Constitutional courts around the world play an increasingly central role in day-to-day democratic governance. Yet scholars have only recently begun to develop the interdisciplinary analysis needed to understand this shift in the relationship of constitutional law to politics. This edited volume brings together the leading scholars of constitutional law and politics to provide a comprehensive overview of judicial review, covering theories of its creation, mechanisms of its constraint, and its comparative applications, including theories of interpretation and doctrinal developments. This book serves as a single point of entry for legal scholars and practitioners interested in understanding the field of comparative judicial review in its broader political and social context.

Comparative scholarship on judicial review has paid a lot of attention to the causal impact of politics on judicial decision-making. However, the slower-moving, macro-social process through which judicial review influences societal conceptions of the law/politics relation is less well understood. Drawing on the political science literature on institutional change, The Politico-Legal Dynamics of Judicial Review tests a typological theory of the evolution of judicial review regimes - complexes of legitimating ideas about the law/politics relation. The theory posits that such regimes tend to conform to one of four main types - democratic or authoritarian legalism, or democratic or authoritarian instrumentalism. Through case studies of Australia, India, and Zimbabwe, and a comparative chapter analyzing ten additional societies, the book then explores how actually-existing judicial review regimes transition between these types. This process of ideational development, Roux concludes, is distinct both from the everyday business of constitutional politics and from changes to the formal constitution.

This book investigates judicial deference to the administration in judicial review, a concept and legal practice that can be found to a greater or lesser degree in every constitutional system. In each system, deference functions differently, because the positioning of the judiciary with regard to the separation of powers, the role of the courts as a mechanism of checks and balances, and the scope of judicial review differ. In addition, the way deference works within the constitutional system itself is complex, multi-faceted and often covert. Although judicial deference to the administration is a topical theme in comparative administrative law, a general examination of national systems is still lacking. As such, a theoretical and empirical review is called for. Accordingly, this book presents national reports from 15 jurisdictions, ranging from Argentina, Canada and the US, to the EU. Constituting the outcome of the 20th General Congress of the International Academy of Comparative Law, held in Fukuoka, Japan in July 2018, it offers a valuable and unique resource for the study of comparative administrative law.

Unlike many other countries, the United States has few constitutional guarantees of social welfare rights such as income, housing, or healthcare. In part this is because many Americans believe that the courts cannot possibly enforce such guarantees. However, recent innovations in constitutional design in other countries suggest that such rights can be judicially enforced--not by increasing the power of the courts but by decreasing it. In Weak Courts, Strong Rights, Mark Tushnet uses a comparative legal perspective to show how creating weaker forms of judicial review may actually allow for stronger social welfare rights under American constitutional law. Under "strong-form" judicial review, as in the United States, judicial interpretations of the constitution are binding on other branches of government. In contrast, "weak-form" review allows the legislature and executive to reject constitutional rulings by the judiciary--as long as they do so publicly. Tushnet describes how weak-form review works in Great Britain and Canada and discusses the extent to which legislatures can be expected to enforce constitutional norms on their own. With that background, he turns to social welfare rights, explaining the connection between the "state action" or "horizontal effect" doctrine and the enforcement of social welfare rights. Tushnet then draws together the analysis of weak-form review and that of social welfare rights, explaining how weak-form review could be used to enforce those rights. He demonstrates that there is a clear judicial path--not an insurmountable judicial hurdle--to better enforcement of constitutional social welfare rights.

"The traditional state model, based on a domestic approach to rule of law, is currently evolving towards a new one, where international factors and relations play a prominent role. This trend is also characterized by the pre-eminence of executive powers, along with a weakening of parliamentary balances and judicial controls. This work seeks to answer two essential questions concerning the rule of law: how can citizens challenge public decisions affecting them, and what kinds of public decisions can be judicially controlled. Two groups of legal regulations are considered in this analysis: the so-called European legal tradition, covering nine national laws strongly influenced by Council of Europe legal standards since 1950, and the more recent body of European Union law. The authors conclude that the issue of individual guarantees vis-à-vis public powers should be carefully monitored in Europe."--

"All over the world, in all democratic States, independently of having a legal system based on the common law or on the civil law principles, the courts – special constitutional courts, supreme courts or ordinary courts – have the power to decide and declare the unconstitutionality of legislation or of other State acts when a particular statute violates the text of the Constitution or of its constitutional principles. This power of the courts is the consequence of the consolidation in contem-porary constitutionalism of three fundamental principles of law: first, the existence of a written or unwritten constitution or of a fundamental law, conceived as a superior law with clear supremacy over all other statutes; second, the “rigid” character of such constitution or fundamental law, which implies that the amendments or reforms that may be introduced can only be put into practice by means of a particular and special constituent or legislative process, preventing the ordinary legislator from doing so; and third, the establishment in that same written or unwritten and rigid constitution or fundamental law, of the judicial means for guaranteeing its supremacy, over all other state acts, including legislative acts. Accordingly, in democratic systems subjected to such principles, the courts have the power to refuse to enforce a statute when deemed to be contrary to the Constitu-tion, considering it null or void, through what is known as the diffuse system of judicial review; and in many cases, they even have the power to annul the said unconstitutional law, through what is known as the concentrated system of judicial review. The former, is the system created more than two hundred years ago by the Supreme Court of the United States, and that so deeply characterizes the North American Constitutional system. The latter system, has been adopted in consti-tutional systems in which the judicial power of judicial review has been generally assigned to the Supreme Court or to one special Constitutional Court, as is the case, for example, of many countries in Europe and in Latin America. This concentrated system of judicial review, although established in many Latin American countries since the 19th century, was only effectively developed particularly in the world after World War II following the studies of Hans Kelsen. Of course, during the past thirty years many changes have occurred in the world on these matters of Judicial Review, in particularly in Europe and specifically in the United Kingdom, where these Lectures were delivered. Nonetheless, I have decided to publish them hereto in its integrality, as they were: the written work of a law professor made as a consequence of his research for the preparation of his lectures, not pretending to be anything else, but the academic testimony of the state of the subject of judicial review in the world in 1985-1986". Allan R. Brewer–Carías.