s justification and its scope are seldom addressed in the same study, thereby making for an inconvenient divorce of these two related avenues of study. To narrow the divide, the object of this work is quite straightforward. Namely, is the idea of judicial review defensible, and what influences its design and scope?
This is a preview of subscription content, log in via an institution to check access.
Access this chapter
Tax calculation will be finalised at checkout
Purchases are for personal use only
Notes
- 1.
Cf. András Sajó, Limiting Government: An Introduction to Constitutionalism (Budapest: Central European University Press, 1999), at 12.
- 2.
Or as Lord Bingham of Cornhill put it: “For there is no task more central to the purpose of modern democracy, or more central to the judicial function, than that of seeking to protect, within the law, the basic human rights of the citizens, against invasion by other citizens or by the state itself”, T.H. Bingham, “The European Convention on Human Rights: Time to Incorporate”, 109 L. Quart. Rev. 390 (1993).
- 3.
John Stuart Mill, On Liberty and the Subjection of Women (New York: Henry Holt, 1879), at 15–16.
- 4.
Charting this evolution, C. Neal Tate and Torbjörn Vallinder (eds.), The Global Expansion of Judicial Power (New York: New York University Press, 1995).
- 5.
For overviews, see Edward McWhinney, Supreme Courts and Judicial Law-Making: Constitutional Tribunals and Constitutional Review (Dordrecht: Martinus Nijhoff Publishers, 1986), at 1–9; Tom Ginsburg, Judicial Review in New Democracies: Constitutional Courts in Asian Cases (Cambridge: Cambridge University Press, 2003); Wojciech Sadurski, Rights Before Courts: A Study of Constitutional Courts in Postcommunist States of Central and Eastern Europe (Dordrecht: Springer, 2005).
- 6.
Tim Koopmans, Courts and Political Institutions: A Comparative View (Cambridge: Cambridge University Press, 2003), at 247–251. Similarly, Ran Hirschl, Towards Juristocracy: The Origins and Consequences of the New Constitutionalism (Cambridge, MA: Harvard University Press, 2004), at 1, speaks of a transformation to “juristocracy”.
- 7.
Proving, among others, the living nature of the debate, Jeremy Waldron, “The Core of the Case Against Judicial Review”, 115 Yale L. J. 1346 (2006); Annabelle Lever, “Is Judicial Review Undemocratic?” Pub. L. 290 (2007); Richard H. Fallon, “The Core of an Uneasy Case for Judicial Review”, 121 Harv. L. Rev. 1693 (2008).
- 8.
Lorraine E. Weinrib, “Constitutional Conceptions and Constitutional Comparativism”, in Vicki C. Jackson and Mark Tushnet (eds.), Defining the Field of Comparative Constitutional Law 3 (Westport: Praeger, 2002), at 4.
- 9.
Ginsburg, supra note 5, at 15–17; Hirschl, supra note 6, at 222–223.
- 10.
Hirschl, supra note 6, at 223.
- 11.
Human Rights Act 1998 (c. 42).
- 12.
Parliamentary Proceedings II, 2001–2002, 28, 331, no. 2; 2002–2003, 28, 331, no. 9.
- 13.
Cf. M.C. Burkens, H.R.B.M. Kummeling, B.P. Vermeulen and R.J.G.M. Widdershoven, Beginselen van de democratische rechtsstaat (Alphen aan den Rijn: Kluwer, 6th ed., 2006), at 342–346, on the European Union as a new legal order and its implications for national legal orders.
- 14.
On the meaning of function, see K. Zweigert and H. Kötz, An Introduction to Comparative Law (Oxford: Clarendon Press, 3rd ed., 1998), at 34–36.
- 15.
For definitions and discussions of the term “judicial review”, see McWhinney, supra note 5, at XI–XVI; Martin Shapiro, “The European Court of Justice”, in Paul Craig and Gráinne de Búrca (eds.), The Evolution of EU Law 321 (Oxford: Oxford University Press, 1999); Aalt Willem Heringa and Phillip Kiiver, Constitutions Compared: An Introduction to Comparative Constitutional Law (Antwerp: Intersentia, 2007), at 95.
- 16.
On these, see Chapters 4 (fora), http://5 (modalities), 6 (content), and 7 (consequences), respectively.
- 17.
The power to conduct review can be expressly created for courts. E.g. s. 5 of the Namibian Constitution (1990) states that the Bill of Rights “shall be enforceable by the Courts”. Alternatively, where such unequivocal powers are absent, the judiciary may imply them from the constitutional dispensation, bar evidence to the contrary. E.g. the well-known decision of Marbury v. Madison, 1 Cranch 137 (1803), where Marshall C.J. held that courts could strike down laws that were contrary to the demands of the United States Constitution. Similarly, the practice in Belgium of refusing application to laws that do not conform to directly enforceable international law came about by the Court of Cassation’s judgment of 27 May 1971, Pas., 1971, I, 886 (Le Ski).
- 18.
A right, as explained by Alan Gewirth, “Are There Any Absolute Rights?”, in Jeremy Waldron (ed.), Theories of Rights 93 (Oxford: Oxford University Press, 1984) means that A has a claim to X against B by virtue of Y. A right is thus a construct based on a specific justification, which guarantees its bearer a claim with a particular content and extent, against parties expected to respect such a claim. In the case of fundamental rights, we speak of those rights that are deemed essential or basic in order to satisfy the purpose of law as an agent with which to ensure personal autonomy and freedom. Cf. Gerhard van der Schyff, Limitation of Rights: A Study of the European Convention and the South African Bill of Rights (Nijmegen: Wolf Legal Publishers, 2005), at 5.
- 19.
E.g. unlike in federal systems, there are no real constitutional safeguards for provincial powers in the Netherlands. Once parliament legislates in respect of the provinces, it is up to the courts to uphold the will of parliament. An administrative law doctrine, similar to the United Kingdom’s ultra vires, then applies to ensure that national and provincial or local bodies do not act outside the powers assigned them by the relevant act of parliament. Cf. Burkens et al., supra note 13, at 286–291.
- 20.
Michel Troper, “The Logic of Justification of Judicial Review”, 1 Int. J. Const. L. 99 (2003), at 109–121.
- 21.
E.g. in R. (Q and Others) v. Secretary of State for the Home Department, EWCA Civ 364, [2003], 3 WLR 365, it was held that although a statute was not incompatible with the HRA, the way in which it had been implemented in relation to the claimants was nonetheless incompatible with the HRA. For studies of judicial review and the executive, see Marc Hertogh and Simon Halliday (eds.), Judicial Review and Bureaucratic Impact: International and Interdisciplinary Perspectives (Cambridge: Cambridge University Press, 2004); J.R. de Ville, Judicial Review of Administrative Action in South Africa (Durban: LexisNexis Butterworths, 2005).
- 22.
I.M. Rautenbach and E.F.J. Malherbe, Constitutional Law (Durban: Butterworths, 5th ed., 2009), at 120–121.
- 23.
For an interesting view on the relation between the common law and judicial review, see W.J. Waluchow, A Common Law Theory of Judicial Review: The Living Tree (Cambridge: Cambridge University Press, 2007).
- 24.
In Pharmaceutical Manufacturers of SA; in re Ex parte Application of the President of the RSA, 2000 (3) BCLR 241 (CC), 2000 (1) SA 674 (CC), at par. 20, the Constitutional Court of South Africa went so far as to hold that: “There is only one system of law. It is shaped by the Constitution which is the supreme law, and all law, including the common law, derives its force from the Constitution and is subject to constitutional control.”
- 25.
E.g. in South Africa, the Supreme Court of Appeal developed the common law to allow for same-sex marriages, Fourie v. Minister of Home Affairs, 2005 (3) BCLR 241 (SCA), at paras. 38–49. On appeal the Constitutional Court was more cautious by giving parliament the opportunity to address the matter itself, by suspending its own order developing the common law in line with the Constitution for a year. See Minister of Home Affairs v. Fourie; Lesbian and Gay Equality Project v. Minister of Home Affairs, 2006 (3) BCLR 355 (CC), 2006 (1) SA 524 (CC), at paras. 115–161.
- 26.
Rautenbach and Malherbe, supra note 22, at 4.
- 27.
E.g. Michael Zander, The Law-Making Process (Cambridge: Cambridge University Press, 6th ed., 2004), at 108–111, regarding the United Kingdom.
- 28.
The classic expression of this notion can be found in the English Bill of Rights of 1688: “That the pretended power of suspending laws or the execution of laws by regal authority without consent of Parliament is illegal; that the pretended power of dispensing with laws or the execution of laws by regal authority as it hath been assumed and exercised of late is illegal.”
- 29.
This is also followed in the HRA. While, s. 3 expressly refers to “primary legislation”, s. 20 elaborates on which forms of legislation are covered by the term.
- 30.
Incidentally, the state can be a participant in private law relationships too, but then wholly as a private party such as where it buys land without expropriating it.
- 31.
For the horizontal application of rights in the jurisdictions studied, see Neil Parpworth, Constitutional & Administrative Law (Oxford: Oxford University Press, 5th ed., 2008), at 424–426; L.F.M. Verhey, Horizontale werking van grondrechten, in het bijzonder van het recht op privacy (Zwolle: W.E.J. Tjeenk Willink, 1992); Iain Currie and Johan de Waal, The Bill of Rights Handbook (Lansdowne: Juta, 5th ed., 2005), at 50–55; and generally András Sajó and Renáta Uitz (eds.), The Constitution in Private Relations: Expanding Constitutionalism (Utrecht: Eleven International Publishing, 2005).
- 32.
S. v. Makwanyane, 1995 (6) BCLR 665 (CC), 1995 (3) SA 391 (CC).
Author information
Authors and Affiliations
Corresponding author
Rights and permissions
Copyright information
© 2010 Springer Science+Business Media B.V.
About this chapter
Cite this chapter
Van Der Schyff, G. (2010). Setting the Scene. In: Judicial Review of Legislation. Ius Gentium: Comparative Perspectives on Law and Justice, vol 5. Springer, Dordrecht. https://doi.org/10.1007/978-90-481-9002-7_1
Download citation
DOI: https://doi.org/10.1007/978-90-481-9002-7_1
Published:
Publisher Name: Springer, Dordrecht
Print ISBN: 978-90-481-9001-0
Online ISBN: 978-90-481-9002-7
eBook Packages: Humanities, Social Sciences and LawLaw and Criminology (R0)