Journal Article

The logic of justification of judicial review

Michel Troper

in International Journal of Constitutional Law

Published on behalf of The New York University School of Law

Volume 1, issue 1, pages 99-121
Published in print January 2003 | ISSN: 1474-2640
Published online January 2003 | e-ISSN: 1474-2659 | DOI: http://dx.doi.org/10.1093/icon/1.1.99
The logic of justification of judicial review

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This article does not attempt to provide a justification for judicial review of legislation, but rather provides a critical analysis of existing justifications. All theories of justification must reconcile two propositions: that courts partake in the final formulation of legislation and that they nonetheless implement the fundamental principles embodied in the political will of the people. On the one hand, courts must safeguard the supremacy of the constitution as positive law; on the other, they must not inhibit democracy. None of the existing justifications is fully convincing, either because they are too difficult to reconcile with democracy or, more surprising, because they divide the sovereign into two and superimpose a hierarchy on the resulting halves.

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Subjects: Constitutional and Administrative Law ; UK Politics

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