Review of Administrative Acts: A Comparative Study of the Doctrine of the Separation of Powers and Judicial Review in France and the United States

This concluding chapter identifies the four major causes of the growth and origin of judicial review in the G-20 common law countries and in Israel. First, the need for a federalism umpire, and occasionally a separation of powers umpire, played a major role in the development of judicial review of the constitutionality of legislation in the United States, in Canada, in Australia, in India, and most recently in the United Kingdom. Second, there is a rights from wrongs phenomenon at work in the growth of judicial review in the United States, after the Civil War; in Canada, with the 1982 adoption of the Canadian Charter of Rights and Freedoms; in India, after the Indira Gandhi State of Emergency led to a massive trampling on human rights; in Israel, after the Holocaust; in South Africa, after racist apartheid misrule; and in the United Kingdom, after that country accumulated an embarrassing record before the European Court of Human Rights prior to 1998. This proves that judicial review of the constitutionality of legislation often occurs in response to a deprivation of human rights. Third, the seven common law countries all borrowed a lot from one another, and from civil law countries, in writing their constitutions. Fourth, and finally, the common law countries all create multiple democratic institutions or political parties, which renders any political attempt to strike back at the Supreme Court impossible to maintain.

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Introduction The Birth and Growth of Judicial Review in the Civil Law World

10.1093/oso/9780190075736.003.0001 ◽

2021 ◽

pp. 1-8

Author(s):

Steven Gow Calabresi

Keyword(s):

United States ◽

South Africa ◽

United Kingdom ◽

Judicial Review ◽

Separation Of Powers ◽

Common Law ◽

Civil Law ◽

The United States ◽

The Political ◽

The United Kingdom

This book is about the stunning birth and growth of judicial review in the civil law world, since 1945. In Volume I of this two-volume series, I showed that judicial review was born and grew in common law G-20 constitutional democracies and in Israel primarily: (1) when there is a need for a federalism or a separation of powers umpire, (2) when there is a rights from wrongs dynamic, (3) when there is borrowing, and (4) when the political structure of a country’s institutions leaves space within which the judiciary can operate. The countries discussed in Volume I were the following: (1) the United States, (2) Canada, (3) Australia, (4) India, (5) Israel, (6) South Africa, and (7) the United Kingdom....

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The United States: Creation, Reconstruction, the Progressives, and the Modern Era

The History and Growth of Judicial Review, Volume 1 ◽

10.1093/oso/9780190075774.003.0005 ◽

2021 ◽

pp. 97-182

Author(s):

Steven Gow Calabresi

Keyword(s):

United States ◽

Judicial Review ◽

Separation Of Powers ◽

State Legislatures ◽

Federal Court ◽

The United States ◽

Federal Courts ◽

American People ◽

State Governments ◽

State Laws

This chapter focuses on the origins and growth of judicial review of the constitutionality of federal and state legislation in the United States. American judicial review emerged from the vertical federalism umpiring of the King-in-Council, which reined in errant colonies; and from the open political space created by bicameralism, the separation of powers, and federalism, which gave the federal courts the political leeway to engage in judicial review of the constitutionality of federal and state laws. American judicial review took its present form of allowing horizontal separation of powers and enumerated powers vertical judicial review during the critical years between 1776 and 1803 when the faith of the American people shifted away from state legislatures and state governments and toward stronger executives and courts and a much stronger national government. This theory is set forth correctly by Professor Gordon S. Wood in both articles he has shared with me and in conversation. The addition of the three Reconstruction Amendments, and the enormous statutory expansions of federal court jurisdiction and of the number of lower federal court judges after the Civil War, occurred for rights from wrongs reasons. They led, after the incorporation of the Bill of Rights against the states between 1940 and 1970, to a situation where the Supreme Court now reins in errant state legislatures in much the same way the King-in-Council used to rein in errant colonial legislatures.

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Judicial review and codification

Legal Studies ◽

10.1111/j.1748-121x.2000.tb00158.x ◽

2000 ◽

Vol 20 (4) ◽

pp. 517-537 ◽

Cited By ~ 2

Author(s):

Timothy H. Jones

Keyword(s):

United States ◽

Judicial Review ◽

Separation Of Powers ◽

The United States ◽

Democratic Legitimacy ◽

Administrative Procedure ◽

Advantages And Disadvantages ◽

Administrative Action ◽

Further Development

This article addresses the potential advantages and disadvantages of codifying the grounds of judicial review of administrative action. The four principal legal values associated with codification are described: certainty; clarity; democratic legitimacy; and rationality. The extent to which codification might further these values is considered in the light of two comparative models: the United States Administrative Procedure Act 1946 and the Australian Administrative Decisions (Judicial Review) Act 1977 (Cth). It is concluded that codification offers no solution to the practical and theoretical problems of judicial review. Codification places the content of the principles of judicial review in the hands of politicians. Australian legislation limiting the grounds of review available in migration cases shows the danger to the separation of powers inherent in codification. If it is thought desirable to foster the further development of the principles of judicial review, this can best be achieved by leaving the task to the judiciary.

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The Republic of France

10.1093/oso/9780190075736.003.0007 ◽

2021 ◽

pp. 157-188

Author(s):

Steven Gow Calabresi

Keyword(s):

United States ◽

French Revolution ◽

Judicial Review ◽

Separation Of Powers ◽

The United States ◽

Executive Power ◽

Checks And Balances ◽

Fifth Republic ◽

National Assembly ◽

The Republic

This chapter looks at French judicial review. From the French Revolution of 1789 up until the adoption in 1958 of the Constitution of the Fifth Republic, the Republic of France refused to tolerate any kind of judicial review of the constitutionality of legislation. The traditional French view was that judicial power is oligarchic, opposed to progressive causes, and should be contained as much as possible. The 1958 French Constitution provides an elaborate system of checks and balances with its bicameral legislature consisting of the National Assembly and the Senate; with its division of the executive power between the president and the prime minister (who can be from opposite political parties); and with its increasing focus on decentralization. As such, just as federalism umpiring helped to give rise to judicial review in the United States, Canada, Australia, Switzerland, and India, so too did separation of powers umpiring help to give rise to judicial review in France. Judicial review in France was hugely expanded in 1971, for rights from wrongs reasons; in 1974, for insurance and commitment reasons; and in 2008, for borrowing reasons.

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