Separation of Powers and the Growth of Judicial Review in Established Democracies (Or Why Has the Model of Legislative Supremacy Mostly Been Withdrawn from Sale?)

Abstract

Most of the literature explaining the tremendous growth of judicial review in recent decades has focused on the transition from authoritarian rule or post-conflict states and employed a broadly public choice methodology to account for the change. To the more limited extent explanations have been presented for the significant number of established parliamentary democracies that have also created or expanded judicial review during the same period, these have also mainly relied on a similar public choice framework. This article presents an alternative – or at least supplementary – account of the abandonment of traditional legislative supremacy in this latter group that is institutional in content and puts the parliamentary nature of these democracies in the center of the picture. It identifies a series of developments and changed institutional practices that have combined to undermine faith in political accountability as an effective and sufficient check on the undue concentration of governmental authority. In this way, the article argues that separation of powers concerns have been an important reason for the growth of judicial review in these countries.

Keywords: judicial review, separation of powers, parliamentary democracies, legislative supremacy, political constitutionalism, political parties, party system, bicameralism