scholarly journals Judicial Review sem uma Constituição Escrita

2015 ◽  
Vol 10 (1) ◽  
Author(s):  
Douglas E. Edlin
Keyword(s):  
Judicial Review ◽  
Natural Law ◽  
Legal Theory ◽  
Common Law ◽  
The United States ◽  
Formative Period ◽  
Alternative Form ◽  
Legal Doctrine ◽  
Before And After ◽  
Constitutional Thought

“JUDICIAL REVIEW”[1] SEM UMA CONSTITUIÇÃO ESCRITA* JUDICIAL REVIEW WITHOUT A CONSTITUTION Douglas E. Edlin**RESUMO: Nos Estados Unidos, o “judicial review” é entendido, desde Marbury v. Madison (1803), como a avaliação judicial de atos governamentais para assegurar a compatibilidade com a Constituição. Mas antes e depois do caso Marbury, cortes estaduais e federais desenvolveram e praticaram uma espécie de “judicial review” no qual os princípios do “Common Law”, conjuntamente ou ao invés de um cânon documental, onde se utiliza o corpo fundamental da doutrina jurídica para avaliar as ações públicas. Este artigo corrige alguns erros de concepção pelos quais a forma de “judicial review” utilizada no caso Marbury [controle de constitucionalidade] seria a única forma de “judicial review” que existiu ou possa existir neste país. Mais particularmente, o artigo esclarece uma falha de certos escritores em distinguir corretamente o “Common Law” e o direito natural como áreas da teoria e da doutrina do direito. Ao corrigir alguns destes erros históricos e teóricos, o artigo delineia uma compreensão do “judicial review” que descreve mais ampla e corretamente o seu desenvolvimento durante o período formativo do pensamento constitucional norte-americano. PALAVRAS-CHAVE: Judicial Review. Common Law. Direito Natural. Marbury. Constituição. ABSTRACT: In the United States, judicial review is understood, since Marbury v. Madison (1803), as judicial evaluation of government action to ensure compliance with the Constitution. But before and after Marbury, state and federal courts developed and practiced a form of judicial review in which common law principles, along with or instead of a canonical document, were the foundational body of legal doctrine against which public actions were assessed. This article carefully examines the cases in which this alternative form of judicial review emerged, and corrects certain misconceptions that Marbury must be the only form of judicial review that has existed or can exist in this country. More particularly, the article clarifies a failure by certain writers to distinguish properly between common law and natural law as matters of legal theory and legal doctrine. In correcting some of these theoretical and historical errors, the article outlines an understanding of judicial review that more fully captures its development during the formative period of American constitutional thought. KEYWORDS: Judicial Review. Common Law. Natural Law. Marbury. Constitution. SUMÁRIO: Introdução. 1. Os Precedentes das Cortes Estaduais. 2. Os Casos da Suprema Corte. 2.1 O Caso Calder v. Bull. 2.2. O Caso Chisholm v. Geórgia. 2.3. O Caso Fletcher v. Peck. Conclusão. Referências.[1] N. do T. A expressão “judicial review” é normalmente traduzida por controle de constitucionalidade, mas neste artigo o autor analisa o controle de atos legislativos com base em parâmetros que não coincidem, necessariamente, com a Constituição escrita, de modo que preferimos manter o termo no original.* O tradutor para a língua portuguesa, Romulo Ponticelli Giorgi Júnior, é mestre e doutorando em Direito Constitucional pela UFRGS, Procurador da Fazenda Nacional e Professor de Direito Constitucional na Faculdade São Judas Tadeu. Foi Procurador do Município de Porto Alegre, Procurador do Estado do Rio Grande do Sul e Advogado da União.** Professor Assistente do Departamento de Ciência Política da Faculdade Dickinson. O autor agradece a Ken Kersch, a Dick Morgan, a Jim Murphy e a Sylvia Snowiss, assim como aos revisores anônimos que providenciaram várias sugestões muito úteis, por ter lido as versões prévias deste artigo e por terem corrigido erros nas idéias e na expressão destas. O autor assume a responsabilidade pelos erros que permaneceram.

Conclusion The American and Westminster Models

2021 ◽  
pp. 391-396
Author(s):  
Steven Gow Calabresi
Keyword(s):  
United States ◽  
Human Rights ◽  
United Kingdom ◽  
Judicial Review ◽  
Separation Of Powers ◽  
Common Law ◽  
The United States ◽  
State Of Emergency ◽  
The United Kingdom ◽  
European Court

This concluding chapter identifies the four major causes of the growth and origin of judicial review in the G-20 common law countries and in Israel. First, the need for a federalism umpire, and occasionally a separation of powers umpire, played a major role in the development of judicial review of the constitutionality of legislation in the United States, in Canada, in Australia, in India, and most recently in the United Kingdom. Second, there is a rights from wrongs phenomenon at work in the growth of judicial review in the United States, after the Civil War; in Canada, with the 1982 adoption of the Canadian Charter of Rights and Freedoms; in India, after the Indira Gandhi State of Emergency led to a massive trampling on human rights; in Israel, after the Holocaust; in South Africa, after racist apartheid misrule; and in the United Kingdom, after that country accumulated an embarrassing record before the European Court of Human Rights prior to 1998. This proves that judicial review of the constitutionality of legislation often occurs in response to a deprivation of human rights. Third, the seven common law countries all borrowed a lot from one another, and from civil law countries, in writing their constitutions. Fourth, and finally, the common law countries all create multiple democratic institutions or political parties, which renders any political attempt to strike back at the Supreme Court impossible to maintain.

The Diffuse and Second Look Models of Judicial Review

2021 ◽  
pp. 23-34
Author(s):  
Steven Gow Calabresi
Keyword(s):  
United States ◽  
Latin America ◽  
Judicial Review ◽  
Common Law ◽  
The United States ◽  
Constitutional Court ◽  
Bill Of Rights ◽  
The United Kingdom ◽  
Second Look ◽  
The Common

This chapter examines the two models of judicial review that exist in the common law countries: the Diffuse Model and the Second Look Model. The Diffuse Model of judicial review originated in the United States and has spread to India, Canada, Australia, the United Kingdom, most of the countries of Latin America, the Scandinavian countries (except for the Netherlands), and Japan. It is premised on the idea that a country’s written constitution is its supreme law and that courts, when deciding cases or controversies that are properly before them, are thus duty-bound to follow the constitution, which is supreme law, and not a contrary statute whenever those two items conflict. Meanwhile, the essence of the Second Look Model of judicial review is that a Supreme or Constitutional Court ought to have the power of judicial review, subject to some kind of legislative power of override. This, it is said, best harmonizes the advantages of a written constitution and a bill of rights enforced by courts with the imperatives of democratic self-government. The underlying goal is to obtain the advantages of both constitutional government and also of democratic government.

Introduction The Birth and Growth of Judicial Review in the Civil Law World

2021 ◽  
pp. 1-8
Author(s):  
Steven Gow Calabresi
Keyword(s):  
United States ◽  
South Africa ◽  
United Kingdom ◽  
Judicial Review ◽  
Separation Of Powers ◽  
Common Law ◽  
Civil Law ◽  
The United States ◽  
The Political ◽  
The United Kingdom

This book is about the stunning birth and growth of judicial review in the civil law world, since 1945. In Volume I of this two-volume series, I showed that judicial review was born and grew in common law G-20 constitutional democracies and in Israel primarily: (1) when there is a need for a federalism or a separation of powers umpire, (2) when there is a rights from wrongs dynamic, (3) when there is borrowing, and (4) when the political structure of a country’s institutions leaves space within which the judiciary can operate. The countries discussed in Volume I were the following: (1) the United States, (2) Canada, (3) Australia, (4) India, (5) Israel, (6) South Africa, and (7) the United Kingdom....

Skepticism and the Apologetics of Law

1990 ◽  
Vol 3 (1) ◽  
pp. 69-90
Author(s):  
David M. Adams
Keyword(s):  
Social Inequalities ◽  
Legal Theory ◽  
Political Liberalism ◽  
Common Law ◽  
Legal Doctrine ◽  
Legal Studies ◽  
Radical Critique ◽  
Economic Forces ◽  
Basic Approaches ◽  
Basic Features

Contemporary legal theory is increasingly marked by the clash between two opposing, basic approaches to law and legal doctrine. The first approach is skeptical: it seeks both to expose the conceptual and normative commitments of tort or contract or constitutional law, and to impeach them on the grounds that they comprise what are in fact incoherent and morally insupportable ideologies. By contrast, the second approach is explicitly apologetic: it aims to celebrate law by offering a reconstruction and justification of the basic features of constitutional or statutory or common law practice. The first approach is of course represented by the “deconstructionism” imported into law from literary and social theory by those scholars associated with the Critical Legal Studies (“CLS”) movement. At its most controversial, the work of these recent legal skeptics seeks to link traditional legal doctrine, and the modes of analysis and pedagogic methods peculiar to it, with a radical critique of political liberalism by showing that the doctrine and its methods serve to legitimate existing social inequalities, hierarchies, and forms of domination, while at the same time obscuring their own legitimating role. One important corollary of this general thesis is the emphasis upon what Roberto Unger has called “the contradictory and manipulable character of legal doctrine”, i.e., the effort, inspired by the familiar deconstructionist premise that texts lack any fixed or stable and coherently formulable meaning, to “deconstruct” the basic categories of (liberal) legal discourse with the aim of exposing tensions and inconsistencies inherent within them, and of depicting the responsiveness of this “patchwork quilt” to background social, political, and economic forces.

Judge and lawgiver in Anglo-American history

2003 ◽  
Vol 11 (3) ◽  
pp. 325-339
Author(s):  
R. C. VAN CAENEGEM
Keyword(s):  
Judicial Review ◽  
Common Law ◽  
Case Law ◽  
The United States ◽  
European Convention ◽  
Stare Decisis ◽  
The People ◽  
British System ◽  
Anglo American ◽  
The Impact

Politicians are not expected to interfere with the judiciary. Parliament passes laws and the courts interpret and apply them. On the Continent, judicial freedom is restricted by codification, which was avoided in England where greater judicial flexibility survived. In the United States the Restatement of the Law was a move in the direction of codification. Also in that country, judicial review of the constitutionality of the laws gave the judges the power to declare statutes passed by the representatives of the people unconstitutional. No such power exists in England, but the courts have other means of reducing the impact of Acts of Parliament, such as the exclusionary rule and the convention that the lawgiver does not intend to change the common law, which is judge-made case law, governed by the doctrine of precedent. Those traditional elements of the English common law were recently eroded by modernizing trends: the rule of exclusion was given up in favour of the search for the intention of the lawgiver, and the force of stare decisis was reduced. The recent incorporation of the European Convention on Human Rights into British law has introduced a form of judicial review of the laws into the British system.

Mi casa es tu casa? The Limits of Inter-systemic Dispute Resolution

2020 ◽  
pp. 1-20
Author(s):  
Rodrigo Camarena ◽  
Bradly J. Condon
Keyword(s):  
Dispute Resolution ◽  
Judicial Review ◽  
Common Law ◽  
Legal Reasoning ◽  
The United States ◽  
Legal Traditions ◽  
English Speaking ◽  
The Common ◽  
Domestic Law

Abstract The ‘new NAFTA’ agreement between Canada, Mexico, and the United States maintained the system for binational panel judicial review of antidumping and countervailing duty determinations of domestic government agencies. In US–Mexico disputes, this hybrid system brings together Spanish and English-speaking lawyers from the civil and the common law to solve legal disputes applying domestic law. These panels raise issues regarding potential bicultural, bilingual, and bijural (mis)understandings in legal reasoning. Do differences in language, legal traditions, and legal cultures limit the effectiveness of inter-systemic dispute resolution? We analyze all of the decisions of NAFTA panels in US–Mexico disputes regarding Mexican antidumping and countervailing duty determinations and the profiles of the corresponding panelists. This case study tests whether one can actually comprehend the ‘other’. To what extent can a common law, English-speaking lawyer understand and apply Mexican law, expressed in Spanish and rooted in a distinct legal culture?

The History and Growth of Judicial Review, Volume 2

2021 ◽  
Author(s):  
Steven Gow Calabresi
Keyword(s):  
Judicial Review ◽  
Common Law ◽  
Civil Law ◽  
The United States ◽  
The European Union ◽  
The United Kingdom ◽  
Positive Account ◽  
Court Of Justice ◽  
European Court ◽  
To Come

This second volume builds on the story of Volume I as to the origins and growth of judicial review in the key G-20 constitutional democracies, which include the United States, the United Kingdom, France, Germany, Japan, Italy, India, Canada, Australia, South Korea, Brazil, South Africa, Indonesia, Mexico, and the European Union. In addition to discussing the judicial review systems of the major civil law countries in this Volume, I also discuss the birth and growth in power of the European Court of Justice and of the European Court of Human Rights, both of which hear cases ffrom common law as well as civil law countries. This Volume considers the four major theories that help to explain the origins of judicial review, which I discussed as to common law countries. Volume II identifies which theories of the origination and growth in power of judicial review apply best in the various countries discussed. Volume II considers not only what gives rise to judicial review originally, but also what leads to the growth of judicial power over time. My positive account of what causes the birth and growth of judicial review in so many very different countries over such a long period of time may have normative implications for those constitution writers who want a strong form of judicial review to come into being.

The Common Law Legal Tradition: First Things First

2021 ◽  
pp. 15-22
Author(s):  
Steven Gow Calabresi
Keyword(s):  
Judicial Review ◽  
Common Law ◽  
Civil Law ◽  
Primary Source ◽  
Case Law ◽  
The United States ◽  
Public Law ◽  
Legal Tradition ◽  
The Common ◽  
The Law

This chapter explains briefly the origins and development of the common law tradition in order to better understand the rise of judicial review in the seven common law countries discussed in this volume. The common law legal tradition is characterized historically, in public law, by limited, constitutional government and by forms of judicial review of the constitutionality of legislation. In private law, the common law tradition is characterized by judge-made case law, which is the primary source of the law, instead of a massive code being the primary source of the law. The common law tradition is also characterized by reliance on the institution of trial by jury. Judges, rather than scholars, are the key figures who are revered in the common law legal tradition, and this is one of the key things that distinguishes the common law legal tradition from the civil law legal tradition. The common law legal tradition emphasizes judicial power, which explains why it has led to judicial review in the countries studied in this volume. It is the prevailing legal tradition in the four countries with the oldest systems of judicial review of the constitutionality of legislation: the United States, Canada, Australia, and India. Thus, judicial review of the constitutionality of legislation in these four countries is very much shaped by common law attitudes about the roles of judges.

Coke, Corwin and the Constitution: The “Higher Law Background” Reconsidered

1993 ◽  
Vol 55 (3) ◽  
pp. 393-420 ◽  
Author(s):  
Gary L. McDowell
Keyword(s):  
United States ◽  
Judicial Review ◽  
Natural Law ◽  
Constitutional Law ◽  
Moral Theory ◽  
The United States ◽  
American Constitution ◽  
Higher Law ◽  
Relationship Of ◽  
The Relationship

In recent years the debate over the nature and extent of judicial power in the United States has been dominated by questions concerning moral theory, unwritten constitutions, and natural law. In a significant sense, the contemporary discussion is but the continuation of the theory of judicial review first put forth by Edward S. Corwin in 1910–1911; it was this theory that the “higher law background” of American constitutional law derived from the dicta of Sir Edward Coke's opinion in Bonham's Case (1610) that was given its most complete expression in Corwin's famous two-part article in the Harvard Law Review in 1928–29. The fact is, the influence of Coke's opinion in Bonham's Case came from within the scholarly world; its significance stems not from history but from the historians; it was largely Corwin's creation. This paper seeks to correct the record and to show the deficiencies of Corwin's understanding about the relationship of the “higher law” to the American Constitution.

Legality, Legitimacy, and Legislation: The Role of Exceptional Circumstances in Common Law Judicial Review

2020 ◽  
Author(s):  
Hayley J Hooper
Keyword(s):  
20Th Century ◽  
Judicial Review ◽  
Common Law ◽  
Attorney General ◽  
Central Component ◽  
Late 20Th Century ◽  
The Common ◽  
Constitutional Thought

Abstract Preventing the overconcentration of power is a central component of Western constitutional thought. However, in the British constitution power is generally concentrated in representative legislatures. Although these legislatures generally possess legitimating characteristics that courts lack, we cannot assume that this balance will hold true for all time. This article argues that the common law judicial review jurisdiction contains a power to invalidate the Acts of representative legislatures in certain extreme, hypothetical situations. The seeds of this line of thought began with dicta from a minority in Jackson v Attorney General and similar claims have appeared in several other landmark cases, such as AXA Insurance v Lord Advocate and Moohan v Lord Advocate. Rather than something novel, the power to invalidate legislation is best understood as a natural outgrowth of the seeds of a theory of legislative legitimacy present in the common law that began in the late 20th century.

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