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This article is about court power over non-judicial branches. For court power over lower courts, see Appellate review.

Judicial Review is the doctrine under which legislative and/or executive actions are subject to review (and possible invalidation) by the judiciary. A specific court with judicial review power may annul the acts of the state when it finds them incompatible with a higher authority (such as the terms of a written constitution). Judicial review is an example of check and balances in a modern governmental system (where the judiciary checks the other branches of government). This principle is interpreted differently in different jurisdictions, which also have differing views on the different hierarchy of governmental norms. As a result, the procedure and scope of judicial review may differ from country to country and state to state.


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as sources of law, capable of creating new legal principles, and also capable of rejecting legal principles that are no longer valid.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, although the power itself is not granted by the Constitution.

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 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, 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.

Judicial review of administrative acts[edit]

Most modern legal systems allow the courts to review administrative acts (individual decisions of a public body, such as a decision to grant a subsidy or to withdraw a residence permit). In most systems, this also includes review of secondary legislation (legally-enforceable rules of general applicability adopted by administrative bodies). Some countries (notably France and Germany) have implemented a system of administrative courts which are charged with resolving disputes between members of the public and the administration. In other countries (including the United States, Scotland and the Netherlands), judicial review is carried out by regular civil courts although it may be delegated to specialized panels within these courts (such as the Administrative Court within the High Court of England and Wales). The United States employs a mixed system in which some administrative decisions are reviewed by the United States district courts (which are the general trial courts), some are reviewed directly by the United States courts of appeals and others are reviewed by specialized tribunals such as the United States Court of Appeals for Veterans Claims (which, despite its name, is not technically part of the federal judicial branch). It is quite common that before a request for judicial review of an administrative act is filed with a court, certain preliminary conditions (such as a complaint to the authority itself) must be fulfilled. In most countries, the courts apply special procedures in administrative cases.

Judicial review of primary legislation[edit]

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.[2]

Review by general courts[edit]

In the United States, federal and state courts (at all levels, both appellate and trial) are able to review and declare the "constitutionality", or agreement with the Constitution (or lack thereof) of legislation that is relevant to any case properly within their jurisdiction. 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.

Review by a specialized court[edit]

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. This system was later adopted by Austria and became known as the Austrian System, also under the primary authorship of Hans Kelsen, being emulated by a number of other countries. In these systems, other courts are not competent to question the constitutionality of primary legislation; they often may, however, initiate the process of review by the Constitutional Court.

Russia adopts a mixed model since (as in the US) courts at all levels, both federal and state, are empowered to review primary legislation and declare its constitutionality; as in the Czech Republic, there is a constitutional court in charge of reviewing the constitutionality of primary legislation. The difference is that in the first case, the decision about the laws adequacy to the Russian Constitution only binds the parties to the lawsuit; in the second, the Court's decision must be followed by judges and government officials at all levels.

Judicial review in specific jurisdictions[edit]


  1. ^ Montesquieu, Baron Charles de, The Spirit of Laws
  2. ^ Article 120 of the Netherlands Constitution

External links[edit]

Galera, S. (ed.), Judicial Review. A comparativa Analysis inside the European Legal System, Council of Europe, 2010, ISBN 978-92-871-6723-1, http://book.coe.int/EN/ficheouvrage.php?PAGEID=36&lang=EN&produit_aliasid=2485

See also[edit]

Original courtesy of Wikipedia: http://en.wikipedia.org/wiki/Judicial_review — Please support Wikipedia.
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Irish Times

Irish Times
Mon, 01 Sep 2014 11:11:15 -0700

Asked by Mr Lynam to then consider his application for permission to apply for a judicial review of the Minister's decision, which would take “five or 10 minutes”, Mr Justice Barton said he was “very conscious” of his public duty, which was why he came ...


Mon, 01 Sep 2014 17:45:00 -0700

The whanau of a troubled Northland Maori immersion school is seeking a judicial review of what they say is mishandling by the Education Ministry of its issues. The ministry appointed a commissioner to Te Kura Kaupapa o Whangaroa in June and asked him ...
Thu, 28 Aug 2014 08:33:45 -0700

The local plan for the borough was adopted by the Council on 19 June, after an independent planning inspector found that it provided "an appropriate basis for the planning of the borough until 2031", subject to agreed minor alterations. The plan ...

Philippine Star

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Sun, 31 Aug 2014 09:18:45 -0700

The 1987 Philippine Constitution explicitly vests in the Supreme Court the power of judicial review which is the authority to examine an executive or legislative act and to invalidate that act if it is contrary to constitutional principles. While the ...
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Thu, 28 Aug 2014 16:52:21 -0700

PETER Maley resigned abruptly on Monday night, 11 months into the job and three days before emails were tabled in parliament that allege he offered to help minerals explorer Norm McCleary access sensitive government documents, receiving a donation to ...
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Wed, 27 Aug 2014 15:18:45 -0700

A two-year judicial review for a former Checotah teacher found guilty of having sexual relationships with teenagers has been rescheduled. Michelle McCutchan was sentenced Sept. 5, 2012, to 15 years in prison after being found guilty of multiple crimes, ...
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Fri, 29 Aug 2014 10:51:03 -0700

Rubicon Minerals Corp. (TSX:RMX,NYSEMKT,RBY) announced that the Ontario Divisional Court has dismissed an application for judicial review regarding the company's production closure plan for its Phoenix gold project. The application was previously ...

Irish Times

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Mon, 25 Aug 2014 05:25:09 -0700

Convicted Real IRA member Michael McKevitt will seek a judicial review next week of his application for early release, the High Court heard this morning. His bid for early release from prison based on good behaviour stalled following a Supreme Court ...

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