Judicial Review, Administrative Review, and Constitutional Review in the Weimar Republic

Ratio Juris ◽  
2003 ◽  
Vol 16 (2) ◽  
pp. 266-280 ◽  
Author(s):  
Michael Stolleis
Keyword(s):  
Judicial Review ◽  
Weimar Republic ◽  
Constitutional Review ◽  
Administrative Review

The Counter-Majoritarian Difficulty and the Road not Taken: Democratizing Amendment Rules

2012 ◽  
Vol 25 (1) ◽  
pp. 53-78
Author(s):  
Joel I. Colón Ríos
Keyword(s):  
Judicial Review ◽  
Institutional Arrangement ◽  
Basic Feature ◽  
Constitutional Reform ◽  
Democratic Legitimacy ◽  
Judicial Decision ◽  
Constitutional Review ◽  
The Road ◽  
The People ◽  
Elected Representatives

Discussions about the democratic legitimacy of judicial review of legislation are usually framed in terms of the so called ‘counter-majoritarian’ difficulty, the idea that judicial review is a deviant institution in a democracy. How can a country be considered democratic if a group of non-elected judges have the faculty to strike down laws that have been adopted by a majority of the elected representatives of the people? In framing the question in those terms, however, we tend to forget that there is nothing in the counter-majoritarian difficulty suggesting that judicial review of legislation is necessarily problematic from a democratic perspective. An institutional arrangement that gives judges the faculty to strike down laws inconsistent with the constitution only creates a counter-majoritarian difficulty if the constitution cannot be amended by simple majorities. In not paying proper attention to the role played by a rigid amendment process in the existence of a counter-majoritarian difficulty, this article argues, we have missed the opportunity of democratizing processes of constitutional reform in important ways while at the same time maintaining in place a system of constitutional review in which judges retain the ability of striking down legislation.The idea of giving simple majorities the possibility of having the final word on the meaning and scope of rights is of course not new. In fact, it is the basic feature of the weak system of judicial review now present in several commonwealth countries. However, such a system does not go beyond courts and legislatures, and it is therefore open to the same types of critiques advanced by defenders of strong judicial review against systems of legislative supremacy. The article defends the view that in a democratic society, deliberation and decision-making about the meaning and content of the constitution should extend beyond the ordinary institutions of government. Under that conception, a more democratic approach to the counter-majoritarian difficulty would provide popular majorities (as opposed to legislatures) with the faculty of amending the fundamental law in order to respond to a judicial decision that invalidated (or validated) an ordinary law. For example, citizens could be able to engage in the activity of constitutional reform through non-constituent assemblies, triggered by popular referendum and having the specific mandate of deliberating about the judicial decision in question and the power to propose constitutional changes that would be subject to popular ratification.

Constitutional Review by the Judiciary in the Netherlands: A Bridge Too Far?

2010 ◽  
Vol 11 (2) ◽  
pp. 275-290 ◽  
Author(s):  
Gerhard van der Schyff
Keyword(s):  
United States ◽  
The Netherlands ◽  
Supreme Court ◽  
Judicial Review ◽  
United States Supreme Court ◽  
The United States ◽  
United States Supreme ◽  
Constitutional Review ◽  
Judicial Control ◽  
Chief Justice

One could be forgiven for thinking that constitutional review by the judiciary is invariably part of modern constitutionalism. Gone are the days that constitutions contained provisions that prevented the courts from testing the constitutionality of legislation, such as section 59 of South Africa's now repealed Constitution of 1961 that forbade the courts from inquiring into or pronouncing on the validity of legislation. It has come to be accepted in many quarters that a constitution presupposes judicial review in some form or another in gauging the integrity of legislation, instead of only relying on legislative wisdom as before. An attitude that echoes the views expressed inMarbury v. Madisonby Chief Justice Marshall of the United States Supreme Court, that by its very nature a written constitution implies judicial control. However, the Constitution of the Netherlands proves to be an exception in this regard, as section 120 states emphatically that:The constitutionality of Acts of Parliament and treaties shall not be reviewed by the courts.

Constitutional Rights and Democracy: A Reply to Professor Bellamy

2013 ◽  
Vol 14 (8) ◽  
pp. 1039-1051 ◽  
Author(s):  
W.J. Waluchow
Keyword(s):  
Judicial Review ◽  
Constitutional Rights ◽  
Social Cooperation ◽  
Bill Of Rights ◽  
Political Equality ◽  
Constitutional Review ◽  
The People ◽  
Democratic Character ◽  
Self Rule ◽  
Elected Representatives

In his rich and thoughtful paper, Richard Bellamy sketches a theory of individual rights that ascribes to them an inherently democratic character that “is best captured by a republican view of liberty as non-domination, rather than the standard liberal account of liberty as non-interference.” According to this view, “rights involve an implicit appeal to democratic forms of reasoning.” That is, the only justifiable “foundation of rights must be some form of ongoing democratic decision making that allows rights to be claimed under conditions of political equality.” Bellamy uses this particular model of rights to defend a somewhat unique thesis concerning the legitimacy of judicial review under a constitutional charter or bill of rights (henceforth constitutional review). Many legal theorists question whether constitutional review can ever be rendered consistent with the theoretical and practical demands of democracy. According to these theorists, democracy embodies a form of self-rule whereby the members of a society establish and exercise legitimate authority over themselves. But self-rule seems seriously compromised once constitutional review enters the picture. Instead of having the people and their elected representatives setting the basic terms of social cooperation, we have instead a small group of elite, unelected, and unaccountable judges performing this vital task. Constitutional review empowers these individuals, in constitutional review cases, to substitute their own contestable views and preferences with respect to the basic terms of social cooperation for the duly considered views and preferences of the people and those whom they have duly elected to represent them. This is something one simply cannot tolerate in a democracy.

The Full Effect of EU Law and of Constitutional Review in Belgium and France after the Melki Judgment

2011 ◽  
Vol 7 (3) ◽  
pp. 355-391 ◽  
Author(s):  
Marc Bossuyt ◽  
Willem Verrijdt
Keyword(s):  
Human Rights ◽  
Judicial Review ◽  
A Priori ◽  
Eu Law ◽  
Constitutional Review ◽  
Court Of Justice ◽  
Full Effect

Coincidence of human rights review by national and European courts – Courts questioning and delimiting each other's jurisdiction – Evolution of judicial review of legislation in Belgium and France – Rules giving priority to national human rights review over European human rights review – Melki judgment Court of Justice – Conformity with Union law – Balance between effectiveness of EU review and effectiveness of constitutional review – Effectiveness of human rights – Obligatory a priori human rights review of secondary Union law

scholarly journals Amicus Curiae e Audiências Públicas no Controle de Constitucionalidade Brasileiro

2014 ◽  
Vol 9 (2) ◽  
Author(s):  
Oscar Valente Cardoso
Keyword(s):  
Judicial Review ◽  
Federal Court ◽  
Constitutional Court ◽  
Amicus Curiae ◽  
Constitutional Review ◽  
Public Hearings

AMICUS CURIAE E AUDIÊNCIAS PÚBLICAS NO CONTROLE DE CONSTITUCIONALIDADE BRASILEIRO  AMICUS CURIAE AND PUBLIC HEARINGS ON BRAZILIAN CONSTITUTIONAL REVIEW RESUMO: O artigo trata de dois institutos inseridos formalmente no controle abstrato de constitucionalidade brasileiro por meio da Lei nº 9.868/99: o amicus curiae e a análise de fatos. A abordagem é ao mesmo tempo teórica, com fundamento em doutrina nacional e estrangeira, e prática, com base na interpretação do Supremo Tribunal Federal. Enfatiza as diferenças existentes entre ambos e a ausência da distinção necessária em determinadas situações. Busca-se contribuir para a exata delimitação e aplicação de cada um, além de demonstrar que os dois institutos ampliam os meios processuais à disposição do Supremo Tribunal Federal no exercício de sua função de Tribunal Constitucional, porém, ainda não estão devidamente consolidados na prática da Corte. PALAVRAS-CHAVE: Controle de constitucionalidade; Amicus curiae; Audiências públicas. ABSTRACT: This article analyzes two institutes formally added to Brazilian abstract constitutional review through Act nº 9.868/99: Amicus Curiae and Fact Review. The approach is at the same time theoretical, based on national and foreign doctrine, and practical, based on the interpretation of the Supreme Federal Court. It emphasizes the differences between themselves and the lack of the necessary distinction in certain situations. It seeks to contribute for defining and implementing both institutes, in addition to demonstrating that the two institutes extend the procedural means available to the Supreme Federal Court in the exercise of its function as Constitutional Court, although they are not yet duly consolidated in the practice of the Court. KEYWORDS: Judicial review; Amicus curiae; Public hearings.

scholarly journals Filling the Hole in Indonesia’s Constitutional System: Constitutional Courts and the Review of Regulations in a Split Jurisdiction

2018 ◽  
Vol 4 (1) ◽  
pp. 27
Author(s):  
Tim Lindsey
Keyword(s):  
Supreme Court ◽  
Judicial Review ◽  
Civil Law ◽  
Constitutional Court ◽  
Constitutional Courts ◽  
Constitutional Review ◽  
The Real ◽  
The Supreme Court ◽  
Constitutional System ◽  
Do So

The Indonesian constitutional system contains a serious flaw that means that the constitutionality of a large number of laws cannot be determined by any court. Although the jurisdiction for the judicial review of laws is split between the Constitutional Court and the Supreme Court, neither can review the constitutionality of subordinate regulations. This is problematic because in Indonesia the real substance of statutes is often found in implementing regulations, of which there are very many. This paper argues that that is open to the Constitutional Court to reconsider its position on review of regulations in order to remedy this problem. It could do so by interpreting its power of judicial review of statutes to extend to laws below the level of statutes. The paper begins with a brief account of how Indonesia came to have a system of judicial constitutional review that is restricted to statutes. It then examines the experience of South Korea’s Constitutional Court, a court in an Asian civil law country with a split jurisdiction for judicial review of laws like Indonesia’s. Despite controversy, this court has been able to interpret its powers to constitutionally invalidate statutes in such a way as to extend them to subordinate regulations as well. This paper argues that Indonesia’s Constitutional Court should follow South Korea’s example, in order to prevent the possibility of constitutionalism being subverted by unconstitutional subordinate regulations.

scholarly journals Settlement of Tax Disputes in the Russian Federation and Germany

2015 ◽  
pp. 269-275
Author(s):  
A. A. Konyukhova
Keyword(s):  
Russian Federation ◽  
Judicial Review ◽  
Dispute Settlement ◽  
German Law ◽  
Federal Republic Of Germany ◽  
Legal Proceedings ◽  
Specialized Courts ◽  
The Russian Federation ◽  
Administrative Review ◽  
Settlement Mechanism

This article is devoted to the settlement of tax disputes in the Russian Federation and the Federal Republic of Germany. The features of the conflict settlement mechanism are both shown in the stage of administrative and judicial review. In accordance with German law, the administrative stage of dispute resolution, carried out by the tax authority, always precedes the filing of a complaint to a court. Consequently, the taxpayer submits his first application in writing to the tax authority that issued the tax act, though in some cases to a higher tax authority. This obligatory procedure was borrowed by the Russian tax system. The trial stage of tax dispute settlement in Germany is carried out by specialized courts, forming a two-level system for legal proceedings. Thus, the tax dispute submitted to the Court is settled first by the financial lands courts and then by the higher Federal Financial Court. However, the Federal Financial Court takes into consideration only certain categories of actions listed in the Act (the Regulations) of finance courts (Finanzgerichtordnung). In Russia appeals of administrative review of tax conflicts, unlike in the German system, are handled by arbitration and general jurisdiction courts. The Supreme Arbitration Court of the Russian Federation is the supreme judicial body for settling economic disputes and other cases considered by arbitration courts in implementing federal procedural judicial supervision over their activities and provides explanations regarding judicial practices. Arbitration courts established at the level of the Federation to resolve disputes involving commercial entities, e.g. enterprises and entrepreneurs, resolve the bulk of tax disputes. These courts are composed of specially created panels of judges known as bars, i.e. groups of judges who specialize in reviewing taxation cases.

Part IV Separation of Powers, Ch.24 Review of Administrative Action

2016 ◽  
Author(s):  
Jalan Prateek ◽  
Rai Ritin
Keyword(s):  
Supreme Court ◽  
Judicial Review ◽  
Separation Of Powers ◽  
Executive Power ◽  
Indian Constitution ◽  
Administrative Action ◽  
Administrative Review ◽  
Consistent Basis ◽  
Indian Supreme Court ◽  
Legislative Review

This chapter examines the concept of administrative review in the context of the Indian Constitution, with particular emphasis on how administrative actions are reviewed under Article 14. It first considers whether administrative review is different from legislative review, and especially whether the grounds of judicial review under Article 14 apply to the same extent when it comes to the validity of legislation compared with administrative action. It then discusses the scope of the power of administrative review under the concept of ‘reasonableness’ and whether this concept has been applied on a consistent basis. It also comments on the inherently abstract and imprecise nature of the concept of ‘reasonableness’ and how this has contributed to the lack of a judicially manageable test or standard for analysing the various cases adjudicated by the Indian Supreme Court. Finally, the chapter discusses the nature of executive power and how it may influence an adjudication of reasonableness.

The Judicial Enforcement of Socio-Economic Rights in South Korea

2019 ◽  
Vol 12 (3) ◽  
pp. 819-836
Author(s):  
Wonil Cha
Keyword(s):  
Judicial Review ◽  
Political Process ◽  
The Political ◽  
Social Rights ◽  
Legal Basis ◽  
The South ◽  
Economic Rights ◽  
Constitutional Review ◽  
South Korean ◽  
The Welfare State

Abstract Socio-economic rights are regarded as an indispensable foundation of substantial freedom. At the same time, the embodiment of socio-economic rights in the Constitution is generally associated with concerns about their quality as a fundamental right and their judicial enforcement. The South Korean Constitution upholds the principle of the welfare state in the preamble, the fundamental social rights of Articles 31 to 36 and Article 119 (2), providing the legal basis for the regulation and coordination of economic affairs by the State. The implementation of these constitutional norms and ideals was left largely to the political process beyond judicial review for many decades. As a result of the rapid economic development, the democratization process and the introduction of constitutional review in the last 30 years, the normative discussion of basic social rights, both on societal and legal level, has taken on a new life. This article examines the South Korean Constitutional Court’s approach to judicial review in the socio-economic field with due regard to this changing reality.

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