Cecily Zamora
Judicial review is the power of the courts to examine the actions of the legislative, executive, and administrative arms of the government and determine whether they are consistent with the constitution. In some countries, judicial review can only be exercised in concrete cases or controversies, and only after the fact, i.e., only laws that are in effect or actions that have already occurred can be found to be unconstitutional. However, in countries following the European model of constitutional review, such as France, judicial review must take place in the abstract, i.e., in the absence of an actual case or controversy, and before a challenged law has taken effect. This abstract review is linked to the principle of legal certainty, as it prevents the court from contradicting itself by giving different opinions about the constitutionality of a piece of legislation in different cases. The European model also centralises the power to hold a statute or ordinary law as unconstitutional in the constitutional court, with the exception of Portugal, where ordinary courts are also allowed to set aside legislation based on their competence.
| Characteristics | Values |
|---|---|
| Abstract review | The court may examine a statute or a piece of ordinary legislation in the abstract and invalidate them with general effects if they contravene the constitution |
| In France, judicial review must take place in the abstract, i.e. in the absence of an actual case or controversy and before a challenged law has taken effect | |
| In Austria, Germany, South Korea, and Spain, courts can exercise judicial review only after a law has taken effect, and they can do so either in the abstract or in concrete cases | |
| The abstract character of constitutional review is linked to the principle of legal certainty | |
| The constitutional court might contradict itself if it reviewed statutes as it decided specific cases |
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What You'll Learn
- Judicial review: courts examine government actions to determine consistency with the constitution
- Federal-state conflicts: federal courts abstain from jurisdiction if state law is unclear
- Constitutional courts: empowered to set aside laws that run counter to the constitution
- Constitutional checks and balances: an essential element of democratic government
- Constitutional interpretation: social sciences influence comparative constitutional studies
Judicial review: courts examine government actions to determine consistency with the constitution
Judicial review is a process by which courts—typically supreme or constitutional courts—examine government actions to determine their consistency with the constitution. If a court finds that a government action or statute violates the constitution, it can declare the action or statute unconstitutional and null and void. Judicial review is considered a key feature of constitutional law and a cornerstone of democratic government.
In the United States, the power of judicial review is vested in the Supreme Court and inferior courts established by Congress. While the Constitution does not expressly grant federal courts the power to declare government actions unconstitutional, it is widely accepted that the federal courts have a duty to interpret and apply the Constitution and to ensure that federal and state laws comply with it. This power of judicial review allows the national government to interpret its own restrictions and ensures uniformity in the interpretation of national laws.
The Supreme Court has final appellate jurisdiction in all cases arising under the Constitution, giving it the ultimate authority to decide whether statutes are consistent with the Constitution. The Court's appellate jurisdiction, however, is defined by Congress, which may limit judicial review through jurisdiction stripping or by requiring a supermajority for the Court to deem an Act of Congress unconstitutional.
Other countries have also adopted judicial review, often influenced by the US model. For example, Germany, Italy, and South Korea created special constitutional courts, while India, Japan, and Pakistan set up supreme courts to exercise judicial review in a similar manner to the US. In Europe, the structural features of the European model of constitutional review include centralisation and abstract review. This means that only a constitutional court can declare a statute or ordinary law unconstitutional, and it can do so in the abstract, without connection to an actual controversy.
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Federal-state conflicts: federal courts abstain from jurisdiction if state law is unclear
The legal system in the United States is a complex one, with many areas regulated by both state and federal governments. Article III of the U.S. Constitution gives jurisdiction in certain types of cases solely to federal courts. However, federal courts primarily interfere with state courts in three ways:
- By enjoining proceedings in them
- By issuing writs of habeas corpus to set aside convictions obtained in them
- By adjudicating cases removed from them
The abstention doctrine, which is perhaps the fullest expression of the concept of comity, instructs federal courts to abstain from exercising jurisdiction if the applicable state law is unclear. This means that if a state law that would be dispositive of the controversy is unclear, and a state court's interpretation of that law might make resolving a federal constitutional issue unnecessary, federal courts should refrain from getting involved.
This doctrine serves the interests of federal-state comity by avoiding a result in 'needless friction with state policies' and sparing federal courts from unnecessary constitutional adjudication. It also reflects a proper respect for state functions and the belief that the National Government will fare best if the States and their institutions are left free to perform their separate functions in their separate ways.
However, abstention is not always proper. If the relevant state law is settled, or if it is clear that the state statute or action challenged is unconstitutional regardless of how the state court interprets state law, then federal courts may exercise jurisdiction.
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Constitutional courts: empowered to set aside laws that run counter to the constitution
The abstract character of constitutional review is linked to the principle of legal certainty. Constitutional courts are empowered to set aside laws that run counter to the constitution. This is known as judicial review.
Judicial review is the power of the courts to examine the actions of the legislative, executive, and administrative arms of the government and determine whether such actions are consistent with the constitution. If a law is judged to be inconsistent with the constitution, it is declared unconstitutional and, therefore, null and void. Judicial review is dependent on the existence of a written constitution.
In some countries, judicial review can only be exercised in concrete cases or controversies and only after the fact. That is, only laws that are in effect or actions that have already occurred can be found to be unconstitutional, and only when they involve a specific dispute between litigants. In France, Italy, Austria, Germany, South Korea, and Spain, judicial review must take place in the abstract, in the absence of an actual case or controversy, and before a challenged law has taken effect.
The European model of constitutional review of legislation is characterized by centralization and abstract review. Centralization means that only the constitutional court is empowered to hold that a statute or a piece of ordinary law is unconstitutional. The exception to this is Portugal, where the Constitution also allows ordinary courts to set aside legislation based on their competence. According to abstract review, a court may examine a statute or a piece of ordinary legislation in the abstract and invalidate them with general effects if they contravene the constitution.
In the United States, the Supreme Court is the highest court in the land and is the court of last resort for those seeking justice. It has original jurisdiction over certain cases, such as suits between two or more states or cases involving ambassadors and other public ministers. It also has appellate jurisdiction over almost any other case involving a point of constitutional or federal law. The Supreme Court plays a crucial role in ensuring that each branch of government recognizes its limits and protecting civil rights and liberties by striking down laws that violate the Constitution.
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Constitutional checks and balances: an essential element of democratic government
The concept of constitutional checks and balances is an essential element of democratic government. This is evident in the influence of US constitutional ideas post-World War II, which saw over 100 countries adopt judicial review, a process that examines the actions of the legislative, executive, and administrative arms of government to ensure they are consistent with the constitution.
The structural features of the European model of constitutional review include centralisation and abstract review. Centralisation empowers only the constitutional court to deem a statute or ordinary law as unconstitutional, with Portugal being an exception. Abstract review allows the court to examine and invalidate statutes or ordinary legislation if they contravene the constitution. This is done in the absence of an actual controversy, and before a challenged law takes effect, as seen in France.
Abstract review is also linked to the principle of legal certainty. If a constitutional court reviewed statutes while ruling on specific cases, there could be contradictions in its decisions. Abstract review reduces such contradictions by ensuring that constitutional review is not linked to a particular dispute or case.
In some countries, judicial review can only be exercised in concrete cases or controversies, and only after laws have taken effect, as seen in the US, Kenya, and New Zealand. Other countries, like Austria, Germany, South Korea, and Spain, can exercise judicial review after a law has taken effect, either in the abstract or in concrete cases.
The US Constitution, for example, has the Three-Judge Court Act, where a panel of three federal judges hears cases involving suits that seek to restrain state officers from enforcing state statutes that violate the federal Constitution. This ensures a more authoritative determination and prevents individual predilections.
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Constitutional interpretation: social sciences influence comparative constitutional studies
The concept of "abstract review" in constitutional law refers to the court's examination of a statute or ordinary legislation without any connection to an actual controversy. This means that the constitutionality of a law is assessed in the abstract, without considering a specific case or dispute. This approach is followed in countries like France, Germany, Austria, South Korea, and Spain.
Now, turning to the topic of "Constitutional Interpretation: Social Sciences Influence Comparative Constitutional Studies".
Comparative constitutional studies have witnessed a “comparative turn," with scholars employing various approaches, including doctrinal, law-and-society, documentary, and cultural varieties of constitutional comparison. At the core of each of these varieties lies an interpretive exercise oriented by its distinctive purpose. However, the growing influence of social sciences on constitutional comparison has sparked concerns.
The social sciences have influenced the methods of analysis employed in comparative constitutional studies. For example, interview techniques, focus group studies, and statistical modelling are now used to generate comparative insights. Social scientists may focus on specific constitutional institutions or political parties in selected countries to draw comparisons.
Additionally, the influence of social sciences has led to a “myth of scientism” in the field. This refers to the belief that comparative constitutional studies can be approached with the same scientific rigour and methodological sophistication as the natural sciences. Proponents of this view advocate for the use of statistical analysis and other empirical methods to extract implicit messages from constitutional texts.
However, critics argue that this scientism may inadvertently impoverish comparative constitutional studies. They suggest that the multifaceted nature of constitutional phenomena may elude purely scientific analysis, and that traditional legal hermeneutics cannot be excluded from the interpretation of complex constitutional designs and their real-world effects.
In conclusion, while the social sciences have influenced the methods and approaches of comparative constitutional studies, there are ongoing debates about the potential benefits and drawbacks of applying scientific rigour to the interpretation of complex constitutional phenomena.
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Frequently asked questions
Abstract disputes in constitutional law refer to the review of statutes or ordinary legislation by a court in the absence of a specific case or controversy. This means that the constitutionality of a law is examined without a direct connection to an actual dispute or controversy.
The term "abstract" is used because the review is conducted at a level of generality, abstracting from the specific facts of a particular case. The focus is on the constitutionality of the law in theory rather than its application in a concrete situation.
Abstract review ensures legal certainty and consistency. If constitutional review were linked to specific disputes or cases, courts might contradict themselves by giving different opinions on the constitutionality of the same piece of legislation in different cases.
Countries like France, Germany, Austria, South Korea, and Spain practice abstract review. They may conduct abstract review before or after a challenged law has taken effect, depending on the country-specific model.
In countries following the abstract review model, the constitutional court examines the compatibility of a statute or ordinary legislation with the constitution. If the law is found to contravene the constitution, the court may invalidate it with general effects, meaning it is deemed unconstitutional and cannot be applied in any case.
