Judicial Review - General

General

Judicial review is one of the main characteristics of government in the Republic of the United States and other democracies. It can be understood in the context of two distinct—but parallel—legal systems (civil law and common law), and also by two distinct theories on democracy and how a government should be set up (the ideas of legislative supremacy and 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are seen as sources of law, capable of creating new legal rules, and also capable of rejecting legal rules that are no longer valid.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 rules.

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; it was later institutionalized in the United States by the Supreme Court ruling in Marbury v. Madison. Separation of powers is based on the idea that no branch of government should be more powerful than any other; each branch of government should have a check on the powers of the other branches of government, thus creating a balance of power 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 (although the power itself is only implicitly granted). 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.

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 the 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, the judicial body in the United Kingdom does 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 the UK's tendency toward legislative supremacy and the EU's legal system (which empowers the Court of Justice of the European Union with judicial review).