10. Judicial Review and Democracy

2021 ◽  
pp. 141-155
Author(s):  
William Abel ◽  
Elizabeth Kahn ◽  
Tom Parr ◽  
Andrew Walton
Keyword(s):  
Judicial Review ◽  
The State

This chapter argues that the state should use judicial review to constrain democracy. It identifies several rights that individuals possess, and then defends judicial review as a mechanism for protecting these rights. The chapter then considers the objection that judicial review is undemocratic because it constrains the laws that an electorate or their representatives might adopt. To explore this idea, it distinguishes two arguments in defence of democracy. The first holds that democracy is valuable because it produces good outcomes, and the second holds that democracy is valuable because it treats each member of a society equally when they disagree about which outcomes are good.

The Constitutional Principle of Accountability: A Study of Contemporary South African Case Law

2018 ◽  
Vol 33 (1) ◽  
Author(s):  
Chuks Okpaluba
Keyword(s):  
Judicial Review ◽  
Police Officers ◽  
Public Procurement ◽  
Case Law ◽  
The State ◽  
Constitutional Principle ◽  
Starting Point ◽  
The Law ◽  
Constitutional Right ◽  
The Many

‘Accountability’ is one of the democratic values entrenched in the Constitution of South Africa, 1996. It is a value recognised throughout the Constitution and imposed upon the law-making organs of state, the Executive, the Judiciary and all public functionaries. This constitutional imperative is given pride of place among the other founding values: equality before the law, the rule of law and the supremacy of the Constitution. This study therefore sets out to investigate how the courts have grappled with the interpretation and application of the principle of accountability, the starting point being the relationship between accountability and judicial review. Therefore, in the exercise of its judicial review power, a court may enquire whether the failure of a public functionary to comply with a constitutional duty of accountability renders the decision made illegal, irrational or unreasonable. One of the many facets of the principle of accountability upon which this article dwells is to ascertain how the courts have deployed that expression in making the state and its agencies liable for the delictual wrongs committed against an individual in vindication of a breach of the individual’s constitutional right in the course of performing a public duty. Here, accountability and breach of public duty; the liability of the state for detaining illegal immigrants contrary to the prescripts of the law; the vicarious liability of the state for the criminal acts of the police and other law-enforcement officers (as in police rape cases and misuse of official firearms by police officers), and the liability of the state for delictual conduct in the context of public procurement are discussed. Having carefully analysed the available case law, this article concludes that no public functionary can brush aside the duty of accountability wherever it is imposed without being in breach of a vital constitutional mandate. Further, it is the constitutional duty of the courts, when called upon, to declare such act or conduct an infringement of the Constitution.

Traditional and Customary Law: Adat

2018 ◽  
Author(s):  
Simon Butt ◽  
Tim Lindsey
Keyword(s):  
Judicial Review ◽  
Rural Areas ◽  
Small Proportion ◽  
Local Governments ◽  
The State ◽  
Customary Law ◽  
Constitutional Court ◽  
The Past ◽  
Statutory Protection ◽  
Traditional Communities

Many Indonesians—primarily those living in rural areas—still follow customary law (adat). The precise rules and processes of that adat differ significantly from place to place, even within short distances. This chapter shows that for many decades, adat has been subservient to national law. State-made law overrode it, leaving it applicable only in a very small proportion of cases where no national law applied, where judges could apply it as ‘living law’. Even in these cases, many judges ignored adat or distorted it when deciding cases. The 1945 Constitution was amended in 2000 to require the state to formally recognize and respect customary law, as practised in traditional communities. The Constitutional Court has given effect to this in various judicial review cases, as have some statutes enacted in the past decade or so. However, this constitutional and statutory ‘protection’ has been impeded in practice by requirements for traditional communities to be formally ‘recognized’ by their local governments, many of whom have been unresponsive to calls for recognition.

Interest Group Litigation and the Embedded State: Canada's Court Challenges Program

2001 ◽  
Vol 34 (2) ◽  
pp. 357-376 ◽  
Author(s):  
Ian Brodie
Keyword(s):  
Interest Group ◽  
Judicial Review ◽  
The State ◽  
Social Actors ◽  
Social Interests ◽  
History Of ◽  
The Way

Interest group litigation is often seen as pitting social interests against the state. This view matches a wider perspective that judicial review is a battle between state and social actors. Recently, neo-institutionalist and postpluralists have led political scientists to question the assumptions that underlie these traditional views of judicial review and interest group litigation. If the state is an active patron of interest group litigation then the way we see interest group litigation and judicial review must change. This article traces the history of the Court Challenges Program of Canada and concludes that the Program's evolution challenges the traditional views of judicial review and interest group litigation. It shows an embedded state at war with itself in court.

Judicial Review

2021 ◽  
pp. 31-68
Author(s):  
Jeffrey S. Sutton
Keyword(s):  
Supreme Court ◽  
Judicial Review ◽  
The State ◽  
State Courts ◽  
Court Case ◽  
State Laws ◽  
State Constitutions ◽  
The Us ◽  
Us Supreme Court ◽  
Us Constitution

The conventional account of judicial review starts with a US Supreme Court case, Marbury v. Madison. But judicial review in truth starts with the state courts and the state constitutions, not the US Supreme Court and the US Constitution. Before the US Constitution existed, the state courts established American judicial review and were the first courts to wrestle with the complexities of exercising it. Judicial review also is foremost a structural story, not an individual-rights story. The delegation of power to the judiciary to decide the meaning of our constitutions laid the groundwork for the growth in power of American courts—especially the federal courts, which have become the go-to answer for so many who-decides questions in American government over the last seventy-five years. This chapter begins a search for insights in resolving the dilemma of judicial review by looking at how the state courts innovated the concept and the ways they initially practiced it. It shows that the early state courts were deferential to the democratic branches of government. They rarely invalidated state laws and did so only when these laws violated a clear constitutional rule. That approach offers lessons for federal and state courts alike.

7. Power and accountability in environmental law

2017 ◽  
pp. 81-94
Author(s):  
Elizabeth Fisher
Keyword(s):  
Collective Action ◽  
Judicial Review ◽  
Review Process ◽  
Environmental Law ◽  
State Power ◽  
The State ◽  
Collective Action Problem ◽  
Nation States ◽  
Good Government ◽  
Scientific Expertise

Nation states dominate environmental law because of the need for a comprehensive exercise of authority in response to a collective action problem within any particular jurisdiction. ‘Power and accountability in environmental law’ explains that what makes the exercise of state power legitimate is that it is employed in accordance with established principles of good government—principles nearly always embodied in law. However, behind many environmental debates and disagreements are disagreements about the power of the state. The different administrative institutions of environmental law are described as well as how scientific expertise is fundamental to environmental law. The judicial review process is also outlined.

Administrative Procedure and Judicial Review in China

2021 ◽  
pp. 44-46
Author(s):  
Xiaowei Sun
Keyword(s):  
Public Interest ◽  
Judicial Review ◽  
Global Market ◽  
The State ◽  
International Standards ◽  
Administrative Litigation ◽  
The Public ◽  
Administrative Procedure ◽  
Definition Of ◽  
Direct Applicability

This chapter focuses on administrative procedure and judicial review in China. Despite its willingness to adapt to the rules of the global market, China does not accept the direct applicability of international standards in administrative litigation. Judicial review of administration is based on a set of legislative texts and judicial interpretations by the Supreme People's Court. Among these texts, the Administrative Litigation Law regulates the judicial review of administrative acts. There are two lists in its chapter concerning the scope of judicial review: one includes the administrative acts that are open to judicial review, another the acts that are not reviewable. In any case, it is up to the courts to examine the following two combinations of criteria: the degree of the seriousness of the infringement with the definition of the state interest and that of the public interest; and the degree of procedural breach with the definition of the real impact on the rights of the plaintiff. According to Article 76 of the ALL, in the case of annulment and/or declaration of unlawfulness of an administrative act, a court may order the administration to take measures to compensate the damage inflicted on the plaintiff.

scholarly journals Islam as a Civilizational Threat: Constitutional Identity, Militant Democracy, and Judicial Review in Western Europe

2020 ◽  
Vol 21 (6) ◽  
pp. 1228-1256
Author(s):  
Malthe Hilal-Harvald
Keyword(s):  
Judicial Review ◽  
Liberal Democracy ◽  
Western Europe ◽  
The State ◽  
Fundamental Rights ◽  
Decision Makers ◽  
The Political ◽  
Political Decision ◽  
Imminent Threat ◽  
Constitutional Identity

AbstractMultiple laws and regulations in Western Europe have been enacted on the premise that headscarves and face veils constitute an existential threat to the constitutional identity of the respective legal systems. Thus, the logic of militant democracy as a justification for restricting fundamental rights have been applied in order to restrict the freedom to manifest one’s religion. Yet, the politicymakers claiming to defend the constitutional identity through militant democracy have not been able to prove the existence of a concrete, imminent threat against the state from the women who wear headscarves or face veils. Nonetheless, the European judiciaries have taken the political claim at face value and allowed the restrictions without compelling the political decision-makers to provide substantive justifications. Thus, the cases of headscarves and face veils offer a prism, through which we can study fundamental paradoxes of liberal democracy and constitutionalism.

Judicial Review in Modern Constitutional Systems

1952 ◽  
Vol 46 (4) ◽  
pp. 1079-1099 ◽  
Author(s):  
David Deener
Keyword(s):  
Judicial Review ◽  
Political System ◽  
The State ◽  
Theory And Practice ◽  
Historical Background ◽  
Systematic Treatment ◽  
Martial Law ◽  
Totalitarian Regime ◽  
Political Processes ◽  
Western Democracy

The problem of guarding the constitution is fundamental in any political system. If the term “constitution” is given a very broad definition, such dictatorial devices as powerful secret police and special tribunals for the safety of the state may be regarded as means for the protection of the “constitution” of a totalitarian regime. However, western democracy does not rely upon repressive means for safeguarding the constitution, except in times of crisis when use is made of martial law, the state of siege, and constitutional dictatorship. For normal times, western democracy has developed constitutional means of protection that essentially resemble ordinary legal and political processes, such as the amending process, special deliberative bodies, and judicial review.This study is concerned with judicial review as a means of guarding against legislative encroachments on the constitution. The acceptance of judicial review in national constitutional systems will be traced historically, with emphasis upon twentieth-century developments. Some attention will be given to the historical background of judicial review and to its theory and practice under various modern constitutions, but no systematic treatment of these subjects is attempted.

Redefining “Property”: The Constitutional Battle over Land Redistribution in Zimbabwe

1994 ◽  
Vol 38 (2) ◽  
pp. 144-172 ◽  
Author(s):  
Alison Van Horn
Keyword(s):  
Judicial Review ◽  
The State ◽  
Political Issue ◽  
Land Redistribution ◽  
War For Independence ◽  
Robert Mugabe ◽  
Productive Land ◽  
Peasant Farmers

This article is about the appropriate role of the judiciary in the constitutional debate over land redistribution in Zimbabwe. The possession of land in Zimbabwe has been the most volatile political issue since the war for independence. White ownership of the most productive land fuelled the war against Rhodesia. A constitutional settlement in 1979 resulted in a cease-fire, but the Declaration of Rights prohibited the new government from acquiring land for resettlement purposes except on a “willing seller, willing buyer” basis. With the expiration of the decade-long entrenchment of the Declaration of Rights in 1990, President Robert Mugabe declared his intention to honour a promise made eleven years before: to resettle peasant farmers on previously white-owned land. Since then, Parliament has amended the Constitution of Zimbabwe three times to allow the state to acquire property for resettlement and to give Parliament the power to fix the amount of compensation without judicial review.

scholarly journals The State of Judicial Review in 1973 Constitution of Pakistancc

2020 ◽  
Vol V (Winter 2020) ◽  
pp. 22-28
Author(s):  
Khan Faqir ◽  
Imtiaz Ali
Keyword(s):  
Judicial Review ◽  
The State ◽  
The Other ◽  
Constitutional History ◽  
The Government

The aim of this paper is to highlight the power of judicial review in the 1973 constitution of Pakistan. The three organ of the government the executive, judiciary and legislature are working in such a way that each organ is functioning in its sphere. The functions and activities may not be disturbed by each other. There is a mechanism in the 1973 constitution of Pakistan of judicial review. In this way the judiciary has some check on the other branches of the government. Under the 1973 constitution, the judiciary has certain powers to control the executive and legislative branches of the government. In this way judiciary is playing a key role in Pakistan. The paper is an attempt to highlight the process of judicial review in the 1973 constitution of Pakistan and its role in constitutional history in Pakistan.

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