Some Phases of the Theory and Practice of Judicial Review of Legislation in Foreign Countries

1930 ◽  
Vol 24 (3) ◽  
pp. 583-605 ◽  
Author(s):  
Charles Grove Haines
Keyword(s):  
Judicial Review ◽  
National Government ◽  
Theory And Practice ◽  
Constitutional Courts ◽  
Public Discussion ◽  
Foreign Countries ◽  
Judicial Supremacy ◽  
Parliamentary Supremacy ◽  
American Method ◽  
Eighteenth And Nineteenth Centuries

It is no longer customary to the extent that it formerly was to maintain that judicial review of legislation and the consequent annulment of laws is an exclusively American political practice. With the courts of at least a score of countries passing on the validity of legislative acts, and occasionally refusing to apply them in concrete cases, the American method of guarding constitutions, characterized in the eighteenth and nineteenth centuries as a new political phenomenon, has now an extensive application among the countries operating under written fundamental laws.Interesting developments are taking place with respect to judicial review of legislation in foreign countries. Austria and Czechoslovakia have established special constitutional courts with authority to determine whether acts are in accord with their constitutions. Germany is in the process of adopting judicial review of acts of the national government as implied in the provisions of the new constitution. According to certain jurists, French courts have taken the first steps to establish themselves as the special interpreters and guardians of the French constitution. Though the dominant opinion of French lawyers and statesmen is opposed to judicial review as a feature of the French system of government, there is a growing sentiment in favor of the acceptance of the principle, as a necessary means of rendering more effective the provisions of the constitution and of protecting individual rights as guaranteed in the Declaration of Rights. The Irish Free State has followed the lead of Canada and Australia in placing the guardianship of its new constitution in the courts. In adopting a new constitution, Chile appears to have taken preliminary steps to change a system of parliamentary supremacy to a modified régime of judicial supremacy. There is considerable public discussion in Switzerland of the possibility of accepting the principle of review of the acts of the Federal Assembly.

scholarly journals Judicial Supremacy and National Judicial Review

2011 ◽  
Author(s):  
Ken I. Kersch
Keyword(s):  
Judicial Review ◽  
Federal Courts ◽  
Theory And Practice ◽  
Academic Disciplines ◽  
Alexander Hamilton ◽  
The People ◽  
Judicial Supremacy ◽  
The Us ◽  
Us Constitution ◽  
We The People

Judicial review is the power of a court to assess the constitutionality of legislation, and to hold null and void any legislation it finds to contravene the Constitution. Although not mentioned anywhere in the US Constitution, the power was exercised by both state and federal courts from the nation’s inception, most prominently by the US Supreme Court in Marbury v. Madison (1803). In Marbury, borrowing from arguments advanced earlier by Alexander Hamilton in Federalist #78, and more general common law and colonial understandings, Chief Justice John Marshall set out a theoretical justification for the practice anchored in a court’s duty to decide cases according to law. In so doing, where a court finds a conflict between the fundamental law of the Constitution (adopted by “We the People,” acting in their sovereign capacity), and ordinary law (passed by legislatures), the court is obliged to give precedence to the former over the latter. Although this has been widely accepted as a legitimate practice arising out of a judge’s broader duty to decide cases according to law, there were always those who objected to judicial review as implicitly instituting “judicial supremacy,” where, by virtue of the exercise of the judicial review power, a judge’s interpretation of the Constitution was held to take precedence over that of any other. But why should the judge’s interpretation be understood as supreme, when elected members of Congress and the president—like judges—also takes oaths to uphold the Constitution and may have their own, perhaps more sensible, interpretation? Debates over these matters recur throughout American history, particularly in periods when, on matters of unusual political salience, the court’s interpretation of the Constitution is consistently at odds with that of other elected officials, or of the people (what, in recent years, has come to be called “extra-judicial constitutional interpretation”). For over a century now—beginning with the contestation in the late 19th and early 20th centuries between traditionalist judges wielding their judicial review powers versus the progressive innovations of the newly emerging American regulatory and social welfare state—the nature, theory, and practice of judicial review have been at the center of academic and popular discussion of US constitutional law. The subject has thus been approached from many angles, by scholars from different academic disciplines, with a diversity of questions in mind. Those researching judicial review will usually have in mind a particular angle rather than the whole subject.

Nomination of Constitutional Justices in Post-Communist Countries: Trial, Error, Conflict in the Czech Republic

2006 ◽  
Vol 2 (2) ◽  
pp. 183-208 ◽  
Author(s):  
Zdeněk Kühn ◽  
Jan Kysela
Keyword(s):  
Czech Republic ◽  
Judicial Review ◽  
Constitutional Courts ◽  
The Czech Republic ◽  
American Model ◽  
Parliamentary Supremacy ◽  
Communist Countries

Selection and nomination of constitutional justices – American model of judicial review in post-communist countries – Tensions between parliamentary supremacy and excessive activism of Constitutional Courts – Possibility of reappointment and the independence of justices – Lack of cooperation between President and Senate in the Czech Republic – Politicization of judicial nomination and democracy.

scholarly journals PENGAWASAN TERHADAP PERATURAN KEPALA DAERAH

Yuridika ◽  
2012 ◽  
Vol 27 (1) ◽  
Author(s):  
E. Prajwalita Widiati ◽  
Haidar Adam
Keyword(s):  
Local Government ◽  
Judicial Review ◽  
Local Governments ◽  
Public Services ◽  
Daily Basis ◽  
National Government ◽  
Local Regulation ◽  
Good Review ◽  
Review Mechanism

Decentralisation puts weigh in the dynamic of local government. As consequences of decentralization, local governments are entitled to enact local regulation in order to serve public services in the daily basis. Local regulation as the product of the Mayor of course does not stand alone. It is part of national legislative system which lay at the low tier of the hierarchy of laws. It should be work effectively and harmoniously with the system. By analyzing the nature of decentralization and the function of local legislation, it is essential to establish a good review mechanism for this legislative product. Different mechanism results in different consequences to the regulation. This article has analysed three mechanisms both preventive and represive; executive review which is done by the Governor and National Government; judicial review which is done by the Court and even political review which is exercised by the local representatives who act as balancing power to the local executive.Keywords: Peraturan Kepala Daerah, Executive Review, Judicial Review, Political Review

scholarly journals Chevron at 30: Looking Back and Looking Forward

2018 ◽  
Author(s):  
Peter M. Shane
Keyword(s):  
Natural Resources ◽  
Judicial Review ◽  
Administrative Law ◽  
Review Symposium ◽  
Theory And Practice ◽  
Administrative State ◽  
Regulatory State ◽  
Thirtieth Anniversary ◽  
Scholarly Discussion ◽  
Looking Back

This Foreword introduces a Fordham Law Review symposium held in March 2014 to mark the thirtieth anniversary of Chevron U.S.A. v. Natural Resources Defense Council. One of the most-cited administrative-law decisions of all time, Chevron has sparked thirty years of scholarly discussion concerning what Chevron deference means, when (or even if) it should apply, and what impact it has had on the administrative state. Part I of the Foreword discusses the symposium contributions that address Chevron’s scope and application, especially in light of City of Arlington v. FCC. Part II introduces the contributions that explore empirically and theoretically Chevron’s impact outside of the judicial-review context -- i.e., its effect on legislative- and administrative-drafting theory and practice, its influence within the regulatory state more generally, and its adoption (or lack thereof) in state administrative law. Part III turns to the intersection of Chevron and federalism. Part IV concludes by grappling with the contributors’ diverse views on whether Chevron is indeed a big deal and, if so, whether it is a good or bad deal for the modern administrative state.

ISSUES OF REGULATING PRICES FOR SEPARATE FOOD PRODUCTS IN THE ASPECT OF ENSURING THE ECONOMIC SECURITY OF THE RUSSIAN FEDERATION

2021 ◽  
Vol 1 (8) ◽  
pp. 20-36
Author(s):  
M. Yu. LEV ◽  
Keyword(s):  
Economic Theory ◽  
Market Economy ◽  
Economic Security ◽  
Price Regulation ◽  
Theory And Practice ◽  
Regulatory Documents ◽  
Consumer Prices ◽  
Foreign Countries ◽  
Economic Program ◽  
The Russian Federation

The paper examines the legislation on price regulation in certain industrially developed foreign countries in modern conditions of market economy. The development of the economic theory and practice of price regulation in the XX century in foreign countries is considered. The analysis of regulatory documents regulating prices for products in Austria, Belgium, France; changes in consumer prices in Russia and foreign countries is carried out. It is concluded that in ensuring the socio-economic security of the state, it is necessary to actively search for an economic theory that could become the foundation of a government economic program aimed at improving the welfare of the population.

Other Prerogative Powers

2020 ◽  
pp. 213-232
Author(s):  
Michael W. McConnell
Keyword(s):  
United States ◽  
Judicial Review ◽  
The United States ◽  
National Government ◽  
Habeas Corpus ◽  
The Church

This chapter focuses on the Convention and the Committee of Detail that addressed and allocated every prerogative power of the Crown to the president or to Congress or denied the power to the national government altogether. It looks at the significant categories of prerogative power and emphasizes that the framers' treatment of lesser powers is often interesting and revealing. It also mentions the Habeas Corpus Acts of 1640 and 1679 that effectively ended the practice of early monarchs asserting authority to imprison subjects without legal redress by guaranteeing judicial review. The chapter reviews the substantial prerogative powers of the king in his capacity as the supreme governor of the “Church by Law Established.” It identifies the prerogative powers that devolved upon the United States and eventually became nongovernmental.

Introduction The Birth and Growth of Judicial Review: 1607–2020

2021 ◽  
pp. 1-14
Author(s):  
Steven Gow Calabresi
Keyword(s):  
Judicial Review ◽  
Separation Of Powers ◽  
Charismatic Leadership ◽  
The United States ◽  
Boundary Line ◽  
Constitutional Courts ◽  
Supreme Courts ◽  
Checks And Balances ◽  
The Third

This introductory chapter discusses how judicial review of the constitutionality of legislation has usually emerged historically for a combination of four reasons. First, judicial review of the constitutionality of legislation is a response to a nation’s need for an umpire to resolve federalism or separation of powers boundary line disputes. The second main cause of the origins and growth of judicial review of the constitutionality of legislation is what can be called the rights from wrongs hypothesis; judicial review very often emerges as a response to an abominable deprivation of human rights. The third major cause is the out-and-out borrowing of the institution of judicial review of the constitutionality of legislation from either the United States’ model; the German Civil Law model; and, most recently, from the Canadian Second Look judicial review constitutional model. The fourth major cause is the existence of a system of checks and balances, which gives Supreme Courts and Constitutional Courts political space to grow in. Revolutionary charismatic constitutionalism can also lead to the growth of judicial review as Professor Bruce Ackerman has explained in an important new book, REVOLUTIONARY CONSTITUTIONS: CHARISMATIC LEADERSHIP AND THE RULE OF LAW (2019).

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