A New Typology of Judicial Review of Legislation
(2014) 3(2) Global Constitutionalism 143-169
28 Pages Posted: 17 Nov 2016
Date Written: 2014
There are, it is usually said, two main models of judicial review of legislation. The first model is normally identified as ‘strong judicial review’. According to this model, the only way legislators can override a judicial invalidation of a law deemed inconsistent with a constitutional provision is through constitution-amending legislation (which would normally need to be adopted by a legislative supermajority or by the legislature and the electorate acting together). This is the model of judicial review present in most countries in North and South America, as well as in Europe. The second model, ‘weak judicial review’, gives ordinary legislative majorities the final word on the validity of all laws. However, judges have the duty of interpreting legislation in a rights-consistent way (or, if this is not possible, they are sometimes allowed to make non-binding declarations of inconsistency) or to initially ‘strike down’ the law in question.
Weak judicial review is present in several commonwealth jurisdictions, even though its first explicit formulations occurred in 19th and early 20th century Latin American constitutions. The distinction between strong and weak judicial review currently occupies a privileged place in comparative constitutional law. This paper argues that it is time to replace the weak/strong judicial review dichotomy with a more nuanced typology that includes two other increasingly influential forms of judicial review that extend judges’ strike-down powers to constitution-amending legislation and, therefore, fall outside the traditional weak-form and strong-form categories.
The two ‘new’ models can be identified as ‘strong basic structure review’ and ‘weak basic structure review’. The former, present in some common law countries such as India and Belize, not only provides judges with the ability to strike-down legislation that is inconsistent with a particular constitutional provision, but also constitutional amendments incompatible with the principles on which the constitution rests. Under this model (strong basic structure review) judges are given the (true) final word on the validity of all legislation: there are no legal means to bring back to life a constitutional amendment that has been struck down. The latter model, weak basic structure review, currently present in some Latin American countries, also provides judges with the right of striking down ordinary and constitution-amending legislation, but gives ‘the people’, acting through a constituent assembly, the final word on the validity of any form of positive law. The paper concludes by exploring the possibility of the development of a fifth model in which even the constituent people would be bound by certain principles to be identified and enforced by judges.
Keywords: Judicial Review, Legislation, Constitutional Law
JEL Classification: K00, K10, K40
Suggested Citation: Suggested Citation