The Origins of Judicial Review

Abstract

This paper argues that judicial review usually emerges in response to a nation’s need for an umpire to resolve federalism or separation of powers boundary line disputes. Once such an umpire is established, judicial review tends to expand to protect individual rights as well as umpiring among different levels and branches of government. We consider and reject Professor Ran Hirschl’s hegemonic preservation theory, as set out in Towards Juristocracy, and instead focus on the emergence of judicial review in France, Germany, Canada, Australia, India, the United Kingdom, and the European Union. We believe that these very populous and economically prosperous jurisdictions are more revealing of the origins of judicial review as an institution than are the four small jurisdictions that Professor Hirschl focused on. One implication of our study is that it may be important for courts to continue to hear and decide federalism and separation of powers boundary line disputes because doing so legitimates judicial action in individual rights Bill of Rights cases.

Keywords: Constitutional Law, Comparative Law, Separation of Powers, Federal Jurisdiction

JEL Classification: K10, K30, K33