unit 8 Flashcards
Define ‘strong’ and ‘weak’ judicial review of legislation and illustrate with
examples.
Strong judicial review allows courts to invalidate unconstitutional laws with binding authority, requiring constitutional amendments for legislative overrides (e.g., the U.S.), while weak judicial review limits courts to flagging inconsistencies without nullifying laws, enabling legislatures to override rulings through ordinary majority votes, as seen in Canada, New Zealand, and the UK.
What are the arguments put forward in Federalist n. 78 and Marbury v. Madison to support judicial review of legislation? Why Jefferson opposed it?
Judicial review, as defended by Hamilton in Federalist No. 78 and Marshall in Marbury v. Madison, ensures constitutional supremacy and minority rights protection by empowering courts to nullify unconstitutional laws, while critics like Jefferson caution against judicial overreach and its potential to undermine legislative sovereignty and democratic accountability.
Illustrate the origins, evolution and the reasons of the spread of strong judicial
review of legislation in Europe.
Judicial review of legislation (JRL) in Europe emerged from limited 19th-century practices, evolved through post-war demands for constrained democracy, and spread globally by balancing constitutional safeguards with democratic principles, shaped by centralized courts, historical distrust of unchecked legislatures, and the influence of totalitarianism’s lessons.
‘Constitutional silence requires constitutional review’. Discuss with a view to
Marbury v. Madison and United Mizrahi Bank.
Both Marbury v. Madison (1803) and United Mizrahi Bank v. Migdal Cooperative Village (1995) establish judicial review as an implicit necessity to uphold constitutional supremacy and protect democratic principles, even in the absence of explicit textual authorization.
What are the historical reasons justifying the preference for a decentralized or
centralized system of judicial review of legislation?
The preference for centralized or decentralized judicial review arises from differing political and legal traditions, with common law systems favoring decentralized review due to trust in courts and skepticism of government, while civil law systems prefer centralized review to align with legislative sovereignty and ensure consistency in constitutional interpretation.
What are the arguments in favour of centralized constitutional review?
Centralized constitutional review, through a specialized court, offers advantages like enhanced expertise, uniformity in constitutional interpretation, democratic legitimacy, and efficiency in addressing complex constitutional issues, aligning particularly well with civil law systems, though it faces criticism for concentrating power and potential conflicts with ordinary courts.
What are the advantages and disadvantages of life and limited tenure of
constitutional judges?
Life tenure for constitutional judges promotes judicial independence, protects the Constitution, fosters expertise, and prevents political manipulation, but critics argue that limited tenure enhances democratic accountability and flexibility, despite potentially undermining judicial independence and increasing political influence.
Illustrate the structure of [constitutional questions/constitutional challenges/individual constitutional complaints]
Constitutional questions, challenges, and individual complaints are distinct mechanisms for constitutional review, with questions initiated by ordinary judges, challenges brought by political institutions, and complaints filed directly by individuals, each offering different levels of access and influence over the constitutional adjudication process.
What is the difference between abstract and concrete review? What are their
respective advantages and disadvantages?
Abstract review involves the constitutional court examining laws independently of specific cases, often initiated by political institutions to prevent unconstitutional laws, while concrete review involves the court addressing constitutional issues within actual cases, typically initiated by ordinary judges or individuals, with each process offering distinct advantages and challenges related to scope, initiation, and access.
What is the impact of the establishment of constitutional courts on the ordinary
judicial architecture?
The establishment of constitutional courts creates a dual judicial system where ordinary judges act as gatekeepers for constitutional issues, enhancing their role, while the constitutional court becomes a specialized body ensuring consistency and expertise in constitutional interpretation, though it can delay proceedings and limit individual access to direct constitutional review.
Why is the legitimacy of strong judicial review of legislation contested? Are there
constitutional guarantees against democracy-inhibiting judgments?
The legitimacy of strong judicial review is contested due to historical distrust of judicial power, particularly in civil law countries, and concerns about courts undermining democratic processes, though constitutional guarantees like political accountability and transparency seek to prevent overreach and ensure alignment with democratic principles.
Describe the structure and actual operation of weak judicial review of legislation
with a view to the experiences of Canada, New Zealand and the United Kingdom.
Weak judicial review in Canada, New Zealand, and the United Kingdom involves judicial oversight that respects parliamentary sovereignty by limiting courts’ ability to invalidate laws outright, relying instead on advisory mechanisms such as the Notwithstanding Clause (Canada), declarations of inconsistency (New Zealand), and declarations of incompatibility (UK), leaving final legislative authority to Parliament.
‘Weak judicial review of legislation offers a valuable alternative to both strong
judicial review of legislation and parliamentary sovereignty in that it secures the
protection of constitutional rights while placating the legitimacy concerns for judicial
supremacy’. Discuss.
Weak judicial review strikes a balance between protecting constitutional rights and maintaining democratic legitimacy by allowing courts to interpret, but not invalidate, legislation, avoiding judicial supremacy while respecting parliamentary sovereignty.
