Judicial Review Of Legislative Acts

Two lectures delivered before the Law School of the University of Pennsylvania.

Constitutionalism is the permanent quest to control state power, of which the judicial review of legislation is a prime example. Although the judicial review of legislation is increasingly common in modern societies, it is not a finished project. This device still raises questions as to whether judicial review is justified, and how it may be structured. Yet, 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 book addresses these matters by comparing the judicial review of legislation in the United Kingdom (the Human Rights Act of 1998), the Netherlands (the Halsema Proposal of 2002) and the Constitution of South Africa of 1996. These systems present valuable material to study the issues raised by judicial review. The Netherlands is of particular interest as its Constitution still prohibits the constitutional review of acts of parliament, while allowing treaty review of such acts. The Halsema Proposal wants to even out this difference by allowing the courts also to apply constitutional norms to legislation and not only to international norms. The Human Rights Act and the South African Constitution also present interesting questions that will make their study worthwhile. One can think of the issue of dialogue between the legislature and the judiciary. This topic enjoys increased attention in the United Kingdom but is somewhat underexplored in South African thought on judicial review. These and similar issues are studied in each of the three systems, to not only gain a better understanding of the systems as such, but also of judicial review in general.

This book examines the most recent trends in the constitutional and legal regulations in all Latin American countries regarding the amparo proceeding. It analyzes the regulations of the seventeen amparo statutes in force in Latin America, as well as the regulation on the amparo guarantee established in Article 25 of the American Convention of Human Rights.

Philip Hamburger’s Law and Judicial Duty traces the early history of what is today called “judicial review.” Working from previously unexplored evidence, Hamburger questions the very concept of judicial review. Although decisions holding statutes unconstitutional are these days considered instances of a distinct judicial power of review, Hamburger shows that they were once understood merely as instances of a broader judicial duty. The book’s focus on judicial duty overturns the familiar debate about judicial power. The book is therefore essential reading for anyone concerned about the proper role of the judiciary. Hamburger lays the foundation for his argument by explaining the common law ideals of law and judicial duty. He shows that the law of the land was understood to rest on the authority of the lawmaker and that what could not be discerned within the law of the land was not considered legally binding. He then shows that judges had a duty to decide in accord with the law of the land. These two ideals—law and judicial duty—together established and limited what judges could do. By reviving an understanding of these common law ideals, Law and Judicial Duty calls into question the modern assumption that judicial review is a power within the judges’ control. Indeed, the book shows that what is currently considered a distinct power of review was once understood as a matter of duty—the duty of judges to decide in accord with the law of the land. The book thereby challenges the very notion of judicial review. It shows that judges had authority to hold government acts unconstitutional, but that they enjoyed this power only to the extent it was required by their duty.In laying out the common law ideals, and in explaining judicial review as an aspect of judicial duty, Law and Judicial Duty reveals a very different paradigm of law and of judging than prevails today. The book, moreover, sheds new light on a host of misunderstood problems, including intent, manifest contradiction, the status of foreign and international law, the cases and controversies requirement, and the authority of judicial precedent.

Contains papers and comments from the conference on the Foundations of Judicial Review, held in Cambridge, England, May 22, 1999, and some previously published papers.