The Success<sup>1</sup> of Judicial Review and Democracy

Martin Shapiro

in On Law, Politics, and Judicialization

Published in print August 2002 | ISBN: 9780199256488
Published online November 2003 | e-ISBN: 9780191600234 | DOI:
The Success1 of Judicial Review and Democracy

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This is the first of two papers that explore the politics of constitutional review – the power of a court or other organ of government to review the constitutionality of public acts, including legislation, and to void those acts as unlawful when they are found to be in conflict with the constitutional law. The paper is a composite of portions of two articles: The Success of Judicial Review, published in 1999, and The European Court of Justice: Of Institutions and Democracy, published in 1998. Based largely on American experience, Shapiro argues that constitutional judicial review is most likely to be successful (1) as a solution to an acute commitment problem, (2) when a constitutional court is serving politically and economically powerful interests, or (3) when it has served such interests in the past and uses the legitimacy accumulated earlier to move on to the service of the less powerful. He maintains that there are both historical and a priori reasons to believe that federalism review has the best chance of success, while the success of human rights review would appear to be more problematic, at least when it is not a follow-on to long-established judicial service to the politically advantaged. The different sections of the paper look at: the causal hypotheses that have been advanced for the process of constitutional judicial review in various European countries, the United States, Canada, and Australia (the federalism-English hypothesis; the division of powers hypothesis; the rights hypothesis); the situation in post-Leninist states; constitutional courts; courts as institutions; courts of law; case-by-case decision-making; legal epistemic communities and the strength of constitutional courts; the division of powers and rights; and democracy and judicial institutions.

Keywords: Australia; Canada; constitutional courts; constitutional judicial review; courts as institutions; courts of law; decision-making; democracy; division of powers; division of rights; Europe; federalism review; human rights review; judicial institutions; Judicial Review; post-Leninist states; success; United States

Chapter.  15634 words. 

Subjects: Comparative Politics

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