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Judicial review

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This article is about court power over non-judicial branches. For court power over lower courts, see Appellate review.

Judicial review is the doctrine in democratic theory under which legislative and executive action is subject to invalidation by the judiciary. Specific courts with judicial review power must annul the acts of the state when it finds them incompatible with a higher authority, such as the terms of a written constitution. Judicial review is an example of the functioning of separation of powers in a modern governmental system (where the judiciary is one of three branches of government). This principle is interpreted differently in different jurisdictions, which also have differing views on the different hierarchy of governmental norms. As a result, the procedure and scope of judicial review differs from country to country and state to state.

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General

Judicial review of administrative acts

Most modern legal systems allow the courts to review administrative acts; i.e., individual decisions of a public body, such as a decision to grant a subsidy or to withdraw a residence permit. In most systems, this also includes review of secondary legislation; i.e., legally enforceable rules of general applicability adopted by administrative bodies. Some countries, most notably France and Germany, have implemented a system of administrative courts, that are charged exclusively with deciding on disputes between the members of the public and the administration. In other countries, including the United States, United Kingdom and the Netherlands, judicial review is carried out by regular civil courts, although it may be delegated to specialized panels within these courts, such as the Administrative Court within the High Court of England and Wales. The United States employs a mixed system in which some administrative decisions are reviewed by the United States district courts, which are the general trial courts, some are reviewed directly by the United States courts of appeals, and others are reviewed by specialized tribunals such as the United States Court of Appeals for Veterans Claims (which, despite its name, is not technically part of the federal judicial branch). It is quite common that before a request for judicial review of an administrative act is filed with a court, certain preliminary conditions, such as a complaint to the authority itself, must be fulfilled.

In most countries, the courts apply special procedures in administrative cases.

Judicial review of primary legislation

There are three broad approaches to judicial review of the constitutionality of primary legislation; that is, laws passed directly by an elected legislature.

Some countries do not permit any review of the validity of primary legislation. In the United Kingdom, statutes cannot be set aside under the doctrine of parliamentary sovereignty. Another example is the Netherlands, where the Constitution expressly forbids the courts to rule on the question of constitutionality of primary legislation.[1]

The United States is unique as the sole country in which federal and state courts, at all levels (appellate and trial) are able to review and declare the constitutionality (or lack thereof) of legislation that is relevant to any case properly within their jurisdiction. In American legal language, “judicial review” refers primarily to the adjudication of constitutionality of statutes, especially by the Supreme Court of the United States.

A number of other countries whose constitutions do provide for a review of the compatibility of primary legislation with the constitution have established special constitutional courts that have the exclusive authority to deal with this issue: see List of constitutional courts. In these systems, other courts are not competent to question the constitutionality of primary legislation.

Judicial review in specific jurisdictions

Notes

  1. ^ Article 120 of the Netherlands Constitution

See also

External Links