The judicial review of legality

2021 ◽  
Author(s):  
Natalie R. Davidson ◽  
Leora Bilsky
Keyword(s):  
Judicial Review ◽  
Constitutional Law ◽  
New Model ◽  
Substantive Content ◽  
Comparative Constitutional Law ◽  
Recent Developments ◽  
Relationship Of

In comparative constitutional law, the various models of judicial review require courts to examine either the substantive content of legislation or the procedure through which legislation was passed. This article offers a new model of judicial review – ‘the judicial review of legality’ – in which courts review instead the forms of law. The forms of law are the ways in which law communicates its norms to the persons who are meant to comply with them, and they include generality, clarity, avoidance of contradiction, and non-retroactivity. Drawing on recent writing on the jurisprudence of Lon Fuller, this article argues that Fuller’s linking of the forms of law to a relationship of reciprocity between government and governed can ground judicial review and that such review provides a missing language to address important legislative pathologies. Moreover, through an analysis of recent developments in Israel, the article demonstrates that the judicial review of legality targets some of the key legal techniques of contemporary processes of democratic erosion which other models of judicial review struggle to address, all the while re-centring judicial review on the lawyer’s craftsmanship and thus reducing problems of court legitimacy. This article therefore offers a distinctive and normatively appealing way for courts to act in troubling times.

From promise to retrenchment: On the changing landscape of Israeli constitutionalism

2020 ◽  
Author(s):  
Adam Shinar ◽  
Barak Medina ◽  
Gila Stopler
Keyword(s):  
Supreme Court ◽  
Rule Of Law ◽  
Judicial Review ◽  
Constitutional Law ◽  
Israeli Society ◽  
Individual Rights ◽  
Constitutional Order ◽  
The Supreme Court ◽  
Comparative Constitutional Law ◽  
Constitutional Revolution

Abstract Israeli constitutionalism has long interested comparative constitutional law scholars, whether due to its geopolitical status, the Israeli–Palestinian conflict, its internal divisions, or its unique constitutional evolution. Unlike many other countries that have ratified constitutions after the Second World War, Israel was established as a parliamentary democracy, with an explicit intention to ratify a constitution at a later stage. This did not happen. Instead, it underwent a “constitutional revolution” announced by its Supreme Court. Fitting a revolution, much of comparative constitutional law scholarship has focused on this pivotal moment. The articles in this symposium depart from the scholarship focused on that moment. They seek to critically understand what has become of Israeli constitutionalism in the past decade. In this introduction, we highlight several transformations and features which we believe are essential if one is to understand the extant constitutional order in Israel. These should be understood as background conditions against which Israeli constitutionalism is operating. They include the strengthening of judicial review alongside rising political resistance to the Court’s power; populism in political discourse targeting rule of law institutions; the erosion of individual rights alongside the strengthening of nationalist elements; and increasing divisions inside Israeli society. These challenge the idea of a successful constitutional revolution in terms of its inherent promise to better protect individual rights and safeguard the rule of law. In describing these features, we seek to situate the Supreme Court, judicial review, and the legal-constitutional order generally, in the larger sphere of Israeli society and politics.

Comparative Constitutional Law

2019 ◽  
pp. 1192-1221 ◽  
Author(s):  
Mark Tushnet
Keyword(s):  
National Identity ◽  
Gender Equality ◽  
Judicial Review ◽  
Comparative Studies ◽  
Constitutional Law ◽  
Free Expression ◽  
National Differences ◽  
Comparative Constitutional Law ◽  
International Rights ◽  
And Gender

This article examines the evolution of the field of comparative constitutional law and its relationship to politics and international rights; constitutionalism; constitutional foundings and transformations; constitutional structures; structures of judicial review; generic constitutional law; and national identity. Innumerable comparative studies address the ways in which different constitutions and constitutional systems deal with specific topics, such as privacy, free expression, and gender equality. However valuable such studies have been in bringing information about other constitutional systems to the attention of scholars versed in their own systems, their analytic payoff is sometimes questionable. Scholarship in comparative constitutional law is perhaps too often insufficiently sensitive to national differences that generate differences in domestic constitutional law. Or, put another way, that scholarship may too often rest on an implicit but insufficiently defended preference for the universalist approach to comparative legal study over the particularist one.

Comparative Constitutional Law

2006 ◽  
pp. 1224-1258 ◽  
Author(s):  
Mark Tushnet
Keyword(s):  
National Identity ◽  
Gender Equality ◽  
Judicial Review ◽  
Comparative Studies ◽  
Constitutional Law ◽  
Free Expression ◽  
National Differences ◽  
Comparative Constitutional Law ◽  
International Rights ◽  
And Gender

This article examines the evolution of the field of comparative constitutional law and its relationship to politics and international rights; constitutionalism; constitutional foundings and transformations; constitutional structures; structures of judicial review; generic constitutional law; and national identity. Innumerable comparative studies address the ways in which different constitutions and constitutional systems deal with specific topics, such as privacy, free expression, and gender equality. However valuable such studies have been in bringing information about other constitutional systems to the attention of scholars versed in their own systems, their analytic payoff is sometimes questionable. Scholarship in comparative constitutional law is perhaps too often insufficiently sensitive to national differences that generate differences in domestic constitutional law. Or, put another way, that scholarship may too often rest on an implicit but insufficiently defended preference for the universalist approach to comparative legal study over the particularist one.

scholarly journals Funciones secundarias de la Corte Constitucional colombiana: una aproximación a la decisión sobre excusas a los emplazamientos cursados por el Congreso // Colombian Constitutional Court’s ancillary powers: an approa ch to its decisions regarding refusal to attend congress’ hearings

2018 ◽  
Vol 1 (102) ◽  
pp. 373
Author(s):  
Rodrigo González Quintero ◽  
Luis Javier Moreno Ortiz
Keyword(s):  
Judicial Review ◽  
Constitutional Law ◽  
Comparative Law ◽  
Case Law ◽  
Judicial Power ◽  
Review System ◽  
Control Functions ◽  
Constituent Assembly ◽  
Comparative Constitutional Law

Resumen:Este artículo se centra en la poco explorada cuestión las competencias secundarias de la Corte Constitucional colombiana, en especial sobre la competencia de decidir sobre las excusas a los emplazamientos que hace el Congreso en ejercicio de su control político y público. Para este propósito se estudia el origen de esta competencia en la Asamblea Nacional Constituyente, se la analiza en el contexto de otras experiencias constitucionales y se considera,a partir de fuentes teóricas (normativas y doctrinales) y evidencia empírica(estudio de casos), dos hipótesis sobre su naturaleza y alcance, para concluirque se trata de una competencia jurisdiccional, que se concreta en una providencia judicial que hace tránsito a cosa juzgada, y que puede tenerse comouna modalidad especial del control de constitucionalidad.Abstract:This article is focused on the ill studied topic of the Colombian Constitutional Court’s ancillary powers, and especially on its decisions regarding a person’s refusal to attend hearings related to Congress’ control functions. Thus, the text begins with the origins of this power discussed at the constituent assembly, then analyzing it in Comparative Constitutional Law. Also taking into account both theoretical and practical elements — such as doctrine, norms and case law—, it does propose two hypotheses concerning its character and effects, concluding that entails an exercise of judicial power with res iudicata force and that it comprises a especial type of judicial review.Summary:Introduction. I. An Approach to the Colombian Judicial Review System. II. Ancillary Powers to Judicial Review: Debates and Adoption at the Constitutional Assembly. III. Ancillary Powers to Judicial Review in the Constitutional Court’s Case Law. IV. Ancillary Powers to Judicial Review in Comparative Law. V. Constitutional Court’s Decisions regarding Excuses for Subpoenas. Nature. Holdings. VI. Conclusions. Bibliography 

Conclusion

2018 ◽  
Author(s):  
Lucas A. Powe
Keyword(s):  
Federal Government ◽  
Judicial Review ◽  
Constitutional Law ◽  
Religious Freedom ◽  
Civil Liberties ◽  
Law And Politics ◽  
State Capture ◽  
Roe V Wade ◽  
Relationship Of ◽  
The Relationship

This chapter concludes that the book has discussed Texas's influence on all the doctrinal areas of modern constitutional law, showing that constitutional cases litigated by and in the state capture the major themes of the relation of law and politics in the entire country. In addition to representing all doctrinal areas of constitutional law, Texas cases revolve around the major issues of the nation, from race to wealth and poverty to civil liberties and the relationship of the states and the federal government to war. This conclusion summarizes some of those important cases, including City of Boerne v. Flores, an exercise in judicial review striking down the Religious Freedom Restoration Act as it applied to states; Texas v. Johnson (flag burning); Reagan v. Farmers' Loan and Trust (railroad rates); Lawrence v. Texas (homosexual sodomy); and Roe v. Wade and Whole Woman's Health v. Hellerstedt (abortion).

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.

Sign in / Sign up

Export Citation Format

Share Document