Judicial review is the examination of actions by the executive, legislative, and administrative branches of government to determine compliance with a higher authority, such as a constitution. The scope and procedures of judicial review vary by country and legal system, with civil law systems prohibiting courts from challenging laws enacted by the legislative branch, while common law systems see judicial review as a necessary check on the legislature. The UK has a hybrid view, allowing some types of law to be reviewed by courts but not primary legislation passed by Parliament. The European Union’s Court of Justice has powers of judicial review, but some Member States oppose it.
Judicial review is a principle of democratic political theory concerning the authority of courts over non-judicial branches of government. Specifically, judicial review is the examination of the actions of the executive, legislative, and administrative branches of government by a country’s judicial system to determine whether those actions comply with the dictates of some previously established higher authority. In the case of a democracy, the higher authority would most likely be a written constitution, but in a theocracy that authority would reside in a religion. If laws or actions are found to be incompatible, they may be subject to invalidation by the judicial system.
The origin of the doctrine lies in the philosophy behind the separation of powers seen in modern government structures where courts are listed as one of the branches of government. Different national political histories have caused divergent opinions to evolve regarding what the hierarchy between branches of government should be. As a result, the scope and procedures of judicial review law vary from country to country.
Civil law and common law are two related but different legal systems that provide the basis for differing views of judicial review. The evolution of civil law was influenced by the French Revolution in the 18th century and by the eventual codification of law in the Napoleonic Code of the 18th with an emphasis on the supremacy of the legislative body elected by the people. In legal systems that developed out of civil law, the court system is usually specifically prohibited from legislating and challenging laws enacted by the legislative branch. The legal systems in Switzerland and the Netherlands are examples of this system.
Legal systems in countries that evolved from the common law take a different view. In such systems, judicial review is seen as a necessary check on the legislature, and the determination of law by courts is commonly accepted. Countries that rely on the common law and emphasize the separation of powers are more likely to allow judicial review. The legal system in the United States is an example of this type of system.
There is also a hybrid view of judicial review. Although its legal system is based on common law, in the UK some types of law can be reviewed by the courts, but primary legislation passed by Parliament cannot be reviewed. Interestingly, this seemingly dry topic is a flashpoint of international tension in the European Union. Within the Union, the powers of judicial review reside in its Court of Justice, but many Member States remain firmly opposed to it as a legal doctrine.
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