judicial review assignment

• Games & Quizzes
• History & Society
• Science & Tech
• Biographies
• Animals & Nature
• Geography & Travel
• Arts & Culture
• On This Day
• One Good Fact
• New Articles
• Lifestyles & Social Issues
• Philosophy & Religion
• Politics, Law & Government
• World History
• Health & Medicine
• Browse Biographies
• Birds, Reptiles & Other Vertebrates
• Bugs, Mollusks & Other Invertebrates
• Environment
• Fossils & Geologic Time
• Entertainment & Pop Culture
• Sports & Recreation
• Visual Arts
• Demystified
• Image Galleries
• Infographics
• Top Questions
• Britannica Kids
• Saving Earth
• Space Next 50
• Student Center

• What is the significance of judicial activism in the United States?

judicial review

Our editors will review what you’ve submitted and determine whether to revise the article.

• Business LibreTexts - The Scope of Judicial Review
• National Paralegal College - Judicial Review

Recent News

judicial review , power of the courts of a country to examine the actions of the legislative, executive, and administrative arms of the government and to determine whether such actions are consistent with the constitution . Actions judged inconsistent are declared unconstitutional and, therefore, null and void. The institution of judicial review in this sense depends upon the existence of a written constitution.

The conventional usage of the term judicial review could be more accurately described as “ constitutional review,” because there also exists a long practice of judicial review of the actions of administrative agencies that require neither that courts have the power to declare those actions unconstitutional nor that the country have a written constitution. Such “administrative review” assesses the allegedly questionable actions of administrators against standards of reasonableness and abuse of discretion. When courts determine challenged administrative actions to be unreasonable or to involve abuses of discretion, those actions are declared null and void, as are actions that are judged inconsistent with constitutional requirements when courts exercise judicial review in the conventional or constitutional sense.

Whether or not a court has the power to declare the acts of government agencies unconstitutional, it can achieve the same effect by exercising “indirect” judicial review. In such cases the court pronounces that a challenged rule or action could not have been intended by the legislature because it is inconsistent with some other laws or established legal principles.

Constitutional judicial review is usually considered to have begun with the assertion by John Marshall , fourth chief justice of the United States (1801–35), in Marbury v. Madison (1803), that the Supreme Court of the United States had the power to invalidate legislation enacted by Congress . There was, however, no express warrant for Marshall’s assertion of the power of judicial review in the actual text of the Constitution of the United States ; its success rested ultimately on the Supreme Court’s own ruling, plus the absence of effective political challenge to it.

Constitutional judicial review exists in several forms. In countries that follow U.S. practice (e.g., Kenya and New Zealand), judicial review can be exercised only in concrete cases or controversies and only after the fact—i.e., only laws that are in effect or actions that have already occurred can be found to be unconstitutional, and then only when they involve a specific dispute between litigants. In France judicial review must take place in the abstract (i.e., in the absence of an actual case or controversy) and before promulgation (i.e., before a challenged law has taken effect). In other countries (e.g., Austria , Germany, South Korea , and Spain) courts can exercise judicial review only after a law has taken effect, though they can do so either in the abstract or in concrete cases. Systems of constitutional judicial review also differ in the extent to which they allow courts to exercise it. For example, in the United States all courts have the power to entertain claims of unconstitutionality, but in some countries (e.g., France, Germany, New Zealand , and South Africa) only specialized constitutional courts can hear such claims.

A number of the constitutions drafted in Europe and Asia after World War II incorporated judicial review in various forms. For example, in France, where the Cour de Cassation (the highest court of criminal and civil appeal) has no power of judicial review, a constitutional council (Conseil Constitutionnel) of mixed judicial-legislative character was established; Germany, Italy, and South Korea created special constitutional courts; and India, Japan, and Pakistan set up supreme courts to exercise judicial review in the manner generally used in the United States and in the British Commonwealth .

After World War II many countries felt strong pressure to adopt judicial review, a result of the influence of U.S. constitutional ideas—particularly the idea that a system of constitutional checks and balances is an essential element of democratic government . Some observers concluded that the concentration of government power in the executive , substantially unchecked by other agencies of government, contributed to the rise of totalitarian regimes in Germany and Japan in the era between World War I and World War II. Although judicial review had been relatively uncommon before World War II, by the early 21st century more than 100 countries had specifically incorporated judicial review into their constitutions. (This number does not include the United States, whose constitution still includes no mention of the practice.)

judicial review

Primary tabs.

Judicial  review is the idea, fundamental to the U.S. system of government, that the actions of the executive and legislative branches of government are subject to review and possible invalidation by the  judiciary . Judicial review allows the  Supreme Court  to take an active role in ensuring that the other branches of government abide by the  Constitution . 

The text of the Constitution does not contain a specific provision for the power of judicial review. Rather, the power to declare laws unconstitutional has been deemed an implied power, derived from Article III and Article VI of the  U.S. Constitution . Judicial review of the government was established in the landmark decision of  Marbury v. Madison , the first Supreme Court decision to strike down the act of Congress as unconstitutional, with the famous line from Chief Justice John Marshall: "It is emphatically the duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret the rule. If two laws conflict with each other, the Court must decide on the operation of each." 

While this case has served as the bedrock for judicial review ever since, courts nevertheless must be careful not to violate the Separation of Powers doctrine when engaging in judicial review. While of course it is the duty of the judiciary to interpret the law and decide which laws violate the Constitution, judges and justices understand that they must not usurp the legislative duty to create the law. While this consideration is often implicit, many judges and justices explicitly rely on it to guide their decision and craft their opinion . This principle is also often at the forefront of many important decisions in administrative law , where judicial officials must carefully strike the right balance between assessing the validity of executive agency actions without deciding what the law is for themselves. 

[Last updated in June of 2023 by the Wex Definitions Team ]

• ACADEMIC TOPICS
• legal education and writing
• THE LEGAL PROCESS
• judicial administration
• legal practice/ethics
• constitutional law
• courts and procedure
• legal education and practice
• wex definitions

In order to continue enjoying our site, we ask that you confirm your identity as a human. Thank you very much for your cooperation.

• Search Menu
• Sign in through your institution
• Advance articles
• Author Guidelines
• Submission Site
• Open Access
• About International Journal of Constitutional Law
• Editorial Board
• Advertising and Corporate Services
• Journals Career Network
• Self-Archiving Policy
• Dispatch Dates
• Journals on Oxford Academic
• Books on Oxford Academic

Article Contents

1. genesis—in the beginning . . ., 2. retrospective—judicial review and public law, 3. prospective, 4. the third wave: backlash, dialectical move, and/or radical rapture, 5. conclusion—the tragedy of judicial review in the contemporary world.

• < Previous

Judicial review in the contemporary world—Retrospective and prospective

• Article contents
• Figures & tables
• Supplementary Data

Doreen Lustig, J H H Weiler, Judicial review in the contemporary world—Retrospective and prospective, International Journal of Constitutional Law , Volume 16, Issue 2, April 2018, Pages 315–372, https://doi.org/10.1093/icon/moy057

• Permissions Icon Permissions

Our purpose in this Foreword article is to revisit, update, and theoretically revise Mauro Cappelletti’s path-breaking work Judicial Review in the Contemporary World. Our main cartographical device, in homage to Cappelletti, is the wave metaphor. We map three sequential and overlapping worldwide, global waves of judicial review within a constitutional order. The first wave is the series of “constitutional revolutions” within national legal orders. The second wave is the emergence of international law as the source of the higher law which courts use in their exercise of their power of judicial review. The third wave is a response and reaction to the first and second waves: one dimension of the third wave is the attempt of domestic courts to make up for the rule of law, democratic and identitarian lacunae in transnational governance (voice). Another dimension—exit—is the set of instances in which courts (and states) seek to exit the first and/or the second wave. The interplay between the waves and their dialectical features constitute the explanatory framework we offer in this article. By highlighting the dialectical relations within and between waves we hope to challenge a dominant narrative on constitutionalization processes as progressive and evolutionary.

In the early 1970s, in his classic study, Judicial Review in the Contemporary World , Mauro Cappelletti mapped the spread of judicial review-centered constitutionalism across the world showing the beginning of its tenacious spread across the globe alongside and as part of the spread of democracy in the post-World War II era. 1 Despite its brevity (in the English-language version) it was a work of great erudition and exemplary comparative command. It had a “prophetic” character in the double sense of this word: empirically, it predicated that judicial review, at that point an exception in the public law map of the world, was conquering the democratic world, indeed, becoming part of democratic ontology—what it is to be a democracy. Normatively, this was in Cappelletti’s vision an unqualified public good. It was a vision which combined a double faith.

(i) The faith in a “higher law” binding even democratic legislatures, the principal content of which were norms protecting individual rights and liberties against tyrannies, even tyrannies of democratic majorities.

(ii) The faith in courts, constitutional or general, supreme or regular, as the most efficient guarantee for the effectiveness and enforcement of such higher law. Judicial review became a hallmark of the very notion of the rule of law.

Whatever one might think of Cappelletti’s linear vision, especially problematic in its normative dimension, empirically, for the most part, one version or another of this basically simple and compelling model has not only continued its spread across the globe but has become not merely orthodox—but doxa. 2 It is hard to find a constitution drafted in the last half century that has not adopted some variant of this model.

The underlying philosophy is well encapsulated in the European Court of Justice (ECJ) decision in Les Verts , echoing the words of Walter Hallstein: “[T]he European Economic Community is a Community based on the rule of law, inasmuch as neither the Member States nor its institutions can avoid a review of the question whether the measures adopted by them are in conformity with the basic constitutional charter, the Treaty.” 3

A democracy without some form of judicial review is considered deficient. This has certainly been the case in Europe with hardly any exception. And although the spread of judicial review of administrative law predates and does not track the same historicity of judicial review of legislation, the nexus between the two, and their cross-fertil ization, has become evident. The ECJ, tersely and compellingly, defined a central aspect of the very rule of law as requiring any legal act affecting the status of any legal actor as being potentially subject to review by a court. And whereas judicial review of an administration once obsessed with issues of intra and ultra vires and a weak form of rationality as criteria for substantive review, today both versions have placed proportionality as the central tool and characteristic of review.

This development has been subject to a rich literature—of a social science nature (explaining its causes)—and has remained a staple of normative public law theory of all stripes. Even modern debates such as constitutional pluralism 4 are driven by, and receive their edge from, the existence of overlapping and conflicting constitutional orders as well as the fact that these conflicting constitutions are “protected” by courts that determine the writ of the land.

The great innovation and achievement of Cappelletti was to move away from the particularistic and local examination of constitutionalism and its discontents in any given system, an examination with us at least since the Federalist Papers and Marbury v. Madison , and to move back, take a distance, and present an overall global picture. It was an exercise valuable in and of itself. It was an exercise that helped not only relativize but also render humble some of the fierce local debates when this or that country, through constitutional amendment or judicial evolution, adopted a form of constitutional judicial review. If everyone is doing it, why should I get hot under the collar when we do it?

Last but not least it introduced a measure of calm realism into the normative assessment of the basic model. Despite recurring eruptions, here and there, now and again, driven by local conditions, the view has set in and hardened that not everyone can be wrong, and that when all is said and done, democracy is enhanced, not diminished, by the basic model.

Cappelletti’s almost naïve and religious-like faith in judicial review not only as “the way of the future” but as the contemporary evangelical “good news,” has largely been vindicated at least in the empirical sense—how else to explain, beyond the specificities of each locale, the universal spread of such?

Yet, even if we were to focus on Europe alone, this linear picture is far more complex. For one, quite apart from the different models of judicial review in the world of public law adopted in different states, the advent of judicial review, and its appeal to courts, has developed, indeed exploded, beyond the level of the nation state whether federal or unitary. The world has seen a veritable outburst in the evolution of legal regimes and law production among states and beyond the state in a plethora of international regimes, regional and global, bilateral and multilateral, with a concomitant growth in judicial organs responsible for its enforcement. International law itself has expanded, both coalesced and fragmented, but the engagement of the judiciary, national and transnational, has never been as prominent as it is today.

The prevailing foundational ethos of the international legal order has long been conceived as a modicum of order and justice among sovereign states aggressively pursuing their national interest. The spread of judicial review added new layers to this ethos, not least the recognition that the future well-being of humankind would be to accept and construct a communitarian ethos in which the collective interest of the international community above the level of the state, and the individual and regions below should be subject of concern and, at times, even given precedence.

International law was no longer dominated by static treaties negotiated by states, often ratified by their parliaments, and then sedately constituting the rules of the road for their principal subjects, the state. It had become a bewildering matrix of hundreds of regional and international organizations, functional and identitarian, with a massive legal output, “constitutional,” legislative and regulatory, poorly coordinated, and often contradictory. Put differently, the international and transnational levels ceased to be just the arena of coordination and negotiation of conflicting interest but an arena of governance, where myriad functions hitherto exercised by the state, notably in the administrative sphere, were transferred to regional, transnational, and global levels.

This new type of interaction necessitated new fora for dispute settlement bodies (such as courts and tribunals) among states (in the mode of the old international legal order). In addition, it gave impetus to a new rationale for such courts and tribunals: ensuring compliance (and not mere dispute settlement), not least to avoid free riding in multilateral systems and, even more profoundly, extending the aforementioned rationale of the European Court of Justice, ensuring the rule of law at whatever level governance took place.

Consequently, a similar growth emerged, measured in the hundreds and thousands (if one counts the advent of bilateral investment treaties) of courts and tribunals of different jurisdiction, competence, and powers, but all rooted in the conviction that courts and judicial review, of this stripe or another, were as indispensable to the rule of international law as they were to the rule of state-based law—indeed the frontiers between the two becoming increasingly blurred as a result of these two processes.

The world Cappelletti described was in a way Newtonian: large objects (constitutions, constitutional and/or supreme courts) moving at a slow speed at projected trajectories, with an occasional comet, or neutrino, disturbing the comparativist magisterium. The academic craftsman at the center was a constitutional comparatist. Our world is Einsteinian. Large and small objects moving at heightened speed, with little apparent order, attracted and repelled simultaneously, clashing, dissolving, fusing, and splitting with the academic craftsman being a broadly defined public law national/transnationalist.

Our purpose here is to revisit, update, and theoretically revise the Cappelletti construct. The first purpose in our approach is cartographical, mapping a public law world that is a whole lot more complex.

Our key cartographical device, in homage to Cappelletti’s other great oeuvre, “Access to Justice,” 5 will be the metaphor of waves—which allows both a temporal and spatial representation. We will map three, at times sequential at times overlapping, waves which in our view describe well both the European development as well as that of the contemporary world. 6

The first wave is the horizontal spread of judicial review (or the more robust willingness of courts to use already extant mechanisms) among state legal orders. The principal feature of the first wave is the emergence within states of judicial mechanisms of constitutional review of state action including democratically approved legislation. The second wave is the emergence of transnational orders of higher law—in Europe the most notable, but surely not the only one, being the European Convention of Human Rights (ECHR) and the European Union (EU). The submission of states to international tribunals in the process of dispute settlement is hardly novel and hardly part of the universe of judicial review. What is novel in the second wave is the submission of states to judicial review not in a context of international dispute settlement, as well as the materia of the review—internal acts of the state within its jurisdiction—something that typically was outside the purview of international adjudication. But even more important in the physiognomy of the second wave was the growing use of domestic courts of the international norms as a higher law within national constitutional orders. Thus, in our view, there can be no doubt of its centrality to the seascape of judicial review.

The third wave has two principal facets. In part it displays the emergence of national courts as an instance of control and judicial review of transnational and international governance and adjudication; in part it gives expression to a new identitarian seam in constitutional discourse. Both facets raise complex normative issues for the legal order.

Our claim is not only that this cartography provides an organizing principle and more meaningful description for the exploding phenomenon but that through an understanding of the interaction of the waves one is provided with a richer explanatory apparatus for judicial review in the contemporary world.

What we call the first and second waves have been the staple of constitutional law theory for decades and our contribution will be mostly synthetic. It is a narrative with which most readers will be familiar though we hope there is some value to our systematization. Identifying the emergence of the third wave (or perhaps, at this point in time, a mere swell) and analyzing its genesis, contours, and significance will, we hope, constitute a meaningful contribution to the extant history, historiography, and theory of judicial review in the contemporary world. In a nutshell, we argue that the third wave is a reaction to the two other waves. Put differently, we show how the challenges posed by domestic constitutionalism and transnational constitutionalism taken together are provoking a correction and even backlash reflected in the third wave. We further argue that the third wave or the backlash could be conceived as the result of a tension between domestic (first wave) and transnational (second wave) constitutionalism which classically have been conceived as complementary.

Following is a short “road map” which should help the reader navigate through this somewhat complex narrative.

In Section 2 of this article we briefly resume, empirically, the trajectory of the first two waves. We then offer a summary of the causalities and rationales explaining these historical developments with particular emphasis on the interaction between the waves.

Section 3 begins with a description and analysis of possible objections and reactions—legal, political, and social—to the first two waves. This is important to our thesis which argues that the third wave is dialectically reactive to the first and second waves.

In Section 4, we then explore the contours of the third wave. One dimension of the third wave, reverting to Hirschman’s ever fresh typology, the voice , is the attempt of domestic courts to make up for the rule of law, democratic and identitarian lacunae in transnational governance and adjudication, as well as perhaps to sustain their constitutional supremacy and check the power of transnational governance regimes. Another dimension— exit —is the set of instances in which courts (and states) seek to exit the first and/or the second wave. We will not analyze the severe undermining of domestic constitutional courts and judicial review in Hungary, Poland, Venezuela, and Turkey or the exit from global governance regimes in cases such as South Africa and the International Criminal Court (ICC) or the UK and Brexit. These radical exit instances must inform and influence judicial decision-making. However, we wish to concentrate on the exit option as it is exercised by domestic constitutional and supreme courts (not against such courts). The exit we are addressing relates to instances in which courts directly challenge, defy, or modify transnational international lawmaking. We wish to explore the contexts in which they do so and trace their possible rationale.

The explanations we offer here are not the only or even the most important explanations to the current “backlash” situation. We hope to make the more modest contribution of complementing the regular story of the rise of populism, nationalism, and authoritarianism with the role played by legal institutions in these processes. We concede that these explanations hardly amount to a hard-wired social science explanation, but we hope that together with the broader framework we offer they could provide a helpful way to grasp significant features in this multilayered process.

Our thesis is primarily concerned with constitutional judicial review, but the boundaries of the “constitutional” are oftentimes fuzzy. There is, as noted, allegedly very limited causal relation between the rise of administrative judicial review and constitutional judicial review. However, for the judges who apply the apparatus of judicial review over the acts of the legislature there are important analogies with their previously entrenched practice of administrative judicial review. In both instances they hope to constrain and check the state apparatus in the name of the rule of law and increasingly to the advantage of disempowered individuals. Likewise, national judicial review within various international or transnational frameworks (second wave judicial review) isn’t always a pure exercise of “constitutional” judicial review: there is no clear source we may identify as an “international constitution,” nor is the practice itself an attempt to nullify an international or national “legislation” for violating a constitutional standard. However, second wave judicial review isn’t merely based on administrative law rationales of ultra vires , reasonableness, or “margin of appreciation.” Rather, it is based on the presumption of hierarchy between international norms as normatively superior and thus a basis upon which one exercises judicial review over the practices, decisions, and legislative acts of states. Thus, second wave judicial review presents a combination of both constitutional judicial review (since it draws its normative rationale from the notion of hierarchically superior international norms) and administrative judicial review (since it isn’t strictly applied to assess the constitutionality of legislative acts but rather to check and scrutinize acts of administrative bodies as well). 7 With this type of caveats we feel justified in using the label “constitutional.”

2.1. The first wave—The spread of judicial review

The first wave, a veritable tsunami, is conceptually most frequently traced back to the Marbury v. Madison (1803) moment in American constitutional history even though it originates in much earlier precedents. 8 During the nineteenth century other jurisdictions endorsed judicial review outside the United States, especially in Latin America 9 but also in Europe 10 with limited success. Nevertheless, these earlier endorsements had little to no practical significance. Despite the importance of Marbury v. Madison , it would take another century or so for the institution of judicial review to expand outside the mostly American boundaries and become a global phenomenon.

The familiar story of judicial review in the twentieth century is typically described as an evolutionary story, a series of “constitutional revolutions” within national legal orders, the two historical turning points of which are the end of World War II and the end of the Cold War. 11 This familiar narrative often tends to neglect other periods of the twentieth century of significant constitutional activity, such as the interwar period, during which judicial review flourished, at least as an ideal, in Europe 12 alongside important innovations in that direction in other jurisdictions. 13 A few states in Latin America such as Mexico, Brazil, and Cuba experienced important constitutional shifts during this period albeit with limited practical implications. 14 Iraq, Turkey, China, and the Philippines enacted constitutions that included provisions on judicial review during that same period. 15 The French debate of the early twentieth century, especially toward 1925, over the endorsement of an American-style model of judicial review is a case in point alongside the endorsement of judicial review in article 102 of the Weimar Constitution. 16 These two examples did not yield a tradition of judicial review. 17

Judicial review in the period before World War I was designed according to the decentralized American model in which each court has the authority to strike a law as unconstitutional. After World War I, the Austrian Constitutional Court (1920–1933) was designed according to the Kelsenian model. 18 According to the centralized Kelsenian model, judicial review could only be exercised by a constitutional court, according to a special procedure designed for that purpose. 19 Kelsen’s model gained prominence in the interwar period as it was introduced, albeit unsuccessfully, to Czechoslovakia and Spain. 20

The classic narrative points to 1945 as the key turning point. Prior to World War II, the model of parliamentary supremacy was the dominant constitutional model. 21 According to the common narrative, it was the experience of the war and totalitarian regimes which led people to lose their faith in the legislature and in unconstrained parliaments. This loss of faith paved the way to the endorsement of judicial review as a balancing and checking mechanism on the power of elected officials. This transition included deep ideological changes (toward greater consensus over constitutional norms), which, in turn, led to structural changes (constitutional hierarchy made possible through the institution of judicial review). Indeed, the ideological basis for the exercise of judicial review remained ingrained in the American tradition; the American victory in the war and its involvement in the rehabilitation of Europe had their share in injecting American values and ideas into other countries. 22

Nevertheless, the institutional setting states eventually endorsed differed from its American counterpart in favor of the Kelsenian, centralized, model. Human rights became a central feature in the introduction of new constitutions in this process. Judicial review was introduced in Axis Powers, Germany (1949), 23 Italy (1948), 24 and Japan (1947). 25 The Constitutional Court of 1929 was reinstated in Austria with a new constitution in 1945. 26 The centralized model was further endorsed in Cyprus (1960), Turkey (1961), and Yugoslavia (1963). 27 Another important juncture in this process occurred in the 1970s. States like Spain (1978), Portugal (1982), and Greece (1975) became democracies and adopted a model of judicial review. 28 In France, the conseil constitutionnel didn’t use its authority to exercise judicial review (since 1958) until 1971. 29 Some consider Belgium to be part of this juncture as well. 30 Outside Europe, processes of decolonization and other factors paved the way to important constitutional processes such as the Indian National Charter of Liberties (1950). In the late 1950s the Indian Supreme Court expanded the scope of rights protection. 31 Other courts, operating in far less stable environments, had a balancing influence on ruling elites in their jurisdictions. 32

The fall of the Berlin wall in 1989 forms the second stroke of the first wave. At the heart of this process was an immense transition of constitutional democratization to Eastern Europe. 33 The end of the communist era led the newly constituted democracy to endorse constitutions based on the Kelsenian model. 34 Poland (adopted judicial review through the 1985 legislation), 35 Hungary (a constitutional court was established in 1989), 36 Slovakia (1991), 37 the Czech Republic (1993), 38 Lithuania (1992), 39 Estonia (a decentralized model, 1993), 40 Bulgaria (the constitutional court began to operate in 1991), 41 Romania (the constitutional court was established in 1991), 42 and the Ukraine are central examples. 43 Russia is a far more nuanced example. 44 Another central arena of constitutional changes in this period is East Asia with dramatic changes in Indonesia, Thailand, South Korea, Taiwan, and Mongolia from the 1980s and onward. 45 South Africa is an important and influential example as well (1996). 46

Indeed, the dates during which constitutions are adopted are not necessarily the most reliable signifiers for genuine constitutional processes. These are complicated processes with different degrees of stability across jurisdictions. 47 It is nonetheless difficult to reject the general trend toward the greater use of judicial review as a clear trend of the second half of the twentieth century. 48 There is also an undeniable tendency among scholars to celebrate this process—as a steady march to a better world. The main scholarly debate isn’t about whether this process occurred and if it is a positive development but rather why and how it occurred and whether it points to convergence between legal systems or greater plurality and convergence. 49 For our discussion here it is important to reiterate the dialectical dynamic that characterizes this process and challenge its often progressive undertones. We shall discuss some of these developments in our analysis of the third wave. 50

2.2. The second wave—The international and transnational dimension

The second wave tracks a gradual process of the growth of international law and institutions in the contemporary world. This process paralleled the first wave, gaining traction toward the end of the nineteenth century and more profoundly in the interwar period, but here, too, the aftermath of World War II and the period that followed the Cold War are two prominent landmarks. While traditional international law based itself on bilateral agreements and narrow functional objectives, the second half of the twentieth century saw increasingly the emergence of a far more ambitious ethos. The International Labor Organization (ILO) and the League of Nations were early precursors putting forth a more robust conception of an international community. The establishment of the United Nations (UN), the World Bank, the General Agreement on Tariffs and Trade (GATT), and the European Court of Human Rights in the aftermath of the World War II, and even more through the introduction of the human rights covenants in the mid-1960s, gradually gave rise to cosmopolitan visions that proposed an alternative to the statist vision of the international collection of states through the notion of the international community of persons. 51 This redefinition made both more compelling and more palatable the notion that international judicial review is more than juridical dispute settlement among states and could become judicial enforcement of international norms within states .

The second wave, which has a variety of “prehistoric” ripples but which gains huge momentum in the same post-World War II period, 52 is thus the emergence of international law generally, but, more important, discrete international treaty regimes (such as the ECHR, the corresponding Inter-American system, the Geneva conventions, etc.) and even more important, international organizations such as the EU as the source of the higher law which state courts and international tribunals use in their exercise of their power of judicial review.

Second wave judicial review takes place at two levels. At the international level, the acts and actions of states may come up for scrutiny before “grand” international tribunals such as the World Court, the ECHR, the Inter-American Court of Human Rights, the World Trade Organization (WTO) panels and Appellate Body, the International Tribunal for the Law of the Sea (ITLOS), the ICC, and others. It is a stretch to call these processes dispute settlement. They are, de facto and/or de jure, a phenomenon of judicial review by transnational and international adjudicatory bodies.

With one exception, which we shall shortly address, the number of cases in which a state finds itself before an international tribunal is not huge. It’s enough to look at the rather limited caseload when compared to their national counterparts (even the European Court of Justice is no exception here if we look at the number of direct actions against a member state rather than preliminary rulings). The legal impact instead is in their norm-setting function and the feeding of such norms into national jurisprudence. The jurisprudence of international courts, even if quantitatively limited, shapes international norms and thus has a spillover effect on the international and national legal systems. Yet their influence on the daily administration of justice and the fate of individuals remains rather marginal with the notable exception of the EU. Even the impact of the ECHR and the Inter-American Court is more normative than in the actual administration of individual justice.

At this international level, the most striking phenomenon of international tribunals’ involvement in judicial review of state action—legislative and administrative—may be found in the investment arbitration universe 53 —a phenomenon which has grown exponentially from the 1960s onward and comprises thousands of treaties and hundreds of cases brought before international investment tribunals reviewing state acts. 54 One should not be distracted by the notion of “ investment ” tribunals. The subject matter of these disputes do not concern only expropriation. At the center of many is the social and regulatory state affecting the environment, water supplies, the interdiction of noxious materials—in other words socially sensitive and intensive cases. Nevertheless, the world of investment tribunals is only indirectly related to the second wave. And investment tribunals do exercise de facto judicial review over public policies of states; their decisions diminish the local public space and local perceptions of the public interest. It would be hard to explain the very significant current pushback against investor state dispute settlement (ISDS) if this were not so. 55 To some extent the proceedings before investment arbitration tribunals mirror the rationale for judicial review: the individual private actor is the powerful actor that enjoys the protection of its home state through the vehicle of the bilateral investment treaty (BIT) while the host state may find itself in a disempowered position. 56 There is also an entire universe of regional trade agreements—around 500 in the entire world—which cover a lot more than trade ranging from the bilateral to the multilateral and also providing, at times, various models of compulsory judicial review (North American Free Trade Agreement, or NAFTA) and feeding a huge legislative and regulatory output to the international and domestic legal spaces.

But far more interesting in the second wave and contrary to superficial impressions, key actors—the heroes in the eyes of some, villains in the eyes of others—are domestic courts. The importance of domestic courts arose as more and more jurisdictions were willing to use international law as a source of binding legal duties to be invoked by individuals. 57 It is not only their ubiquity and accessibility as part of domestic legal systems but, even more important, 58 the much sharper teeth they give to international obligations because of their enhanced compliance pull within the states within which they operate.

Of course, in some monist states international norms were in principle binding, but as Eyal Benvenisti demonstrated, for a long time domestic courts were adept in eschewing such. 59 The essence of the second wave was the acceptance of international legal norms as hierarchically superior and thus the basis for judicial review by national courts. 60

Human rights jurisprudence is an important legal field to demonstrate such second wave judicial review. Jurisprudence of national and international human rights is frequently complementary and compatible, facilitating their use by both national and international courts. 61 Constitutional courts may refer to international norms as a basis for their judicial review through interpretation even if such norms weren’t fully entrenched in the domestic legal system and international tribunals reach into domestic law as a source for their hermeneutics. In other contexts, such reference to the international norm as defined by international courts is required by the architecture of the relationship between the national and international judiciaries. The relationship between European national courts and the ECJ is a case in point. 62

It follows from this analysis that we disagree with the view that considers international tribunals as the key players in the second wave 63 and regard national courts as just as important and influential judicial bodies. Eyal Benvenisti demonstrated how national courts, in a variety of contexts, have come around to use international law as a basis to establish state obligations to individuals. 64 The accessibility of national courts empowers their influence when compared with that of international tribunals. Moreover, they are the most effective enforcement mechanisms of international law, which positions them as superior to international judicial bodies. And, of course, there are a variety of power parameters for these developments. To give but one example, Karen Alter has brilliantly shown how within the EU universe lower domestic courts espoused with relish this role as a means of self-empowerment within the national judicial hierarchy. 65

Finally, for us, the phenomena described as global constitutionalism, constitutional pluralism, and global administrative space are part of the second wave in the global expansion of judicial review and not an ontologically new wave at all. When looked at closely, for us the essence of global constitutionalism is mostly about the use of international norms as yet another source of higher law within states—in other words, the intrinsic expansion of the phenomena which are part of the second wave, indeed part of its definition and ontology. The second wave in its original form and as treated in the literature for many decades concerned the use of norms deriving from international treaties, negotiated by states and very often ratified by national parliaments as the source of normativity. However, the more recent empirically hugely significant source of such normativity is not specific treaty provisions but the product of what at times was called international and transnational governance, global or international administrative law, enacted by international and domestic civil servants giving rise to global administrative law (GAL). This phenomenon of GAL and its reception in domestic law gives rise to a whole new set of social, political, and normative issues equally problematic when national or domestic courts use these as a source for judicial review, but also when they refrain from using them as a source for judicial review. Still, though the content and challenges of the second wave were quite different in the 1950–1970s and the 1980–2000s, they remain in our view part of the same universe. One simply gets wet in different ways.

2.3. First and second waves: Rationale(s) and explanation(s)

(a) rationales(s).

The rise of the first and second waves is an intriguing historical phenomenon. As the following analysis suggests, legal scholars, historians, social scientists, and philosophers attempted to provide different rationales for their emergence.

The common rationale or narrative for the rise of first wave judicial review is the catastrophe thesis associated with the lessons of World War II that transformed the constitutional order in Germany (1949), Italy (1948), and Japan (1947) and the transition from the catastrophe of dictatorship in Spain (1978) and Portugal (1982), and, later in Latin America as well, of course, as a transition from Communist regimes and an embrace of democracy in Eastern Europe. 66 Judicial review was meant to remedy, check, and constrain the legislature from using its power against minorities and in violation of individual rights. 67 John Ferejohn and Pasquale Pasquino, to give but one example, explain how the failure of both the legislature and the judiciary paved the way to the centralized model of judicial review in Germany and Italy. The centralized model positioned constitutional courts as independent of both the legislature (authorized to invalidate legislation) and the judiciary (separate from the non-constitutional judicial system). 68 As noted by Stephen Gardbaum:

The obvious and catastrophic failure of the legislative supremacy model of constitutionalism to prevent totalitarian takeovers, and the sheer scale of human rights violations before and during World War II, meant that, almost without exception, when the occasion arose for a country to make a fresh start and enact a new constitution, the essentials of the polar opposite American model were adopted . . . country after country abandoned legislative supremacy and switched to an entrenched, supreme law bill of rights that was judicially (or quasi judicially) enforced. 69

Indeed, Germany and Italy served as important forerunners of what Loraine E. Weinrib termed the “postwar paradigm.” 70 In this postwar paradigm courts are the “special guardians of foundational constitutional principles, including the rule of law, the separation of powers, the democratic function, and the specific rights that the constitution guarantees,” but, despite this broad mandate, they do not “encroach upon political prerogatives, but restrain[] . . . [their] elected bodies to their electoral mandate,” whose limits are set in the constitution. 71

In 1980 John Hart Ely published Democracy and Distrust and put forth a revised and more contemporary theory of judicial review which did not need as its rationale the existence of dictatorships or catastrophe. He captured its meaning as a means to correct democratic representation failures in protecting minority rights against the menace of majorities: “ . . . [W]e came to recognize that the existing constitutional devices for protecting minorities were simply not sufficient. No finite list of entitlements can possibly cover all the ways majorities can tyrannize minorities, and the informal and more formal mechanisms of pluralism cannot always be counted on either. . . . The existing theory of representation had to be extended so as to ensure not simply that the representative would not sever his interests from those of a majority of his constituency but also that he would not sever a majority coalition ’ s interests from those of various minorities. ” 72 Thus, “ . . . at least in some situations judicial intervention becomes appropriate when the existing processes of representation seem inadequately fitted to the representation of minority interests, even minority interests that are not voteless . . . . ” 73 “ . . . [C]ourts, as experts on process and (more importantly) as political outsiders, can sensibly claim to be better qualified and situated to perform than political officials. ” 74 We believe that in some form or another the Ely thesis underlies many current regimes of judicial review within functioning democracies.

The histories of the totalitarian state epitomized most clearly the case of majorities which unreasonably threaten minorities ’ rights. But the problems embedded in a powerful state that uses its authority to undermine individual rights was already central to the development of administrative judicial review against bureaucracies. Thus, a key rationale for the adoption of judicial review in both administrative and constitutional law revolves around the need to constrain the extensive authorities of the state through the protection of rights in order to remedy the imbalanced power relations between the state and the individual. As noted in Ran Hirschl ’ s comparative study, constitutional review often “ conceptualizes the purpose of rights as protecting the private sphere (human and economic) from interference by the ‘ collective ’ (often understood as the state and its regulatory institutions). National high courts in these countries thus tend to regard state regulation as a threat to human liberty and equality, and more so than the potentially oppressive and exploitative social relations and institutions of the so-called ‘ private ’ sector. ” 75

Ideological explanations that follow the catastrophe thesis tend to romanticize the origins of judicial review. It is commonly conceived as an evolutionary, progressive development. The history of an almost universal adoption of judicial review in the day after the war is conceived a victory of the preferred constitutional design. As noted by Tom Ginsburg: “No doubt the actual performance of review varied, depending on local political circumstances, but the successful courts were emulated and became an ideal to which others aspired.” 76 Such progressive accounts may be nuanced, complemented, or even challenged by additional less romantic explanations for the first wave: hegemonic, functionalist, and strategic.

A hegemonic perspective would focus on the role and influence of American policymakers and thinkers on the constitutionalization processes in post-war Europe. 77 Functionalist accounts attribute the rise of judicial review to the fragmented structure of governance, especially in federal systems like the United States. 78 Some explanations explore how judicial review facilitates greater coherence and efficiency. 79 Others demonstrate how judicial review could serve as a potential conflict-solving device in divided societies: “In divided societies, because of a history of conflict or a lack of a shared existence, the constitution is often the principal vehicle for the forging of a common political identity, which is, in turn, necessary to make that constitutional regime work.” 80

The rise of the regulatory state and the related rise in asymmetric information problems provide another functionalist explanation for the introduction of judicial review. According to this set of explanations, judicial review is meant to expose how legislation influences the lives of those subjected to it and check the problematic performance of the bureaucratic state. 81 Following a similar functionalist line, judicial review could enhance credible commitments. 82 David Law demonstrated the benefit of judicial review for states who wish to attract high skilled labor: “Respect for human rights . . . can help states to develop and attract a talented workforce in the same manner that respect for property rights helps states to attract and accumulate capital. . . . Favorable constitutional policies—such as the right to practice one’s religion or to speak one’s mind without fear of punishment, or the freedom to enjoy the latest popular film or novel— constitute a noneconomic incentive for workers to stay or move.” 83

Strategic explanations disaggregate the state and examine the specific political circumstances in which judicial review emerges. 84 Authors such as Ran Hirschl and Tom Ginsburg explained the adoption of judicial review as a strategic choice of elites seeking to sustain their influence and interests in light of their foreseeable decline. 85 Such strategic explanations are particularly prevalent in the context of constitutional transitions from authoritarianism to democracy where the establishment of constitutional courts is meant to curtail the undemocratic power of future majorities or to hedge against one-party consolidation of power. 86 Such strategic outlook demonstrates how judicial review could be used by organized minorities to sustain and restore their influence in domestic politics. 87 The attacks by governments on constitutional courts and judiciaries that we discuss below call for a reflection on the strategic explanation of judicial review that moves beyond the moment in which judicial review is adopted. Elites may have endorsed judicial review to lock in their position or policy preferences in the foundational constitutional moments but, as third wave developments demonstrate, may abandon it altogether at a later stage.

A common rationale for second wave judicial review draws on cosmopolitan sensibilities of human rights and is primarily an ideational account. Governments promote human rights internationally because they are consistent with their own values. 88 International judiciaries that operate in the human rights context are easily conceived in cosmopolitan terms as agents who operate on behalf of the global community. Beyond the cosmopolitan rationale, realists explain second wave judicial review as an exercise of hegemonic power, a vehicle used by great powers to impose their views on other nations. 89 Institutionalist accounts demonstrate how the existence of international judicial review or the commitment to international norms in domestic systems may serve to “lock in” domestic actors to adhere to international standards at a particular point in time against future political alternatives (reducing domestic political uncertainty) and as a means of restricting government discretion. 90 A related account shows how governments tie the hands of future governments to enhance the credibility of current domestic policies and institutions. 91 Considering the relationship between the first and the second wave, Andrew Moravczik demonstrated how Germany and Italy adopted systems of constitutional judicial review domestically and internationally (the ECHR) “because of a strong desire to bolster the democratic order. . . .” 92 Marco Duranti similarly emphasized domestic politics and their influence on the ECHR but challenged the emphasis of Moravczik and Simpson on governments and state actors to include the preeminent role of transnational NGOs (non-governmental organizations) and personalities who were hitherto neglected to complicate and enrich the history of the origins of the ECHR. Duranti conceded that anti-totalitarianism was a central concern for European unity movements but emphasized that totalitarian also meant policies such as planning, nationalization, and limitation of free speech and explored how post-war domestic politics, British free-market conservatism, and French social conservatism, decisively shaped the ECHR at the moment of its invention. Similarly, Samuel Moyn, though focusing on different protagonists, demonstrated how post-war European integration, especially the creation of a human rights regime, was a profoundly conservative project. 93

Beth Simmons’s explanation for the second wave considered commitment to international human rights institutions as a means to mobilize political groups or enhance the cause of political oppositions. 94 The mobilizing potential of international human rights commitments may be fulfilled through litigation in international judicial settings or national settings. Eyal Benvenisti offered an alternative interpretation to national courts’ exercise of second wave judicial review as an exercise of collective action against governments’ capture by interest groups and as a means to sustain democracy and the authority of courts within the democratic state. 95

(b) Explanation(s): Adding the horizontal and vertical interplay to existing explanations

We now must move from rationale to causal historical explanation. The rationale often has an intrinsic connection to the causal: it happened because actors were persuaded by its rationale. But there is no total overlap between the two. Indeed, in many countries with only a weak or no grip on democracy, one finds, at least in appearance, forms of judicial review.

We should state at the outset that a big part of the explanation for the emergence of judicial review is rooted in local specific circumstances and therefore the global “waves” could be considered a mere connecting of local dots.

But the very fact that there will be discrete local circumstances and explanations also accentuates the reality of a global phenomenon which transcends the local: judicial review has become ubiquitous in Europe, most countries in the Americas, the Antipodeans, and not a few in Asia and Africa. So, the global phenomenon, the empirical reality of the first and second waves, becomes part of the explanation itself.

As mentioned above, for Cappelletti this development was normatively linear. It signified progress. And if at first there was a huge debate (and at times contestation) concerning the democratic credentials of an institution (judicial review) which allowed a few, often non-democratically elected judges, to set aside majoritarian democratic legislation, it is true that in most jurisdictions, with occasional eruptions, the counter-majoritarian dilemma has been sidelined in a variety of ways so that it no longer looms large, at least as a destabilizing force. The normative issues have evolved—no longer a strident conflict between legislators and judges, but from a global and comparative perspective more delicate issues of, say, the democratic credentials of the international norm and its impact on national identities. Furthermore, these processes are enmeshed in complicated relations which are not necessarily linear but more dialogic and plural. 96

While considering the different explanations, attention must be given to a horizontal axis which addresses the ways in which national judicial systems influence one another and a vertical axis which addresses the influence between waves: how processes in one wave influence another wave. Horizontally, some accounts move from top-down intentional processes of constitutionalization toward cross-border diffusion of ideas 97 or trans-judicial dialogue. 98 Sociologists pointed to such processes of global convergence as deriving from learning from other countries through rational processes or less informed cognitive biases. 99 Some states may opt to endorse judicial review to become members of a prestigious class or as part of acculturation processes. 100 States are sometimes coerced to endorse such models by other states or institutions. A notable set of examples are postcolonial regimes or constitutional orders that were established after occupation. 101 Market incentives may play a role as well. Empirical studies show that these explanations are valid but only for some states some of the time. 102 Similarly, empirical work seems to suggest that horizontal influences are most effective in the context of the content of norms but much less as explanations to the very endorsement of the model of judicial review. 103

Some cases, thus, demonstrate clearer convergence trends than others, but it is hard to challenge the existence of a shared sensibility in favor of judicial review that accompanied its spread, a sense of judicial review as a predominant zeitgeist. Such sensibilities probably derive from the involvement of agents of change that are also repeat players in the constitutionalization processes of the period. It is hard to conceive the adoption of the Kelsenian model of constitutional courts merely as a result of internal political processes, though such processes are probably important to determine when and under what conditions such adoption becomes feasible for a particular polity.

Our notion of horizontal and vertical interplay highlights the potential influence of other jurisdictions—international or domestic—on internal constitutional processes. It is clear that there has to be considerable traction as an explanation for horizontal influences in the sociological literature on diffusion, acculturation, and judicial borrowing. We merely suggest to complement them by emphasizing the importance of the interplay between horizontal and vertical processes that operate dynamically and dialectically. Our relational model operates on the same two axes: a horizontal axis within each wave whereby developments in one jurisdiction may impact and also help better understand the meaning and significance of developments in other jurisdictions within each wave; and a vertical axis in which developments in one wave may impact developments in other waves.

In regard to the horizontal effect within the first wave, it is, for example, incongruent to imagine that with the fall of the Berlin wall and the widespread adoption of constitutions with robust judicial review there was not some mutual impact from one to the other. Be that as it may for the cartographer, for us, the observer of this phenomenon, it is a very different map if we look at the Europe of, say, the 1950s with a handful of countries in which judicial review is practiced and the Europe of the 2000s in which there is only a handful of countries in which it is not practiced at least in some form. It would be inconceivable in the Europe of the 1990s, to stick with this example, for new democratic constitutions to be drafted without including judicial review. There are too many similarities to the basic Kelsenian model adopted by Italy and Germany in the inception of the first wave to imagine that this is entirely coincidental. The same is true for the global vision as a whole. In some cases the impact is explicit and in other cases it is a matter of Geist, the spirit of the times. When one comes to the process of constitution adoption in many countries, it is again inconceivable that in very terms of the statecraft of constitution-writing the default position would not have been the inclusion of first wave judicial review—which of course could be rejected at the moment of political negotiation and final adoption.

Horizontal relations between constitutional democracies further exist in the later stages, after the adoption of judicial review as the preferred model. In the last decades we have witnessed an increasing reference to comparative constitutional decisions by national courts sometimes titled “trans-judicial dialogue,” a form of legal transplantation 104 or “migration” of constitutional ideas. 105 Vicky Jackson, as one of the leading voices in this field, described this process in her book: “An increasingly transnational constitutional discourse has developed in recent years. . . . Increasingly constitutional courts refer to the decisions and reasoning of other constitutional courts—not always to agree but rather to refine and sharpen understandings, in contemporary contexts, of such basic concepts as human dignity, equality, and freedom.” 106

Such dialogues potentially empower the institutions of the courts. Eyal Benvenisti and George Downs demonstrated how judicial borrowing could be conceived as a collective action between courts that operates to encourage courts in different jurisdictions to exercise their power of judicial review. 107 Some scholars celebrate the great potential of transnational networks between courts, 108 though others raise doubts over their existence or its benefits. 109

In regard to the second wave, the horizontal effect is even more self-evident if we invoke, for example, the universe of investment arbitration and regional trade agreements; each investment agreement is a bilateral agreement between two states, but as we look at the substantive content and institutional mechanisms it looks as if they came out of the same computer and the same printer with a few cuts and pastes. What one state does, another state copies with few changes and follows a similar pattern. If we look likewise at the universe of regional trade agreements we find a similar “copy-cut” phenomenon. 110 In both instances, investment and regional agreements, the default position is the inclusion of a third-party dispute resolution procedure which in investment includes binding investor-state judicial decision-making and in regional agreements a somewhat softer option of the above. Systemic borrowing of the model of judicial review is one impact. Another impact, “the mature impact,” concerns the borrowing of substantive aspects of judicial review decisions from other countries.

Horizontal interactions could also shape and inform the attitude of domestic courts to international norms as a basis for judicial review. Anthea Roberts’s framework of comparative international law addresses the plurality of national attitudes to the interpretation of international law and the ways in which this very plurality facilitates a rich dialogue on the content and meaning of international norms. 111 This dialogue legitimizes the very exercise of judicial review based on international legal norms in each of the jurisdictions it is applied and signaling to other courts that they will not remain mavericks if they dare to do so. 112

There is a further, more deep-seated explanation for the mutual impact of courts in different jurisdictions. When a domestic court incorporates into its internal judicial review jurisprudence international norms it runs the risk of putting its own country at a disadvantage vis-à-vis other jurisdictions in which similar incorporation does not take place. Thus, the more courts take the leap the easier it becomes for others to follow suit. This is particularly true in relation to economic norms (as distinct from human rights norms) where the international rule directly impacts relations between states.

There’s also a vertical relationship between the second and first wave whereby the use of international norms may open the way for classical state-driven judicial review and vice versa. 113 The UK first accepted a fairly robust form of judicial review in the context of the EU and that at least indirectly paved the way to the eventual introduction of the Bill of Rights Acts. 114 Similar stories may be related in one form or another in regard to many courts and jurisdictions in the European Union, whereby it was the discipline and habituation of applying the higher law of the EU which developed into a habit of greater hospitality toward constitutional judicial review. 115 In Italy, which was accustomed to the judicial review found in its own constitution but less friendly to a robust form of applying international norms, the movement has been in the other direction. Andre Nollkaemper gives a most elegant and eloquent depiction of the process: “The picture that emerges is one in which international law, on the one hand, increasingly reaches down to national courts, and on the other hand, many states and their courts increasingly reach up to allow international law to guide their judicial practices.” 116

We would argue that the Nollkaemper thesis applies not only to the content of judicial review but to its very existence as a robust state institution.

This story of relentless “progress” in the spread of judicial review and the expansion of the “constitutional” to embrace the international has not been without challenges and critiques and these challenges and critiques inform the emergence of what we see as a third wave in the seascape of judicial review in the contemporary world.

3.1. The counter-majoritarian critique

As is well known, judicial review at the state level came with the habitual challenges frequent in the 1960s and 1970s in a variety of jurisdictions and which questioned the very legitimacy of judicial review of legislation as part of the so-called counter-majoritarian dilemma. 117 We do not wish to rehearse here the lines of this debate. We think it raised and continues to raise important issues for democracy. We will content ourselves by simply stating that empirically judicial review has been adopted in various jurisdictions despite such critiques and was, at times, subjected to a variety of techniques (such as various mechanisms of parliamentary override) to enhance its legitimacy, sporadic eruptions notwithstanding.

3.2. The culture of individualism—The republican deficit

Judicial review is intimately connected with and constitutes a culture of legally protected rights, fundamental and otherwise, that militates against individual duty and responsibility. In normal rights discourse the “I,” the subject, is the bearer of the rights. Notionally, this of course is true. But it does not correspond to the reality of how we actually experience rights discourse in action. That reality is “triangular” with a violator (typically a public authority), the victim of the violation who, when it comes to fundamental human rights (as distinct, say, from consumer rights), is an outsider of sorts, and the “I” or the “We” who are typically observers—reading about it in the press, or through some other media.

Against that reality it is easy to observe that the culture of human rights demands very little of its principal subjects/objects. In fact, for the most part it demands little more than professing a belief in them. For this faith, one does not even have to turn up in church once a week. The responsibility for their violation is typically not individuals but public authority, and the responsibility for addressing such violation falls on other public authorities, such as courts. Our role is typically to say “tsk, tsk” as we read about it during breakfast. What is a fundamental social more becomes a pretty cheap private virtue. And there is, in fact, not much more one can do than protest at different level of intensity. It is indeed the case that the violation of human rights is mostly at the hands of public authorities. The point is that there is something significant about the fact that the value placed higher than any other in liberal thinking—the sanctity of fundamental human rights—is precisely the one that is structured on the responsibilization of public authorities and one that demands so little of those who, in good faith, profess such. The way human rights play out in the broader matrix of political culture resembles the critique offered in relation to solidarity—it is constitutive of the culture of agency which itself is not conducive to the virtues and sensibilities necessary for real community and solidarity.

Second, in the passage from social more to private virtue, frequently the vocabulary of human rights is lost in translation. The inviolability of human dignity becomes the inviolability of the I, of the ego. As Ran Hirschl’s systematic analysis of Canada, Israel, and New Zealand constitutional rights jurisprudence revealed, there is a clear common tendency in constitutional jurisprudence “to adopt a narrow conception of rights, emphasizing Lockean individualism and the dyadic and anti-statist aspects of constitutional rights. . . .” 118

The culture of rights, want it or not, undermines somewhat the counterculture of responsibility and duty. We vastly underplay the language of responsibility and duty at the individual level compared to the language of rights and liberties. The individual has rights; society and public authorities have duties and responsibility. It is easy to see how not only the prosperity of the market but its very internal set of values and ethos of competition and material efficiency coupled with the culture of rights contribute to that matrix of personal materialism, self-centeredness, Sartre-style ennui, and narcissism in a society which genuinely and laudably values liberty and human rights. Robin West defined this problem as alienation. “[Rights] alienate us from the dreaded other from whom they claim to protect us, from our communities, and from a recognition of even the possibility of unmediated human connection.” 119

Finally, this culture of rights is oblivious and at times even hostile to the attachments people have and the importance they give to their national context, cultural specificity, and social cohesion.

The “republican” element is also fairly self-evident and is rooted in two principal considerations. First, the discipline of majoritarian democracy requires a demos—however defined—in order for the minority to accept the legitimacy of majoritarian decision-making. A majority which coerces a minority not within the framework of a demos is perceived as foreign domination. The demos in democracy is not lexical but ontological. Second, the well-functioning of a democracy, through elections, public service, and the like, depends on both a sense of ownership by its citizens and a modicum of personal responsibility and commitment toward the well-being of the polity. A polity in which everyone merely pays their taxes and does not break the law will not, could not, be a functioning democracy in the republican sense. Thus to the extent that a culture of individualism and atomization breaks down responsive and responsible sociality, the foundations of democracy itself are undermined.

If there is any merit in this analysis it would explain how the culture of judicial review, so intimately connected to the culture of rights, becomes an essential part, and at times target, of a contemporary discourse which laments the breakdown of communitarianism, of collective responsibility, and of human solidarity which has become more vocal and prominent especially at times of economic crisis and other growing social and national cleavages.

3.3. Flattening of identity

We use “identity” in a loose sense to describe a judicial sensibility which is concerned, while ensuring respect for fundamental rights and other similar constitutional norms or the basic habits and practices of accountable and representative democratic governance, with other additional “identitarian” aspects of the polity, for which typically liberal theory which informs the substantive norms of judicial review has been far less sensitive. There are several facets to this sensibility. Our analysis of the horizontal and vertical interaction—cross-fertilization—between the second and third waves points to another feature to which we have not so far given major attention. The outcome of this cross-fertilization is the creation of a common “extra-national” as well as transnational value asset. We often celebrate that common core of values under the concept of constitutional patriotism. The large picture is, or appears to be (and here appearances carry considerable social and political weight), that constitutional patriotism—that is, taking that normative asset as the subject of loyalty and commitment—at the same time diminishes the sense of cultural and political specificity. If it is that asset which is meant to be the focal point of my love of and loyalty to patria, why and how would my love of my patria be different for my love for any other patria? The patriotism in question is noble, indispensable, and a mark of our civilization, but it leaves somewhat impoverished wide and important swaths of sociality.

If we were, somewhat crudely (again), to reduce the substantive normative core of the constitutional revolution to its essentials it would be, as argued convincingly by Menachem Mautner, the protection of (individual) liberty and individual dignity and the promotion of, individual autonomy and equality. 120 The international dimension of such is also forcefully engaged in defending against the excesses of nationalism. Nobody can protest these noble aspirations and values—but the absence of the social and collective is glaring. The first and second waves contribute, thus, to cultural homogenization as between societies.

Why is this of consequence? From a normative perspective, the concept of human dignity has two facets: the irreducible equality of individuals where no one individual has more intrinsic worth than another is one such facet. But the second facet is the uniqueness of each individual where no one individual is fungible with another. To deny the uniqueness of an individual is as big an assault on his or her dignity as is the devaluation of his or her worth. And, the same is true for collective forms of sociality like national communities. From a psychological perspective, the intrinsic yearning of individuals to give meaning to their very existence oftentimes finds its expression in their belongingness to a collectivity—a nation, for example—which has a unique history, unique cultural identity, and, yes, destiny.

Combine the normative and the psychological and we find root of the strength which identitarian considerations, individual and collective, exert on the human condition for good and for bad. So here, too, it is apparent that to the extent that the phenomenon of judicial review, so ubiquitous, involves an inextricable link between the first and second wave manifestation, and to the extent that, as just argued above, as a result the common asset of values becomes universal rather than national it thus contributes, or at least is perceived to contribute, to an “assault” on national or group identity. It is therefore not surprising that judicial review becomes part of, and even a target, of a political discourse which has brought “identity” to the fore and to which, as we shall see, courts will react.

3.4. Distributive concerns marginalized

Earlier strands of the critique of human rights, mostly feminist and critical racial studies, advocated against their subordinating potential. 121 They exposed the ways in which protecting the liberty or autonomy of individuals against state intervention could facilitate further subordination and exercise of power by the strong against the weak. As noted by Robin West, “while limiting unfair relations in the private realm, rights run the risk of legitimizing the larger unjust world within which those particularized moments of injustice are framed.” 122 Some commentators critically address the correlation between the spread of first and second wave judicial review and the privatization and globalization processes of the late twentieth century. As noted by some, “precisely because the human rights revolution has at its most ambitious dedicated itself to establishing a normative and actual floor for protection, it has failed to respond to—or even allowed for recognizing—neoliberalism’s obliteration of the ceiling on inequality.” 123 Similarly, Latin American constitutional scholars critically describe the redistributive ramifications of constitutionalization processes. Helena Alviar Garcia, for example, criticizes the protection of property rights by constitutional regimes and concludes that “in Colombia, redistribution is slowed down because of the coexistence of different definitions of property; the concentration of public resources for economic development plans that privilege a liberal classical view of growth, property and distribution, as well as existing conflicts between access to land. In the case of Bolivia, redistribution is slowed down by the path dependence of neoliberal policies along with the contradictions between the need for individual title and the more socialist definition of property.” 124 Javier Couso similarly described that despite their great zeal, constitutional courts in Latin America cannot achieve social and economic transformation. 125 Constitutional processes in Eastern and Central Europe were similarly geared toward private rights and market liberalization.

Concerns over the redistributive consequences of the second wave constitutionalization processes shift our attention to global inequalities between north and south and are often cast in imperialist terms. 126 TWAIL (Third World Approaches to International Law) critiques emphasize how the Eurocentric construction of the human rights movement doesn’t challenge, and even enhances, global inequality. As noted by Mutua, “[s]uch a political project not only blithely continues historical injuries but fails to come to terms with emerging ones . . . the human rights corpus is simply unable to confront structurally and in a meaningful way the deep-seated imbalances of power and privilege which bedevil our world.” 127 The limited capacity of legal systems to address distributive concerns was brought to the fore in the aftermath of the 2008 economic crisis and the European debt crisis. 128

Inequality and distributive justice have not been central to global governance institutions more broadly. Benedict Kingsbury remarked prophetically toward the end of the 1990s that the rise of global governance regimes would require taking inequality into account much more seriously though it has hitherto failed to do so: “[the] emergent global public policy animated by commitments to markets, civil society, liberal peace, the rule of law untrammeled communication, and trans nationalism . . . takes modest account of equality as a style of politics and as a procedural component of democracy and the rule of law, but it is not clearly committed to the substantive reduction of global inequality . . . if sovereignty were to be displaced as a foundational normative concept for the structure of international law, an alternative means to manage inequality would become essential. No such alternative is presently on offer.” 129

3.5. Democratic deficit: Governance without government

The developments anchored by the first wave facilitated a realization that legal orders with more or less robust forms of judicial review were indispensable for the democratic polity. Judicial review that was once an exception has become the default norm and its incorporation introduced a deep ontological transformation of the meaning of democracy as constitutional democracy. The interface between democracy and the second wave is both more delicate and interesting. Internationalization of constitutional norms which evolved as part of the second wave was in large measure, we would argue, driven by the same liberal democratic impetus. The importance of repositioning the individual much more at the center of public life, as part and parcel of the very definition of a democratic liberal state, and the realization of the inequality of power between individual and public authority were part not only of the justification but of the willingness of states to take upon themselves the international “constitutional” commitments in these spheres.

However, the process of international governance described above produces a new version of the counter-majoritarian challenge. Second wave judicial review is either exercised by international judiciaries or based on international norms that derive their authority from governance mechanisms without real accountable government and without the governed—that is, the polity. At the international level, we do not have the branches of government or the institutions of government we are accustomed to from statal settings. This is trite but crucial. When there is governance it should be legitimated democratically. But democracy presumes demos and presumes the existence of government. Whatever democratic model one may adopt it will always have the elements of accountability, representation, and some deliberation. There is always a presumption that all notions of representation, accountability, and deliberation can be grafted on to the classical institutions of government. Likewise, whatever justification one gives to the democratic discipline of majority rule, it always presumes that majority and minority are situated within a polity the definition of which is shared by most of its subjects. The international system form of governance without government and without demos means there is no purchase, no handle whereby we can graft democracy as we understand it from statal settings on to the international arena.

Moreover, the usual fallback position that this legitimacy may be acquired through democratic control of foreign policy at the state level loses its persuasive power here even more than in relation to international community values. Meso- and micro-international regulation is hardly the stuff of effective democratic control by state institutions. The fox we were chasing in the traditional model was the executive branch—our state government. In the universe of transnational regulation, even governments are no longer in control.

Democratic theories also creak badly, be they liberal or neo-liberal, consociational or even Schumpeterian elite models when attempting to apply them to these forms of global governance. Who is principal, who is agent? Who are the stakeholders? We may define demos and demoi in different ways. But there is no convincing account of democracy without demos. Demos is an ontological requirement of democracy. There is no demos underlying international governance, but it is not even easy to conceptualize what that demos would be like? Network theory and constructivism are helpful in describing the form of international governance and explaining how they work. But if anything they aggravate the normative and legitimacy dilemmas rather than solve them.

The “democracy” issue for international law is no longer whether there is a right to democracy—which would, for example, justify denial of recognition, or even intervention to restore a denial of democracy through a coup. Instead, the issue is how in the face of an international community which “appropriates” and defines common material and spiritual assets as well as administrative functions of the state, can we establish mechanisms which, in the vocabulary of normative political theory, would legitimate such government. If we do not find an answer, the huge gains attained in the systemic evolution of lawmaking and law enforcement may be normatively and even politically nullified.

Delegation of decision-making and authority to global institutions raises other concerns such as the shrinking public space for deliberation in favor of informal negotiations and expert-based regulatory decision-making processes. Globalization and fragmentation could further undermine the checks and balances within democracies. There is a tendency of stronger states to use informal channels or soft law mechanisms that aren’t processed and deliberated by legislatures to promote their policies without being exposed to public scrutiny. 130

The democracy deficit spills over to issues of the rule of law. To the extent that international law is not legitimated democratically the compliance pull of international institutions, both empirically and normatively, would be weakened. In addition, many international adjudicatory bodies including the International Court of Justice (ICJ) act as courts of first and last instance. Their decision is final and not open to appeal—contrary to a widespread norm of justice which expects judicial decisions to be appealable.

Once again, if there is merit in this analysis, it is easy to see how it feeds, and feeds into, a social and political discourse of “taking back control” so potent in a variety of manifestations in contemporary politics.

While its contours are yet unclear we believe that the previous challenges are import ant elements in paving the way to a set of developments we define as the third wave . Put differently, the third wave is, inter alia, a response and a reaction to the challenges posed by the first and second waves. We are taking some license in characterizing the empirical evidence as a veritable wave. It is perhaps more of a swell. And we are aware of the deep political developments that inform and shape the processes we explore under the third wave such as Brexit, Trump, Marine Le Pen, etc. . . . , but our focus here isn’t to explore these developments directly but merely to explore the ways they are channeled and mitigated through judicial proceedings and the exercise of judicial review or their altogether rejection.

The move we make here is of a double nature. In the first instance we want to present a sample of cases which in our view illustrate lines of national constitutional jurisprudence which can be understood as reactive to the challenges of the first two waves of judicial review outlined above. In particular we have chosen cases that illustrate first a sensitivity to the democratic and rule of law deficits which exist in international and transnational governance and second to the identitarian dilemma. As noted, empirically, it is still early days to speak of a veritable “wave,” but we do believe that these are not atypical but harbingers of a new sensitivity.

Our move, as before, is not only cartographic. We want to offer the “reactive contours” of the third wave as a framing device and a hypothesis—a prism to be used in understanding constitutional law cases around the world so as, with the passage of time and the work of scholars much better situated to identify and analyze such, to be able to ascertain whether the swell in fact is turning or has turned to a veritable wave or has subsided.

The normative stakes are both high and complex. On the one hand, the challenges we articulated are real, and, thus, one should welcome national judicial interventions that offer corrections to the deficits of democracy, economic inequality, and identity/solidarity in the current seascape. This type of development could in this manner be conceived as empowering important voices which have been weakened or silenced in the discourse of judicial review by national and transnational tribunals. The virtue of closing democratic or rule of law deficits is obvious, but even identity is not a dirty word if it is seen as a social feature which corresponds to positive dignitarian yearnings of the human condition and equally positive social features of individual responsibility and collective solidarity. Voice should also be understood as dialogical—not defiance or rejection by engagement and correction. So, as we shall see, for example, in the famous Kadi case, the ECJ seems at least to open the door to withdrawing its intervention once the international system puts in place its own mechanism for effective judicial review of Security Council Resolutions directly affecting individuals. We will see similar dialogical moves in some UK cases and others.

On the other hand, voice can slide into exit , exit from the benefits of multilateralism, transnational governance which is essential to tackle problems not amenable to national solutions, from a veritable commitment to individual human rights with the pretext of collective goods, from legitimate identitarian concerns and patriotism as a discipline of love and solidarity to a spirit and ethos of xenophobia and atavism. Courts, in the name of democracy, the rule of law, and constitutional identity, can become part of this destructive exit discourse. As noted earlier, we are less concerned in this context to analyze veritable “exit à la Brexit” though such movements and tendencies undoubtedly have an impact on judicial decision-making and courts can act as breaks or catalysts to such. The exit option which primarily concerns us is when national courts defy transnational normativity with differing rationales and vehemence. As we shall see, even in such cases there might be instances—the equivalent to civil disobedience—where an exit decision may not be condemned out and out from a normative perspective.

4.1. The rule of law manifestation of the third wave

One dimension of the third wave is to be understood in a national judicial reaction to two interconnected phenomena described above: first, the claim of international law to represent a higher law within national jurisdiction while at the same time boasting extremely weak democratic credentials. The problem is as old as international law itself. But it has become acute as part of second wave judicial review coupled with the exponential growth in international and transnational norms claiming such status. Second, if judicial review as part of its essence and rationale is to assert control of legislators in the name of a higher law, what is to be the higher law of international law itself, and who is to be its enforcer?

This problem and the need for such a “Higher (higher) Law” (that is, above international law itself) was recognized by international law itself with the introduction in the 1960s of the concept of jus cogens —to much fanfare. But the content of jus cogens is so minimalist that it could hardly provide a sufficiently thick substantive content for effective judicial review of international norms generally and global administrative norms more specifically. The challenge therefore, if this gap in the rule of law were to be closed, would not be simply to find institutional settings—courts and tribunals primarily that could undertake this task— but to develop a normative content which would at a minimum respond to what is expected by judicial review at the domestic level. After all, if what was traditionally regulated by national legislation or administrative law has now migrated to the international sphere, why should this be accompanied by a substantive diminution in the substantive criteria of its constitutionality? Nota bene : this, thus, is not the older phenomenon of domestic courts simply refusing the authority and supremacy of international legal norms. It is a recoiling from the international legal order in which international governance is subject to weak forms of judicial review, and thus, when domestic courts step in, they have recourse to the constitutional resources at their disposal.

As a consequence, one of the most interesting developments of and in international constitutionalism in recent years has been the scrutiny of the conduct and norm-setting of international organizations and international regimes themselves by judicial bodies. The most obvious, systematic, and consistent example is, of course, the European Union—even if it is a commonplace complaint that it exercises more stringent control of member state compliance with EU norms than it does with the institutions of the EU itself.

In other international fora it is, as yet, a chaotic, uncoordinated, and spontaneous phenomenon led by two principal agents. The proliferation of international tribunals of various overlapping international organizations and regimes has meant that not infrequently the conduct, norm-setting, and even judicial decisions of one international organization are scrutinized by the judicial organs of another. Far more interesting, complex, and challenging—offering both promise and danger—is the “constitutional” scrutiny of the conduct of and norms of international regimes and organizations—including the UN itself—by constitutional and supreme courts of states. Given the paucity of systematic judicial review at the international level it is one of the principal contentions of this article that here again national courts will have to play a major role (not without its problems) and indeed have begun to play such a role. We would therefore dedicate most of our attention to the analysis of national courts.

What interests us here are not only the institutional arrangements but the content and the criteria that have to be applied when these courts and tribunals take upon themselves to guarantee the constitutionality of international norms. In effect, under this evolving system national courts are expected to be able to change hats. In role one, internally, they classically act as the guarantors of the constitutionality of domestic acts of governance whether of legislative or administrative origin. In their second role, they act as a hybrid domestic/international tribunal ensuring that the state complies with its international legal obligations especially when these are of a constitutional nature such as internationally and universally protected human rights. And third, in a practice just in its infancy, they may sometimes be called upon to act in loco parentis , in the absence of an appropriate international jurisdiction, as guarantors of the constitutional propriety of international legislation. The national judge must ensure that he or she is not applying in this case local constitutional standards but universal standards which would be appropriate in the context of the international norm under scrutiny.

The Kadi litigation is a most famous example of this third wave jurisprudence and exemplifies its promise and problems. It raised the classical concern of the tyranny of the majority now cast in global institutional terms and exposed the problem of disregard, hitherto primarily a subject of academic debate, in blunt terms. 131 In the aftermath of 9/11, the UN Security Council (UNSC) enacted UNSC Resolution 1267 and established a “Sanctions Committee” that was authorized to “blacklist” the names of individuals or entities deemed to be associated with terrorist activities. 132 In 2001, the UN Sanctions Committee added the name of Mr. Yasin Kadi to the UN-level lists, an action replicated at the EU level by Regulations 2199/2001 and 2062/2001. Mr. Kadi was subjected to a worldwide asset freeze as a result of his blacklisting by the UNSC without being informed of the reasons of his listing and without opportunity to challenge the measures. 133 Mr. Kadi challenged this measure before European courts. In Kadi I , the European Court of First Instance (CFI) considered that as long as the Security Council measures (and thus the community measures) did not violate jus cogens , they were justified in otherwise interfering with fundamental rights. 134 The CFI decision was overturned by the ECJ ( Kadi II ). The ECJ held that Kadi’s rights of the defense, in particular the right to be heard, were violated and declared the contested regulation annulled:

The contested regulation, insofar as it concerns Mr Kadi, was adopted without furnishing any guarantee enabling him to put his case to the competent authorities, in a situation in which the restriction of his property rights must be regarded as significant, having regard to the general application and actual continuation of the freezing measures affecting him. It must therefore be held that, in the circumstances of the case, the imposition of the restrictive measures laid down by the contested regulation in respect of Mr Kadi, by including him in the list contained in Annex I to that regulation, constitutes an unjustified restriction of his right to property. The plea raised by Mr Kadi that his fundamental right to respect for property has been infringed is therefore well founded. It follows from all the foregoing that the contested regulation, so far as it concerns the appellants, must be annulled. 135

Following the ECJ’s judgment, the European Commission continued to include Mr. Kadi on the list while providing a summary of reasons for its decision. Mr. Kadi contested the European Commission’s decision before the General Court in Kadi III . The Court reiterated the thrust of the Kadi II decision and emphasized that a full review “should extend not only to the apparent merits of the contested measure but also to the evidence and information on which the findings made in the measure are based.” 136 The ECJ further noted that the re-examination procedure within the UN system cannot give rise to “generalised immunity from jurisdiction” within the legal order of the community. Since the current procedure fails to guarantee judicial protection, “the Community judicature must ensure full review.” Several authors considered the ECJ approach reminiscent of the German Constitutional Court rationale in Solange II , namely, limiting its intervention to situations in which adequate judicial protection according to European standards are not guaranteed by the international authority. As noted by Antonios Tzanakopoulos, “The ECJ thus left open the possibility of a reversal of its position along the lines of Solange II: should the UN put in place a procedure offering adequate (if not necessarily equivalent) judicial protection, then the ECJ seems to indicate that it will retreat and defer to internal UN review.” 137 In Kadi IV the CJEU declined to revise the ECJ ruling. Instead, it stated that “European Union measures implementing restrictive measures decided at international level enjoy no immunity from jurisdiction” since the constitutional guarantee in the European Union is based on the rule of law and thus require the availability of “judicial review of the lawfulness of all European Union measures . . . in the light of the fundamental rights guaranteed by the European Union.” 138

The Kadi litigation exposed the serious democratic/rule of law shortcomings of global institutions such as the Security Council: if one cannot challenge the violation of Mr. Kadi’s rights in a legal architecture that conferred superiority to the Security Council according to article 103 of the UN Charter, then the rights for due process and judicial review are severely compromised. Nevertheless, how one should define the relationship between the legal orders to mitigate such shortcomings remains highly contested and the decision of the European Court was not universally welcomed in its reasoning as sharply noted by de Burca and others. 139

Its implications were, however, systemic to the international order as a whole. Answering this question proved pivotal to the law and legitimacy of global governance regimes. As noted by Devika Hovell:

[T]he Kadi litigation was a game-changer. Possessing the capacity to open an EU-sized hole in the sanctions net, the European courts were able to force the Council to engage in a consideration of power-sharing in a way that other bodies could not. In practical terms, the Kadi case was undoubtedly the single most important factor in persuading the Security Council finally to undertake meaningful procedural reform, with the establishment of the Office of the UN Ombudsperson. . . . 140

Indeed, while the ECJ was asked to review the consequences of the sanction regime in its domestic, European, application, it de facto reviewed and scrutinized the Security Council sanction regime, leading to considerable reforms compatible with its normative critique. The legal sources for the exercise of judicial review by the European judiciary were European sources reflecting a rather dualist approach that grants supremacy to European law over international law. 141

One could offer another perspective to the Kadi litigation through the vantage point of our three waves. The role of domestic courts as guarantors of rights through the exercise of judicial review is the raison d’être of the first wave. The superiority of international norms lies at the core of second wave developments. These two waves collide in light of the challenges they pose, at the third wave stage, when international legal institutions exercise authority without accountability. The Kadi jurisprudence sustained the Ely rationale of first wave judicial review: protecting individual rights against excessive power of public authorities. But courts may also be fighting for the democratic system of checks and balances or even for themselves. The global administrative space and growing influence of global regulatory regimes derive from executives’ delegation of authority to international institutions to avoid scrutiny.

And yet, the decision also has a dark side. It privileged the specific constitutional asset of the European Union as the correct criterion for review in some ways rather than, perhaps more appropriately, seeking to fill the rule of law deficit at the international level with criteria reflecting the mores of the international community as a whole. From this perspective, the approach of the Court of First Instance (as it was then) may be seen as more appropriate. In practice, the result could be the same, but the approach of asserting one’s own values above those of the international community in whose name the sanctions were adopted could be seen precisely as the slide from voice to exit. And of course, here too, there are less romantic modes of framing this type of jurisprudence. 142

An intriguing context for a potential slide from voice to exit could be found in the South American context. While the Colombian Constitutional Court regularly reviews national laws for compatibility with the IACtHR jurisprudence, 143 in Venezuela, Bolivia, and Ecuador, the rise of populist governments was followed by denunciation of the American Convention of Human Rights and even removal from the oversight of the Inter-American Court of Human Rights. 144 The Argentinian Fontevechhia saga could be situated somewhat in between. The Argentinian Supreme Court has been engaged in a lengthy controversy with the IACtHR over freedom of expression. Jorge Fontevecchia and Hector D’Amico, the director and editor of an Argentinian magazine, were held civilly liable for a series of publications concerning the unrecognized son of the then president of Argentina, Carlos Saul Menem. The Supreme Court of Argentina held that the publication of these articles violated the president’s right to a private life. 145 The Inter-American Court held otherwise and concluded that the information was already part of the public domain and a matter of public interest and the imposition of liability on the editor and publisher infringed their right to freedom of expression. 146 In light of the Inter-American Court decision, Argentina’s executive branch requested the Supreme Court to comply and revoke its 2001 ruling. In February 2017, the Argentinian Supreme Court published its decision and stated that it declined to do so. While declaring that “it is beyond discussion that the state is, in principle , obliged to comply with decisions by the Inter-American Court pronounced in compulsory proceedings against the state.” However, it further reasoned that the Inter-American Court lacked the authority to order the revocation of a domestic judgment, as doing so exceeded its powers under the American Convention. 147 This, to be noted, is a far more egregious case than Kadi since it represents open defiance of an international tribunal itself and is a reversion to old sovereignist arguments highlighting the Janus-like normativity of third wave jurisprudence.

Kadi is not the only litigation that evoked a clear tension between international bodies and constitutional courts over questions of due process and protection of fundamental rights. The following are two national decisions which challenge decisions of the International Court of Justice acting, if you wish, as instances of appeal to a court which, as noted, is the court of both first and last instance.

On February 3, 2012, the International Court of Justice required Italian courts to extend jurisdictional immunity to Germany also for actions that constitute war crimes and crimes against humanity violating inviolable human rights. Following the ICJ decision, the Italian legislature adopted provisions that were meant to implement the ICJ’s judgment. In the Italian Constitutional Court decision no. 238/2014 the Constitutional Court expressly refrained from questioning the interpretation of the rule of state immunity put forward by the ICJ. Nevertheless, the holding of the court subjected international customary law to constitutional review: “[A]ll laws, acts and norms that have the same legal effects as formal laws (ordinary or constitutional), but came into being through means other than the legislative process—including the aforementioned [customary international] norms—are subject to centralized constitutional review.” 148

The Court then qualified the constitutional status of the provisions in the law providing for the ratification of the Charter of the United Nations and the legislative measure through which Italy had brought itself in line with its international legal obligations under the United Nations Convention on Jurisdictional Immunities of States and Their Property (2004). The Court stated that since international custom is external to the Italian legal order and its application by the government and/or judge is required by the constitution, thus its application “must follow the interpretation given in its original legal order, that is the international legal order.” But this case raises further conflict between the norm of international law that is hierarchically equivalent to the Constitution according to the referral of article 10, paragraph 1 of the Constitution and essential principles of the constitutional order, including principles of protection of fundamental human rights. “In those situations it is up to the national judge, and in particular exclusively to this court, to exercise the constitutional review, in order to preserve the inviolability of fundamental principles of the domestic legal order, or at least to minimize their sacrifice.” 149

Since it is the Constitutional Court’s duty to ensure the respect of the Constitution and its fundamental principles it is its duty to review whether the international norm of immunity of states from the civil jurisdiction of other states is compatible with those principles. The Constitutional Court defined the conflict before it as a clash between effective judicial protections of fundamental rights and international law, as defined by the ICJ. It decided in favor of the fundamental principles of the Constitution: “. . . insofar as the law of immunity from jurisdiction of States conflicts with the aforementioned fundamental principles, it has not entered the Italian legal order and, therefore, does not have an effect therein.” 150

The Italian Constitutional Court sought to exercise a domestic–constitutional check on the central international judicial body and voice its opposition to an international legal norm that undermines the protection of fundamental human rights. Though most of the decision seems to separate between the supremacy of the ICJ in interpreting international law and the supremacy of constitutional courts to protect fundamental rights within the constitutional legal order, it also addresses the potential role its constitutional intervention may play if other domestic courts will join it and together their collective opposition would form a new interpretation of international law.

While the Italian Constitutional Court refrained from exercising direct judicial review over the ICJ decision it did present an alternative interpretation to the international law governing immunity of states that excludes cases of acts classified as war crimes and crimes against humanity, in breach of inviolable human rights. Presenting such an alternative and declaring the custom as interpreted by the Court unconstitutional and even calling other courts to do the same is an attempt to voice opposition against the power of the World Court and offer a framework that constrains and poses a check on its exercise of judicial authority. As expected, the decision drew an avalanche of commentary, mostly negative but with some exceptions. We do not want to wade into this controversy but to note the feature of the case which is of interest to our framework. The Italian Constitutional Court was not making a simple sovereignty argument—a Schmittian power play between the international and the domestic. It was concerned with values—and in this case not simply values of the Italian system. And given that the ICJ is a court of both first and last instance with no meaningful instance of appeal (something inimical to our sense of good administration of justice) the Italian Court placed itself in effect as an instance of appeal. Whether such a move is productive to the administration of justice is open to question, but it is a clear instance of the dialectic relationship between third wave jurisprudence and its predecessors. The Italian legal philosopher Gianluigi Palombella in his work on “interlegality” has provided what is currently one of the most sophisticated attempts to both explain and place this type of decision not as an instance of judicial “rebellion” or “defiance” but as a reflection of jurisprudence in a much more complex world where linear hierarchies have less purchase—indeed a hallmark of third wave judicial review. 151

A more direct attempt to exercise judicial review over the advisory opinion of the ICJ is the Israeli Mara’abe decision on the legality of the wall. 152 Like its Italian counterpart, the Israeli Supreme Court deferred to the ICJ’s legal interpretation of international law (“the opinion of the International Court of Justice is an interpretation of international law, performed by the highest judicial body in international law. . . . The ICJ’s interpretation of international law should be given its full appropriate weight.”) 153 The controversy concerned the factual basis of the case:

The main difference between the two judgments stems primarily from the difference in the factual basis upon which each court made its decision. Once again, the simple truth is proven: the facts lie at the foundation of the law, and the law arises from the facts (ex facto jus oritur). The ICJ drew the factual basis for its opinion from the Secretary-General’s report, his written statement, the Dugard report, and the Zeigler report. The Supreme Court drew the facts from the data brought before it by the Palestinian petitioners on the one hand, and the State on the other. In addition, The Supreme Court received an expert opinion by military experts who requested the opportunity to present their position as amici curie. Despite the fact that the data which each court received regarded the same wall/fence, the difference between each set of data is deep and great. This difference is what ultimately led to the contrary legal conclusions. 154

The Israeli Supreme Court engaged in an open dialogue with the ICJ and highlighted aspects of its decisions it deemed worth revisiting. It is this particular attempt on behalf of a supreme court to voice opposition or an alternative perspective on the application of international law that poses a check on the ICJ exercise of its power. Unlike the Italian Constitutional Court, the Israeli Supreme Court does criticize the ICJ decision-making process directly. Furthermore, the Supreme Court holds that since the factual basis before the two courts is different it isn’t obligated to follow it. 155

Thus, both the Italian and the Israeli Supreme Courts refuse to comply with the ICJ decisions and base their decisions on either principled/normative (the Italian) and procedural/methodological (the Israeli) grounds. Be that as it may, we conceive such judicial opposition with the threat of non-compliance an exercise of exit on behalf of courts. Such instances of exit pose a significant threat to the authority of the ICJ and as such may prove a powerful check on the ICJ once its exercise of authority is conceived incompatible with core principles of domestic constitutional orders. The complex normativity is patent: this dialogue and interplay between the courts hold the menace of undermining an already relatively tamed judicial body and frayed international legal order and yet present an important possibility to hold global actors accountable and constrained by the rule of law. And, of course, the significance of these decisions, negative and positive, goes well beyond the specific instances in a judicial universe which is accustomed to “copycat” jurisprudence.

4.2. Democracy and the majoritarian challenge manifestation of the third wave

The cartography of a first and a second wave describes quite neatly the evolutionary reality of Europe where, sometimes, as in the early 1970s, in cases such as Frontini , Le Ski , and Internationale Handelsgesellschaft , courts explicitly looked to their right and left as they adjusted both their domestic understanding of judicial review and/or their understanding of the relationship of Union law to national law. Likewise, the early swallows of the third wave appeared indeed quite early within the European legal order. Domestic constitutional courts pushed back against the notion of the supremacy of EU law over all provisions of national law. One of the early and most famous episodes in that controversy began with the Solange judgment of the German Bundesverfassungsgericht in 1974:

. . . The Community still lacks a democratically legitimated parliament directly elected by general suffrage which possesses legislative powers and to which the Community organs empowered to legislate are fully responsible on a political level. . . . A long as this legal certainty . . . is not achieved in the course of the further integration of the Community, the reservation derived from Article 24 of the Constitution applies. 156

The Solange saga, reappeared recently in the maverick jurisprudence of some domestic courts but most famously in the jurisprudence of the German Constitutional Court in its concern for the democratic credentials of the European legal order. In a series of cases— Maastricht , Banana Market decision, Lisbon , Mangold-Honeywell , and OMT —the BVerfG addressed the question of national constitutional identity. In the Maastricht decision (1993) the court made clear that as long as the democracy deficit concern is not addressed there are limits to constitutional delegation to the European level. 157 In its Lisbon judgment, the Federal Constitutional Court didn’t attribute the limitations on such delegation to contingent circumstances but held that German authorities “may not delegate too many competences to European institutions, especially not the competence to decide upon their own competence.” 158 Furthermore, the decision in Lisbon forbids the transference of Judicial Kompetenz-Kompetenz —“It is a consequence of the continuing sovereignty of the Member States that in any case in the clear absence of a constitutive order to apply the law, the inapplicability of such a legal instrument to Germany is established by the Federal Constitutional Court.” 159 The Court further emphasized the related conception of the German Constitution which is non-derogable:

It is true that the Basic Law grants the legislature powers to engage in a far-reaching transfer of sovereign powers to the European Union. However, the powers are granted under the condition that the sovereign statehood of a constitutional state is maintained on the basis of an integration programme according to the principle of conferral and respecting the Member States’ constitutional identity, and that at the same time the Member States do not lose their ability to politically and socially shape the living conditions on their own responsibility. 160

The Court based its notion of supremacy of the German constitutional order over the European legal order on democratic principles and the democratic deficit at the EU level: “. . . An increase of integration can be unconstitutional if the level of democratic legitimisation is not commensurate to the extent and the weight of supranational power of rule.” 161 While exploring the elements that render the institutional design of the EU deficient democratically, 162 the Court considered them normatively desirable:

As a representative body of the peoples in a supranational community, which as such is characterised by a limited willingness to unite, it cannot, and need not, as regards its composition, comply with the requirements that arise on the state level from the citizens’ equal political right to vote. As a supranational special body, also the Commission need not extensively fulfil the conditions of a government that is fully accountable either to Parliament or to the majority decision of the electorate because the Commission itself is not obliged to the will of the electorate in a comparable manner. 163

Thus, because the EU’s democratic procedures are inherently deficient (in comparison with those of states) they cannot sustain an aspiration for a sovereign democracy. Participation and transparency cannot substitute elections:

The Treaty of Lisbon does not lead to a new level of development of democracy. The elements of participative democracy, such as the precept of providing, in a suitable manner, the citizens of the Union and “representative” associations with the possibility of making their views heard, as well a the elements of associative and direct democracy, can only have a complementary and not a central function when it comes to legitimising European public authority. 164

States should therefore retain “sufficient space for the political formation of the economic, cultural and social circumstances of life.” This is particularly important to areas which shape “the citizens’ circumstances of life, in particular the private space of their own responsibility and of political and social security, which is protected by the fundamental rights, and to political decisions that particularly depend on previous understanding as regards culture, history and language and which unfold in discourses in the space of a political public that is organised by party politics and Parliament.” 165

The Court further concluded the primacy of German law and the possibility that under exceptional and special and narrow conditions the Federal Constitutional Court would declare European Union law inapplicable in Germany. Curiously, the Court referred to the ECJ decision in Kadi as applying the very same primacy rationale vis-à-vis the international legal order:

The Court of Justice of the European Communities based its decision of 3 September 2008 in the Case of Kadi on a similar view according to which an objection to the claim of validity of a United Nations Security Council Resolution may be expressed citing fundamental legal principles of the Community. The Court of Justice has thus, in a borderline case , placed the assertion of its own identity as a legal community above the commitment that it otherwise respects. Such a legal figure is not only familiar in international legal relations as reference to the ordre public as the boundary of commitment under a treaty; it also corresponds, at any rate if it is used in a constructive manner, to the idea of contexts of political order which are not structured according to a strict hierarchy. 166

The Lisbon judgment thus defined the principle of democracy as inviolable. “The constituent power of the Germans which gave itself the Basic Law wanted to set an insurmountable boundary to any future political development. . . . The Basic Law thus not only assumes sovereign statehood but guarantees it.” 167

Among the many features of this much criticized decision was, in our view, its laudable concern not simply for the constitutional hierarchy of norms (international law is supreme to national law; European Union law is supreme to member state law) but its concerns with the democratic provenance of the international norm. This, in our view, was not an old-style sovereignty argument but a more nuanced approach to the grammar of legitimacy in contemporary life. Also interesting was the clear example of the horizontal cross-fertilization effect (the reference to Kadi ), but most interesting perhaps was the beginning of a more explicit concern for the (constitutional) identity of the polity of which a court is guardian.

4.3. The identity as exit manifestation of the third wave

Resistance of domestic jurisdictions to international norms is, of course, a common phenomenon across time and across jurisdictions as we have just seen. Classically the jurisprudential apparatus and the accompanying vocabulary focused on the notion of sovereignty and a “Schmittian Who has the Final Word” underlying logic. What we are noticing as part of the third wave is the introduction of a new strand of reasoning and justification which uses the vocabulary of “identity.”

The use of identity is typically underspecified, and often gives the impression that it is merely an additional trope—perhaps to give a more palatable patina to the raw, power-based use of sovereignty alone. But it might, at the same time, be an expression of a genuine sensibility. An alternative reading of the Lisbon jurisprudence we addressed earlier as an engagement with questions of democratic deficit would highlight it as an evolution in constitutional thinking toward identity. This new sensibility is found, for example, in the EU treaties which have recently enshrined the “national identity” of the member states as a value to be protected 168 —whereby provisions of the Constitution, typically in the area of human rights, are there not only as in the classic conception to give protection to the individual against collective interest but, at the same time, as representing a cultural and identitarian marker of the collectivity itself which it is the duty of constitutional courts to protect. The salience of national identity as a critical parameter is its prominent insertion into the Treaty of Lisbon. We perceive such as a way of both asserting its importance and appearing as responsive to this third wave manifestation. We cannot overemphasize the significance of this jurisprudential line since it in some ways detaches protection of human rights from its classical liberal moorings (individual versus state/nation/public authority) and reconfigures it, at one and the same time, as an expression of the identity of state and nation producing a complicated tension not easily resolved. The language of constitutional and national identity enables us to posit national conceptions of internationally mandated human rights not as a simple conflict of positive norms but as preserving cultural, social, and political identity. Such reconceptualization of rights serves to justify an alternative voice or in extremis exit of a particularistic manifestation of the international legal and value system.

The manifestation of such will invariably take place in a context in which the domestic jurisdiction is preferring its own conception of fundamental rights to that required (imposed!) by international norms. It is in this sense that we posit this aspect of the third wave as a reaction to the second wave.

At times the manifestations of the shift are to be found in the odd phrase or word—but we do not think these can be dismissed as anecdotal or insignificant. They are the harbingers of a growing new sensibility.

The following illustrates the shift from the classical sovereignist approach to the more contemporary one in which an identitarian layer becomes an integral part of the reasoning.

Our first example draws on the comparative Lisbon jurisprudence we mentioned earlier but highlights its identitarian features. Consider the decision of the Constitutional Tribunal of Poland of May 11, 2005, 169 which affirmed the principle of ultimate supremacy of Polish constitutional law over EU law in an unremarkable decision corresponding to the doctrine of many such courts in Europe. It is the language which is of interest:

1. The accession of Poland to the European Union did not undermine the supremacy of the Constitution over the whole legal order within the field of sovereignty of the Republic of Poland. The norms of the Constitution, being the supreme act which is an expression of the Nation’s will, would not lose their binding force or change their content by the mere fact of an irreconcilable inconsistency between these norms and any Community provision. In such a situation, the autonomous decision as regards the appropriate manner of resolving that inconsistency, including the expediency of a revision of the Constitution, belongs to the Polish constitutional legislator. . . . 29. Marriage, being the union of a man and woman, has acquired a distinct constitutional status within the domestic law of the Republic of Poland, on the basis of Article 18 of the Constitution. Any modification of this status would be possible only by the way of an amendment of the Constitution (according to Article 235 thereof); in no circumstances would it be possible by way of a ratified international agreement.

But compare this with its decision of November 24, 2010, five years later, on the constitutionality of the Treaty of Lisbon. 170 Though the underlying doctrinal position on the relative hierarchy has not changed, the language is nuanced differently.

1.1.2 […] the presumption of constitutionality of the Treaty may only be ruled out after determining that there is no such interpretation of the Treaty and no such interpretation of the Constitution which allow to state the conformity of the provisions of the Treaty to the Constitution. The Constitutional Tribunal may not overlook the context of the effects of its judgment, from the point of view of constitutional values and principles, as well as the consequences of the judgment for the sovereignty of the state and its constitutional identity. 2.1 […] In the view of the Constitutional Tribunal, the sovereignty of the Republic of Poland and its independence—construed as the separateness of Poland’s statehood within its present borders, in the circumstances of the membership in the EU in accordance with the rules specified in the Constitution— mean confirmation of the primacy of the Polish Nation to determine its own fate. The normative manifestation of that principle is the Constitution, and in particular the provisions of the Preamble, Article 2, Article 4, Article 5, Article 8, Article 90, Article 104(2) and Article 126(1), in the light of which the sovereignty of the Republic of Poland is expressed in the inalienable competences of the organs of the state, constituting the constitutional identity of the state . . . . The Constitutional Tribunal shares the view expressed in the doctrine that the competences, under the prohibition of conferral, manifest about a constitutional identity, and thus they reflect the values the Constitution is based on . . . . Therefore, constitutional identity is a concept which determines the scope of “excluding—from the competence to confer competences—the matters which constitute (...) «the heart of the matter», i.e. are fundamental to the basis of the political system of a given state” . . . . Regardless of the difficulties related to setting a detailed catalogue of inalienable competences, the following should be included among the matters under the complete prohibition of conferral: decisions specifying the fundamental principles of the Constitution and decisions concerning the rights of the individual which determine the identity of the state. . . . [Emphasis added; references omitted] 171

In this analysis we take no normative stand. Identity can be used or abused as part of political and constitutional reasoning. But we do claim, as mentioned above, that it resonates with a deep-seated yearning for the uniqueness of the human subject and we located that yearning in the normative territory of human dignity. This turn to identity in the jurisprudence of courts around the world is a display, more or less sincere, reactive, and/or constitutive, of this social and political sensibility. We see similar developments in other jurisdictions. In the Czech Republic one can compare the decision of the Constitutional Court of November 2008 172 with the decision one year later into which, subtly, the vocabulary of identity creeps in. 173

A similar shift from sovereignty to national values is arguably detected when comparing the decision of the Spanish Constitutional Court of December 2004 when examining the defunct Constitution of Europe and its decision ten years later in February 2014 as part of the Melloni saga we shall address below. 174

In the conundrum between exit and voice, courts’ turn to identity in the series of decisions we address here is an attempt to draw a red line that cannot be crossed by their constitutional orders in favor of international norms and decisions. We shall refer to this notion of constitutional red line vis-à-vis the international as identity as exit. This modality of identity as exit is most instructively illustrated in some UK jurisprudence vis-à-vis the European Court of Human Rights. In two landmark ECHR judgments— Hirst v. United Kingdom (No. 2) and Scoppola v. Italy (No. 3) (2012)—the Grand Chamber held that the British ban on convicted prisoners voting is incompatible with article 3 of Protocol 1 to the ECHR. 175 The Supreme Court of the UK in a respectable and persuasive way articulated a doctrine whereby when the decision of the ECHR is based on a misunderstanding of some features of the British legal system it is justified not to follow the Strasbourg decision.

There will, however, be rare occasions where this court has concerns as to whether a decision of the Strasbourg Court sufficiently appreciates or accommodates particular aspects of our domestic process. In such circumstances it is open to this court to decline to follow the Strasbourg decision, giving reasons for adopting this course. This is likely to give the Strasbourg Court the opportunity to reconsider the particular aspect of the decision that is in issue, so that there takes place what may prove to be a valuable dialogue between this court and the Strasbourg Court. 176

But this may be compared with the following:

The court will thus follow Strasbourg jurisprudence if 1) there is a clear and consistent ECtHR case-law on the matter, 2) which is not inconsistent with a fundamental feature of domestic law, and 3) which in its reasoning appropriately takes into account all relevant arguments. 177

We notice here both the principled assertion of the vague “fundamental feature”—in abstract (rather than a specific rule of law) as a reason for rejection, but in the third condition we see shades of the Italian and Israeli Court decisions whereby the UK Supreme Court regards itself as competent to review the adequacy of reasoning of the European Court of Human Rights. The Israeli and Italian decisions exemplify both the democracy manifestation of the third wave and that of identity as exit.

In the fall of 2017 Theresa May’s government reached a compromise according to which fewer than a 100 prisoners with short sentences will be allowed to vote while they are out of prison on a temporary release license. David Lidington, the justice secretary, stated: “We believe these changes address the points raised in the 2005 judgment in a way that respects the clear direction of successive parliaments and the strong views of the British public on prisoner voting. . . .” 178 The prisoners’ rights saga addresses quite squarely questions of democracy and democratic identity (rather than rights), though the main reasoning for objecting to reform in the name of the British “democratic identity” was not conveyed by the judiciary but in parliamentary deliberation and governmental committees. 179

The normative complexity of identity as exit is also evident. Exceptional “fundamental features” can easily slide into wholesale rejection. Lord Hoffman, a former member of the Supreme Court, writing extra-judicially, has this to say:

25. It is a remarkable fact that during the drafting and negotiation of the European Convention . . . no one seems to have drawn attention to this basic flaw in the concept of having an international court of human rights to deal with the concrete application of those rights in different countries.” 36. . . . It cannot be right that the balance we in this country strike between freedom of the press and privacy should be decided by a Slovenian judge saying of a decision of the German Constitutional Court— “I believe that the courts have to some extent and under American influence made a fetish of the freedom of the press. . . . It is time that the pendulum swung back to a different kind of balance between what is private and secluded and what is public and unshielded.”? (citing Judge Zupanyič concurring in Von Hannover v Germany (24 June 2004)). 39. . . . As the case law shows, there is virtually no aspect of our legal system, from land law to social security to torts to consumer contracts, which is not arguably touched at some point by human rights. But we have not surrendered our sovereignty over all these matters. We remain an independent nation with its own legal system, evolved over centuries of constitutional struggle and pragmatic change. I do not suggest belief that the United Kingdom’s legal system is perfect but I do argue that detailed decisions about how it could be improved should be made in London, either by our democratic institutions or by judicial bodies which, like the Supreme Court of the United States, are integral with our own society and respected as such . [Emphasis added] 180

And the final British slide we highlight here to exemplify identity as exit can be found in the Conservative Party Manifesto for the 2015 elections:

The next Conservative Government will scrap the Human Rights Act, and introduce a British Bill of Rights. This will break the formal link between British courts and the European Court of Human Rights, and make our own Supreme Court the ultimate arbiter of human rights matters in the UK. (at 60)

One cannot address the question of identity in constitutional jurisprudence without referring to the decision of the German Constitutional Court in its variation of the Melloni principle. This is a well-known and one of the most explicit examples of invoking “constitutional identity.” In a direct challenge—crossing over from its typical voice posture to a clear selective exit—the German Court effectively defied the European Court of Justice in not respecting the famous European Arrest Warrant and refusing an extradition request to Italy of a defendant who was tried in absentia because, under the Italian system, he would not have the right to an evidentiary hearing in the Italian appeals proceedings. Under German law, this would violate his rights to a minimum of fairness and the so-called principle of guile derived from the Holy of Holies of German constitutionalism, human dignity. 181

What is significant from our perspective is the explicit usage of the as of yet underspecified notion of constitutional identity as a linchpin of the reasoning. Underspecified or otherwise, given the huge prestige and gravitas of the German Constitutional Court, justly earned by the carefully elaborated and meticulous reasoning of its decisions, the notion of identity has come of age and with that patina of legitimacy accentuated by a decision where the German Court has actually bitten and not merely barked. We can expect it to become a staple of constitutional jurisprudence in far-flung jurisdictions. There is an irony here when considering the above-mentioned defiant decision of the Italian Constitutional Court which brought upon it the wrath of most of the German legal establishment. At some deep level, privileging substantive values and a deep identitarian argument (What kind of society are we?) over systemic and procedural constitutional principles (very important and valuable in themselves) the two decisions are very similar. Both demonstrate the complex normative nature of this type of third wave jurisprudence. There is a measure of hypocrisy in roundly condemning one and remaining far quieter in regard to the other.

How a complicated and nuanced conflict between right and right in which voice and dialogue are essential can turn into a more shrill right versus wrong slide to exit can here, too, be found in the words of another former judge (and president of the German Republic).

Roman Herzog and Lüder Gerken, in Stop the European Court of Justice , are reported to have said:

Judicial decision-making in Europe is in deep trouble. The reason is to be found in the European Court of Justice (ECJ), whose justifications for depriving member states of their very own fundamental competences and interfering heavily in their legal systems are becoming increasingly astonishing. In so doing, it has squandered a great deal of the trust it used to enjoy. Hence, it is only logical that the German Federal Constitutional Court recently decided to intervene. Very soon it will have to render a judgement that will be of fundamental importance for the further development of European jurisdiction, since it concerns the question of whether the excessive legal practice of the ECJ should in future once again be subject to stricter controls by the German Federal Constitutional Court, or whether the Federal Constitutional Court should resign once and for all from its watchdog position.” 182

Though their dire prediction at the time they wrote it did not come to be, it has now emerged in the case under discussion. But what we find most telling is the tonality of the message coming from the heart of the legal establishment.

Be this as it may, the ECJ responded to the German challenge in the Aranyosi judgment. 183 The judgment confirmed the significance of the principles of mutual recognition and mutual trust between member states, but clarified that those principles are not absolute and can be overridden “in exceptional cases.” 184 It conveyed greater sensibility to the identity challenge. 185 According to Mathias Hong, the Aranyosi judgment marked a change in tone and posture compared to Melloni. 186 This is a good example of how sometimes a strong defiance, in effect an exit decision, may finally produce dialogue, the novelty being that the notion of identity, constitutional or otherwise, now forms part of the discourse and not simply the parameters of individual human rights and sovereignty.

All elements of this line of jurisprudence are to be found in recent decisions of the Russian Supreme Court. It provides a good example of the inversion effect of the identitarian rationale whereby human rights as identity become a tool to affirm the majority rather than protect the individual. It illustrates the Russian Court, like Polish, British, Israeli, Italian, German and others, positions itself as an instance of appeal concerning the adequacy of the reasoning (rather the hierarchical position) and it also goes out of its way to present what in essence is a defiant exit decision as dialogical.

The background of the decision is a backlash against the provisions in the 1993 Constitution which appear to give precedence to international law over domestic law, unleashed particularly in the wake of the Yukos decision.

At the request of ninety-three parliamentary deputies, the Russian Supreme Court reviewed the constitutionality of the law on ratification of the ECHR. The Court underlined the principle of supremacy of the constitution in relation to international treaties, and furthermore, the supremacy of the constitution in relation to subsequent interpretations of the treaties by international judicial bodies. Despite the professed determination to avoid conflicts and foster dialogue, the Court demonstrated willingness to review evolving interpretations of the European Court of Human Rights (ECtHR), assume the role of the final arbiter in human rights matters, and prioritize the domestic constitution and the balance of values it establishes. Here are some key elements of the decision which speak for themselves.

Bound by the requirement to observe an international treaty having entered into force, such as the Convention for the Protection of Human Rights and Fundamental Freedoms, the Russian Federation is nevertheless obliged to ensure the supremacy of the Constitution of the Russian Federation within the framework of its legal system, which forces it in the event of emerging of any collisions in this field, whereas the Constitution of the Russian Federation and the Convention for the Protection of Human Rights and Fundamental Freedoms are based on the same basic values of the protection of human and civil rights and freedoms, to give preference to the requirements of the Constitution of the Russian Federation and thereby not follow literally the judgment of the European Court of Human Rights in the event if its execution contradicts constitutional values. [Emphasis added] Thus…if the European Court of Human Rights, interpreting a provision of the Convention for the Protection of Human Rights and Fundamental Freedoms in the course of the consideration of a case, gives to a notion used in the Convention a meaning other than the ordinary one or carries out interpretation contrary to the object and purpose of the Convention, the state, in respect of which the judgment has been passed on this case, has the right to refuse to execute it as it goes beyond the obligations, voluntarily taken by this state upon itself when ratifying the Convention. 187

And here, too, we find a senior judge, speaking extra-judicially who contextualizes the decision: Valery D. Zorkin, president of the Constitutional Court of Russia, explains: “The main problem, which the Constitutional Court of Russia has faced within its work, is the need of simultaneous fulfilment of two not always well-combined tasks: harmonizing Russia’s legal system with the all-European legal expanse, on the one hand, and protection of its own constitutional identity, on the other.” 188

4.4. Localization: Identity as voice manifestation of the third wave

Identity as voice is an attenuated form of identitarian jurisprudence. In these cases courts do not play the “identity card” as a means to avoid an international norm but as a way to explain a particularistic means of giving effect to the norm. In these cases voice manifests itself through a process of localization. We bring these cases under the identitarian umbrella since the cultural and political specificity of the jurisdiction provide the rationale for the judicial inflection.

The decision of the Supreme Court in Indira Sawhney v. Union of India provides a textbook example of such localization as the Court redefines the constitutional norm of equality in local terms. 189

The case concerned the constitutionality of affirmative action measures which provided for reservations in government jobs for the members of “backward classes.” The judgment introduced the notion of “creamy layer,” which refers to the members of a backward class that are well off and hence should not profit from affirmative action. But the judgment is also important because it underlines the specific importance of the substantive notion of equality in the Indian constitutional system, which distinguishes it from other constitutional systems—such as the USA—which are less open to affirmative action. This distinction is made on the basis of specific constitutional history, social context, local values (including Hindu values), and the wording of the constitution. Here is a sample of the language used by the Court:

2. The Constituent Assembly, though elected on the basis of a limited franchise, was yet representative of all sections of society. Above all, it was composed of men of vision, conscious of the historic but difficult task of carving an egalitarian society from out of a bewildering mass of religions, communities, castes, races, languages, beliefs and practices. They knew their country well. They understood their society perfectly. They were aware of the historic injustices and inequities afflicting the society. They realised the imperative of redressing them by constitutional means, as early as possible—for the alternative was frightening. Ignorance, illiteracy and above all, mass poverty, they took note of. They were conscious of the fact that the Hindu religion—the religion of the overwhelming majority—as it was being practiced, was not known for its egalitarian ethos. It divided its adherents into four watertight compartments. Those outside this four-tier system (chaturvarnya) were the outcastes (Panchamas), the lowliest. They did not even believed all the caste system—ugly as its face was. The fourth, shudras, were no better, though certainly better than the Panchamas. The lowliness attached to them (Shudras and Panchamas) by virtue of their birth in these castes, unconnected with their deeds. There was to be no deliverance for them from this social stigma, except perhaps death. They were condemned to be inferior. All lowly, menial and unsavoury occupations were assigned to them. In the rural life, they had no alternative but to follow these occupations, generation after generation, century after century. It was their “karma”, they were told, the penalty for the sins they allegedly committed in their previous birth. Pity is, they believed all this. They were conditioned to believe it. This mental blindfold had to be removed first. This was a phenomenon peculiar to this country. Poverty there has been—and there is—in every country. But none had the misfortune of having this social division—or as some call it, degradation—super-imposed on poverty. Poverty, low social status in Hindu caste system and the lowly occupation constituted—and do still constitute—a vicious circle. The founding fathers were aware of all this—and more.

It then goes on to examine in an exemplary manner international and comparative notions of equality and charts India’s own (admirable) way in this context. Another example of this process of localization in the area of secularism can be found in the Bommai decision. 190

The Indian Case reflects the existence of identitarian sensibilities in earlier years. Indeed, this is not a revolutionary line of reasoning for constitutional courts. However, as the following set of examples may suggest, such sensibilities are currently more accentuated. Hong Kong provides a fascinating inflection on the use of identity in constitutional jurisprudence. Where normally local culture is used as the backdrop against which to define an identitarian argument in opposition to transnational norms, in Hong Kong with the ongoing simmering “war of attrition” between Beijing and Hong Kong, the roles were inverted and it was the international normativity which was integrated into the specificity of Hong Kong-ian identity as a bulwark against pressure from the Mainland.

The Basic Law of Hong Kong explicitly allows the courts to refer to “other common law jurisdictions” (article 84) and incorporates the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESCR), and international labor conventions into its constitutional system (article 39). This—together with historical ties with the British legal system—makes the Hong Kong Court of Final Appeal (the highest judicial instance) extraordinarily open to foreign and international law, and references to foreign cases account for the majority of citations in this court’s case law. However, given the specific autonomous status of Hong Kong in relation to China, the Hong Kong Court of Final Appeal has asserted its specificities in relation to the civil law-based Chinese legal system with a reference to the common law heritage and by relying on international and comparative law. 191

Sexual identity and related subjects are fertile ground for conflictual constitutional jurisprudence and are not by any means novel. However, to be noted in some recent jurisprudence is the creeping use of identitarian concepts, vocabulary, and/or sensibilities to the rationale offered by constitutional courts. Kenji Yoshino and Michel Kavey describe the global movement toward recognition of same-sex unions but emphasize how most developments toward recognition of same-sex relationships occurred at the legislative level, often without overt prompting by the courts. 192 Here are some examples of cases in which constitutional and/or national identity form part of the explicit or implicit rationale of courts. In a decision dedicated to the question of same-sex marriage, the Polish Constitutional Tribunal emphasized the specific conception of marriage and the particular interpretation of discrimination based on sexual orientation as areas that could not be changed by virtue of international law. 193 Similarly, the Chilean Constitutional Tribunal decided not to recognize same-sex marriage in light of the Chilean legal tradition with similar identitarian creep. 194

The Court of Final Appeal in Hong Kong considered a transsexual woman’s request to marry and emphasized its role in reflecting contemporary social conventions in Hong Kong . The Court emphasized that for the purpose of the interpretation, “the principal consideration must be the circumstances in Hong Kong, just as the ECHR was more concerned with the situations among its member states.” 195 It thus concluded that “. . . there is no evidence that the social attitudes in Hong Kong towards the traditional concept of marriage and the marriage institution have fundamentally altered.” 196

The attention to identitarian considerations is very explicit in some South Korean cases. The South Korean Court based its reasoning on issues such as the constitutionality of imprisonment as the only sentence for the crime of adultery or fornication with a married person, 197 the constitutionality of capital punishment, 198 and cases concerning conscientious objection of military service 199 on local tradition and unique security concerns. The Court stated that “the idea of chastity inherent in the Korean society, in particular that between husband and wife, is inherited traditional ethics that is still rooted in the society,” 200 refrained from deciding on the constitutionality of capital punishment but instructed the legislature to “. . . spare no efforts in correcting overall problems of the present capital punishment system based on national consensus to cope with the changes of the times and repeal laws or provisions as necessary” 201 and emphasized the unique security circumstances in Korea to justify its position on conscientious objection to service—“In our society where the social demand for the equality in the burden of military service is strong and absolute . . . the adoption of the alternative service system might cause a serious harm to the capacity of the nation as a whole by crucially injuring the social unification and might further destabilize the backbone of the entire military service system based upon the mandatory conscription of all citizens.” 202

In each of the judgments the Korean Court emphasized how and why its reasoning is incompatible with comparative constitutional jurisprudence of other courts. In the context of adultery imprisonment it stated that “it is hardly the case that, despite the global legislative trend of non-punishment of adulterers and fornicators and the fact that adultery can be grounds for divorce and payment of compensation for grief, change in legal relations of family law makes adultery non-disruptive of normal social standards and thus eliminates the need for criminal punishment. It is also because factors such as the situation of the times, people’s values such as sexual awareness, and the existence of equality-based family law system vary greatly across countries .” Following a similar line, it stated that “the duty of military service and the principle of equality in allocating the burden of military service have an important meaning that is incom parable to other nations .” 203 It adopted a less deferential line in the context of capital punishment and instructed the legislature to “to make continuing efforts to consult the examples of other countries which have been making a gradual improvement in the criminal justice system while the death penalty is retained, by reducing the number of crimes subject to capital punishment that is incompatible with the criminal justice system and removing the causes of the problems in capital punishment as much as possible.” 204

Michel Rosenfeld 205 observed how “an imagined constitutional community must constantly strive to differentiate itself from its corresponding imagined national community without severing its links to the latter to the point that the two cannot be imagined from a more comprehensive vantage point as markers of some overall sameness and corresponding selfhood which would bind a people to its nation as well as to its constitution.” 206 Contemporary jurisprudence of constitutional courts conveys this very tension when judges attempt to reframe national sensibilities in constitutional terms.

The conflict we surveyed in the previous section between domestic and international courts over prisoners’ rights, immunity, and security along the border translates questions of national identity to juridical terms. It is hard to ascertain whether or not the courts in some of these cases react to or reflect a backlash era undercurrent by casting nationalist and identitarian sensibilities in juridical and normative terms. While the notion of identity existed in constitutional jurisprudence before Brexit, we cautiously point to the possibility that the Brexit-era jurisprudence, only briefly surveyed here, does offer instances in which courts were more explicit in their engagements with the question of identity. The rise of such sensibilities “now” was facilitated by specific factors to each constitutional context alongside general global developments such as the 2008 economic crisis, the refugee crisis, and geopolitical power dynamics. Our modest contribution here is merely to suggest that if first wave judicial review led to an atomized conception of the individual and second wave developments deepened the reductionist perspective on individuality and the human experience, then it may not be surprising that their accumulated effect led constitutional courts to resist cosmopolitan and international sources in favor of constitutional reasoning that emphasizes local identity and values. The vantage point of the waves’ perspective may provide an additional, complementary lens, to explain the use and resonance of such identity sensibilities. Such developments are also compatible with our emphasis on a dialectical movement within and between the waves. The question is to what extent the claims of identity indicate a departure from the tendency of internationalization of constitutional law. After all, such claims have always been present in one form or the other. Our finding is still rather anecdotal and yet we detect a more visible turn to identity. In other words, while courts may have drawn on constitutional specificities and tradition before, their turn to identity now may be a consequence of the impact of international law on constitutional law or an attempt to break or contain backlash-related developments leading them to openly justify their departure from international law or base their reasoning in identity terms. This jurisprudence is developed and written in the shadow of exit à la Brexit.

Mauro Cappelletti was himself a creature of the period he explored. An anti-Nazi partisan in his adolescence, he lived the post-war events which were not only a turning point in the history of justice and the rule of law for him, but he willed them to be so. Like so many idealists of that generation he abhorred tyranny of any sort, harbored deep skepticism of the European nation state, and experienced a profound crisis of faith in the rectitude of popular democratic institutions. He thus put on a pedestal a faith in the “international” and in federal arrangements which acted as a check on local atavisms and in the need for powerful judiciaries as indispensable to good governance. He admired the United States but in one respect also disdained it: not least the aversion of its judiciary to international norms, which for him were an indis pensable parameter of the democratic paradigm. Not surprisingly, his cartography of judicial review in the contemporary world enmeshed with his implicit historiography—a story of a linear, worldwide process driven by a single normative engine—progress! One should not detract one iota from Cappelletti’s singular scholarly and visionary achievement: judicial review, of a constitutional nature, has become the norm rather than the exception in the contemporary world, a prediction which was not self-evident when it was made. And the enmeshment of the international with the constitutional, of the global with the local, is every bit as much the norm as well.

Unsurprisingly in revisiting Cappelletti’s cartography and historiography our own analysis did not consist of adding a mountain here, a valley there, and simply mapping parts of the world which were left out of the previous audacious exploration. Our cartography and historiography, coming fifty years later, understandably tell in many ways a different story altogether, in which the dialectical replaces the linear, in which, using our “wave” metaphor, the causalities in explaining the overall process are complex, moving within and across the waves, and last but not least, in which the normativity is, in the very strict sense of the word, often tragic, the result of incommensurate and even necessary contradictions.

It is so because, as never before, the complex map of judicial review refracts a complex reality in which the very notion of the “public” (and public space) has changed. We experience, as never before, being part of a local (at times non-spatial) space, a national (still strong everywhere) space, and a transnational and global space. Want it or not, we all possess multiple passports, though some of us would wish to burn one or the other of these.

The international command modes, buttressed by a widening and deepening of compliance mechanisms, have become a veritable form of governance replacing not only or even primarily the role of parliaments but, with greater impact, the role of national administrations. We intimated that the concept of international governance is not a matter of choice: there are too many phenomena which are simply beyond the practical power of even the most powerful of states to control or regulate alone. We also noted that the decline in most societies in the principled opposition to judicial review as part and parcel of both democracy and good governance does not eliminate strong feelings in regard to its specific manifestations in this or that era or political constellation.

The emergence of the third wave may be seen as a self-correction of the system itself. It is an interesting phenomenon which is considered, by international “purists” as aberrational. For us it is inevitable also on normative grounds. How so?

Since the vocabulary and ontology of democracy are rooted in notions of demos, nation and state, there is no easy conceptual international template from the traditional array of democratic theories one can employ to close the democratic gap in international governance. A simplistic application of the majoritarian principle in world arenas would be practically ludicrous—a world demos exists only in the science fiction utopia/dystopia of Star Wars. It is not a question of adapting national institutions and processes to international contexts. That could work in only limited circumstances. What is required is both a rethinking of the very building blocks of democracy to see how these may or may not be employed in an international system which is neither state nor nation and a search for alternative legitimating devices which would make up for the non-applicability of some of the classical institutions of democracy where that is not possible. If the rule of law is to remain one of the essential foundations of pluralist democracy, the third wave is not only inevitable but, if exercised judiciously and prudently—if national judges understand what it means to remove their national hat and act on behalf of the global space—it could be conceived as necessary and desirable.

We speak about the tragedy of this new public space in an altogether non-sentimental way. We take for granted that the developments represented by the first wave might still place the heavy burden on judges whose legal conscience require them to overturn majoritarian decisions. Regarding the second wave, as a matter of our own values, we believe that much of the widening and deepening of international law over the last century, especially in the accelerated fashion of the last few decades, has been beneficial to mankind and has made the world a better place in which to live for a large number of persons. 207 We also believe that as in domestic situations, where the rule of law is a necessary element and a condition for a functioning democracy, the same, mutatis mutandis , would be true for the international system. From this perspective we would regard as regressive a call for a wholesale dismantling of the international legal regimes. And yet it is evident that much of international norm-setting, not least in the area of global administrative law, lacks the nuts and bolts of what we consider essential to democratic legitimacy, often driven by well-wishing actors, but not infrequently captured by special typically powerful economic interests in which the individual is squeezed out. The cases we mentioned as harbingers of the third wave illustrate such. We believe too that in the international sphere as elsewhere the end can justify the means only so far; that a legitimacy powerfully skewed to results and away from process, based mostly on outputs and only to a limited degree on inputs, is a weak legitimacy and sometimes none at all.

The first sentiment would be a call for states, their internal organs (notably courts), and other actors to embrace international normativity. The second sentiment would be a call to the same agents to treat international normativity with considerable reserve. The traditional opposition to “internationalism” came from nationalism and was conceptualized as a tension between national sovereignty and international law. The opposition we are alluding to is, instead, not a concern with sovereignty—at least not with the classical sovereignty of the state. It takes the international legal order as an acquis —but it is unwilling to celebrate the benefits of that acquis when gained by a disenfranchisement of people and peoples. There is, thus, in our view a deep paradox in the spread of liberal democracies to an increasing number of states and populations around the world. The spread of the second wave is thus inherently problematic from a normative point of view.

From an optimistic view, the slow emergence of the third wave will weave itself into a pattern of checks and balances which could alleviate some of the problems of enhanced internationalism moving step by step as the international legal order finds ways to translate the habits and practices of domestic democracy in the international sphere. But even this optimistic vision is not without its tragicity. Returning now to our opening paragraphs, the entire process we described, whether in its original Cappelletti-esque Newtonian form or in our messier and more complex Einsteinian version has one constant, one leitmotiv: courts, international and domestic, reacting against tyrannies, real or presumed, on behalf of their individual victims. In the new public space we described, even in its global manifestation, courts have placed the individual, as never before in history, in the center of their judicial activity. While identity, and concerns over rule of law and democracy deficits may have gained some traction in contemporary constitutional jurisprudence, a republican commitment or concerns over inequality and distributive justice continue to be marginalized. And here too the tragic is there to be seen by those who wish to: a world in which the individual placed in the center increasingly becomes a self-centered individual to the detriment of the social.

Mauro Cappelletti, Judicial Review in the Contemporary World (1971).

According to Tom Ginsburg and Mila Versteeg, 38 percent of countries had judicial review in 1951, whereas 86 percent did in 2011. Tom Ginsburg & Mila Versteeg, Why Do Countries Adopt Constitutional Review? , 30 J. L. Econ. & Org. 587 (2014). See, e.g. , Wojciech Sadurski, Rights Before Courts (2d ed. 2014).

Case 294/83, Les Verts v. Parliament, [1986] E.C.R. 1339; Walter Hallstein, Die Europäische Gemeinschaft 51 (5th ed. 1979).

Klemen Jaklic, Constitutional Pluralism in the EU (2014).

Mauro Cappelletti & Garth Bryant, Access to Justice and the Welfare State 3 (1981); Samuel P. Huntington, The Third Wave: Democratization in the Late Twentieth Century (1991).

We frequently use “constitutionalization” as a proxy to the adoption of judicial review within a constitutional order, while drawing attention to the nexus, as mentioned above, between the constitutional and the administrative, the boundaries of which, not least in the transnational sphere, are breaking down.

For a historical overview on administrative law see Peter Cane, Controlling Administrative Power, an Historical Comparison ch. 6 (2016).

Mary Sarah Bilder studied the earlier history of judicial review. See Mary Sarah Bilder, The Corporate Origins of Judicial Review , 116 Yale L.J. 502 (2006). Other scholars similarly point to earlier origins. See Saikrishna B. Prakash & John C. Yoo, The Origins of Judicial Review , 70 U. Chi. L. Rev. 887 (2003); Symposium, The Constitutional Origins of Judicial Review , 72 Geo. Wash. L. Rev. 1 (2003); Charles F. Hobson, The Origins of Judicial Review: A Historian’s Explanation , 56 Wash. & Lee L. Rev. 811 (1999); Jack N. Rakove, The Origins of Judicial Review: A Plea for New Contexts , 49 Stan. L. Rev. 1031 (1997); W. M. Treanor, Judicial Review Before Marbury, 58 Stan. L. Rev . 455 (2005). For a discussion on these revisionist histories, see Gordon S. Wood, The Origins of Judicial Review Revisited, or How the Marshall Court Made More out of Less , 56 Wash. & Lee L. Rev. 787 (1999).

Patricio Navia & Julio Ríos-Figueroa, The Constitutional Adjudication Mosaic of Latin America , 38 Comp. Pol. Stud. 189, 193 (2005); David Bushnell & Neil Macauley, The Emergence of Latin America in the Nineteenth Century (1994).

The Nordic countries of Sweden, Denmark, and Norway share a tradition of recognizing judicial review in theory with very limited scope in practice. Finland joined a very limited review of its constitution by the courts in 2000. Jaakko Husa , Guarding the Constitutionality of Laws in the Nordic Countries: A Comparative Perspective, 48 Am. J. Comp. L . 345 (2000).

Stephen Gardbaum, Separation of Powers and the Growth of Judicial Review in Established Democracies (or Why Has the Model of Legislative Supremacy Mostly Been Withdrawn from Sale? ), 62 Am. J. Comp. L. 613, 613–614, 619–627 (2014).

Michael Stolleis, Judicial Review, Administrative Review, and Constitutional Review in the Weimar Republic , 16 Ratio Juris 266, 277 (2003); Louis Favoreu, Constitutional Review in Europe , in Constitutionalism and Rights: The Influence of the United States Constitution Abroad (Louis Henkin & Albert Rosenthal eds., 1990). Mauro Cappelletti discussed the failure of the Weimar and French model for Judicial Review. See Cappelletti , supra note 1, at 53–66.

For further details , see, e.g. , David Deener, Judicial Review in Modern Constitutional Systems , 46 Am. Pol. Sci. Rev. 1079, 1086–1090 (1952).

Political Constitution of the Mexican United States [C.P.] , 2005; Constitution of the Federative Republic of Brazil [C.F.] , 1988; Constitution of Cuba , 1992.

For further discussion on this period, see Deener, supra note 13.

Favoreu, supra note 12. For further discussion on the failure to endorse judicial review during the interwar period, see Cappelletti, supra note 1, at 53–66.

On the failure of judicial review in the Weimar Republic in light of public and institutional opposition, see Stolleis, supra note 12, at 277.

In an article published in 1928 Kelsen developed a comprehensive theory supporting a centralized model of judicial review. Hans Kelsen, La garantie jurisdictionelle de la Constitution , 45 Revue de Droit Publique et Science Politique en France et á l’Étranger 197 (1928).

For further discussion, see Alec Stone Sweet, Governing with Judges: Constitutional Politics in Europe ch. 2 (2000); John Ferejohn & Pasquale Pasquino, Constitutional Adjudication: Lessons from Europe , 82 Tex. L. Rev . 1671, 1681–1700 (2003–2004).

Stephen Gardbaum, The New Commonwealth Model of Constitutionalism , 49 Am. J. Comp. L. 707, 713–714 (2001).

This model is embodied in the British doctrine of parliamentary supremacy and in the French doctrine, as clearly exemplified by the Declaration of the Rights of Man and of the Citizen of 1789, art. 6 (Fr.): “Law is the expression of the general will. Every citizen has a right to participate personally, or through his representative, in its foundation. It must be the same for all, whether it protects or punishes. All citizens, being equal in the eyes of the law, are equally eligible to all dignities and to all public positions and occupations, according to their abilities, and without distinction except that of their virtues and talents.”

Bruce Ackerman, The Rise of World Constitutionalism , 83 Va. L. Rev . 771, 772–773 n. 4 (1997). Compare Donald P. Kommers, The Constitutional Jurisprudence of the Federal Republic of Germany (1st ed. 1997).

Donald P. Kommers & Russell A. Miller, The Constitutional Jurisprudence of the Federal Republic of Germany 3–29 (3d ed. 2012).

Constitution of the Italian Republic, 1948 , art. 134; Chris Thornhill, A Sociology of Constitutions: Constitutions and State Legitimacy in Historical-Sociological Perspective 332 (2011).

After World War II the Allies imposed a new constitutional order on Japan, albeit internal opposition. See Norikazu Kawagishi, The Birth of Judicial Review in Japan , 5 Int’l J. Const. L. (2007).

In Austria the 1929 Constitution and Constitutional Court, with few amendments, were reintroduced in 1945. Thornhill , supra note 24, at 337.

30 The Yugoslav Court of these years had limited influence. Mauro Cappelletti, Judicial Review in Comparative Perspective, 58 Calif. L. Rev. 1017, 1039 (1970).

Ackerman, supra note 22.

For further discussion, see Judicial Politics in France: The Constitutional Council in Comparative Perspective (1992).

For further discussion on the introduction of judicial review in Belgium, see Gardbaum, supra note 11, at 619. But see Denmark and Finland—very well-functioning democracies, as was Britain for a long time, even without judicial review.

Vijayashri Sripati, Constitutionalism and Rights in India , 14. Am U. Int’l Rev . 413 (1998).

Tom Ginsburg, Constitutions in Authoritarian Regimes (2014).

See Sadurski , supra note 2 ; Stephen Holmes & Cass Sunstein, The Politics of Constitutional Revision in Eastern Europe, in Responding to Imperfection: The Theory and Practice of Constitutional Amendment 275 (Sanford Levinson ed., 1995); Ackerman, supra note 22; Tom Ginsburg, The Global Spread of Constitutional Review , in The Oxford Handbook of Law and Politics 82 (Gregory A. Caldeire, R. Daniel Kelemen, & Keith E. Whittington eds., 2008).

Estonia did not adopt such a model. See Nancy Maveety & Vello Pettai, Government Lawyers and Non-judicial Constitutional Review in Estonia, 57 Eur.-Asia Stud. 93, 99 (2005).

Mark F. Brzezinski & Leszek Garlicki, Judicial Review in Post-Communist Poland: The Emergence of a Rechtsstaat? , 31 Stan. J. Int’l L. 13 (1995).

András Sajó, Reading the Invisible Constitution: Judicial Review in Hungary, 15 Oxford J. Legal Stud. 253, 254–255 (1995); Gábor Halmai, The Reform of the Constitutional Law in Hungary After the Transition, 18 Legal Stud. 188, 189 (1998).

Darina Malová, The Role and Experience of the Slovakian Constitutional Court, in Constitutional Justice, East and West 349 (Wojciech Sadurski ed., 2002).

A limited judicial review was introduced in the Czech Republic before World War I. See Sadurski , supra note 2, at 4–5.

Leonas Sabaliūnas, Comparative Perspective on Judicial Review in Lithuania, 48 Eur.-Asia Stud. 783, 784 (1996).

Rait Maruste & Heinrich Schneider, Constitutional Review in Estonia—Its Principal Scheme, Practice and Evaluation, in Constitutional Reform and International Law in Central and Eastern Europe 91, 91–92 (Rejn Müllerson, Malgosia Fitzmaurice, & Mads Andenas eds., 1998).

Herman Schwartz, The Struggle for Constitutional Justice in Post-Communist Europe 172 (2000).

Paul Blokker, Constitution-Making in Romania: From Reiterative Crises to Constitutional Moment? 3 Romanian J. Comp. L. 187, 189–190 (2012).

Kataryna Wolczuk, The Constitutional Court of Ukraine: The Politics of Survival, in Constitutional Justice, East and West: Democratic Legitimacy and Constitutional Courts in Post-Communist Europe in a Comparative Perspective 327, 329 (Wojciech Sadurski ed., 2002).

Alexei Trochev, Less Democracy, More Courts: A Puzzle of Judicial Review in Russia, 38 Law & Soc’y Rev. 513 (2004). For further discussion on judicial review in Central and Eastern Europe, see Michel Rosenfeld, Wojciech Sadurski, & Roberto Toniatti, Central and Eastern European Constitutionalism a Quarter Century After the Fall of the Berlin Wall: Introduction to the Symposium, 13 Int’l J. Const. L. 119 (2015).

Tom Ginsburg, Constitutional Courts in East Asia: Understanding Variation , 3 J. Comp . L. 80 (2008) [hereinafter Ginsburg, Constitutional Courts in East Asia ]; Jou-Juo Chu, Global Constitutionalism and Judicial Review , 38 J . Contemp. Asia 515 (2008). For further discussion, see Tom Ginsburg, Confucian Constitutionalism? The Emergence of Constitutional Review in Korea and Taiwan , 27 Law & Soc. Inquiry 763 (2002) [hereinafter Ginsburg, Confucian Constitutionalism? ].

See S. Afr. Const. , 1996.

For the changing tide toward greater skepticism in Eastern and Central Europe, see Rosenfeld et al. , supra note 44.

Tom Ginsburg documents some of these trends in the Comparative Constitutions Project, http://comparativeconstitutionsproject.org/ccp-visualizations . For an overview of this and related sub-processes, see David S. Law & Mila Versteeg, The Evolution and Ideology of Global Constitutionalism , 99 Calif. L. Rev. 1162 (2011).

On this controversy and how it should be resolved, see Rosalind Dixon & Eric A. Posner, The Limits of Constitutional Convergence, 11 Chi. J. Int’l Law 399 (2011).

For differing views on the question of convergence and divergence, see id . For a different aspect of divergence that may be related to backlash processes, see Stephen Gardbaum, Are Strong Constitutional Courts Always a Good Thing for New Democracies? , 53 Colum. J. Transnat’l L. 285 (2015).

For further discussion on international law as community, see J. H. H. Weiler, The Geology of International Law: Governance, Democracy and Legitimacy , 64(3) Zeitschrift für ausländisches öffentliches Recht und Völkerrecht [J. Foreign Pub. L. & Int’l L.] 547–562 (2004); Bruno Simma, From Bilateralism to Community Interest in International Law , 250 Rec. des Cours 217 (1994).

A. W. B. Simpson, Human Rights and the End of Empire: Britain and the Genesis of the European Convention (2001); David Kennedy, The Move to Institutions , 8 Cardozo L. Rev. 841 (1986); Mark Mazower, Governing the World: The History of an Idea, 1815 to the Present (2012); cf. Samuel Moyn, The Last Utopia (2011).

Weiler, supra note 51; Simma, supra note 51.

For further discussion, see Karl P. Sauvent , The Rise of International Investment, Investment Agreements and Investment Disputes, in A ppeals Mechanism in International Investment Disputes 3 ( Karl P. Sauvant & Michael Chiswick-Patterson eds., 2008); Peter Egger & Valeria Merlo, BITs Bite: An Anatomy of the Impact of Bilateral Investment Treaties on Multinational Firms , 114 Scandinavian J. Econ. 1240 (2012).

Gus van Harten, Investment Treaty Arbitration and Public Law (2007) ; David Schneiderman, Constitutionalizing Economic Globalization: Investment Rules and Democracy’s Promise (2008); Benedict Kingsbury & Stephan W. Schill, Investor-State Arbitration as Governance: Fair and Equitbale Treatment, Proportionality and the Emerging Global Administrative Law, in 50 Years of the New York Convention: ICCA International Arbitration Conference (Albert Jan van den Berg ed., 2009). For further discussion on the marginalization of local interests by global governance regimes, see Stefano Battini, The Procedural Side of Legal Globalization: The Case of the World Heritage Convention , 9 Int’l J. Const. L. 340 (2011); Eyal Benvenisti & George W. Downs, Democratizing Courts: How National and International Courts Promote Democracy in an Era of Global Governance , 46 N.Y.U. J. Int’l L. & Pol. 741, 745–752 (2014).

For attempts to counterbalance these power relations, see Government of Canada, Department of Global Affairs, Trade, and Investment, Canada’s Enhanced Corporate Social Responsibility Strategy (CSR) to Strengthen Canada’s Extractive Sector Abroad (additional examples are the debate over an international mechanism, Australia, etc.).

Eyal Benvenisti & George Downs, National Courts, Domestic Democracy and the Evolution of International Law , 20 Eur. J. Int’l L . 59 (2009)

Richard Falk, The Role of Domestic Courts in the International Legal Order , 39 Ind . L.J. 429 (1964); Joseph H. H. Weiler , The Transformation of Europe , 100 Yale L.J. 2403 (1991).

Eyal Benvenisti, Judicial Misgivings Regarding the Application of International Norms: An Analysis of Attitudes of National Courts , 4 Eur. J. Int’l L. 159 (1993).

Andre Nollkaemper addresses these processes from a different theoretical perspective: “The picture that emerges is one in which international law, on the one hand, increasingly reaches down to national courts, and on the other hand, many states and their courts increasingly reach up to allow international law to guide their judicial practices.” See Michael Zurn, Andre Nollkaemper, & Randall Peerenboom, Introduction: Rule of Law Dynamics in an Era of International and Transnational Governance, in Rule of Law Dynamics 1, 8 ( Michael Zurn, Andre Nollkaemper, & Randall Peerenboom eds., 2014).

Wen-Chen Chang & Jiunn-Rong Yeh, Internationalization of Constitutional Law , in The Oxford Handbook of Comparative Constitutional Law 1165, 1167 (Michel Rosenfeld & Andras Sajo eds., 2012).

The European Courts and National Courts: Doctrine and Jurisprudence (Anne-Marie Slaughter, Alec Stone Sweet, & Joseph H. H. Weiler eds., 1998).

See, e.g. , Bardi Fassbender, The United Nations Charter as the Constitution of the International Community (2009).

Eyal Benvenisti, Reclaiming Democracy: The Strategic Uses of Foreign and International Law by National Courts , 102 A m. J. I nt’l L. 241 (2008).

Karen Alter, Establishing the Supremacy of the European Law (2001).

See, e.g. , Ackerman, supra note 22.

Ran Hirschl, Towards Juristocracy: The Origins and Consequences of the New Constitutionalism (2007); Mauro Cappelletti, The Judicial Review Process in Comparative Perspective (1989); Ackerman, supra note 22; Beth Simmons, Mobilizing for Human Rights: International Law in Domestic Politics (2009); Kommers & Miller , supra note 23 .

John Ferejohn & Pasquale Pasquino, Constitutional Courts as Deliberative Institutions: Towards an Institutional Theory of Constitutional Justice, in Constitutional Justice, East and West 21 (Wojciech Sadurski ed., 2002).

Gardbaum, supra note 20, at 714–715.

Lorraine E. Weinrib, The Post-War Paradigm and American Exceptionalism, in The Migration of Constitutional Ideas 84, 89–90 (Sujit Choudhry ed., 2006).

J. H. Ely, Democracy and Distrust: A Theory of Judicial Review 81–82 (1980).

Id. at 88. See also Richard H. Fallon, The Core of an Uneasy Case for Judicial Review , 121 Harv. L. Rev. 1693 (2008); Mattias Kumm, Institutionalizing Socratic Contestation: The Rationalist Human Rights Paradigm, Legitimate Authority, and the Point of Judicial Review , 1 Eur. J. Legal Stud. 1, 1 (2007).

Ran Hirschl, “ Negative” Rights vs. “Positive” Entitlements: A Comparative Study of Judicial Interpretations of Rights in an Emerging Neo-Liberal Economic Order , 22 Hum. Rts. Q. 1060, 1095 (2000).

Ginsburg, supra note 33, at 87.

See, e.g. , Udi Greenberg, The Weimar Century: German Emigres and the Ideological Foundations of the Cold War (2014); Mazower , supra note 52, at 191–377.

For further discussion on the fragmentation thesis, see John Ferejohn, Judicializing Politics, Politicizing Law , 65 Law & Contemp. Probs. 41, 55–60 (2002).

Martin Shapiro, The Success of Judicial Review in Constitutional Dialogues in Comparative Perspective, in Constitutional Dialogues in Comparative Perspective 193 (Sally J. Kenney, William M. Reisinger, & John C. Reitz eds., 1999 ) .

See Sujit Choudhry, Bridging Comparative Politics and Comparative Constitutional Law: Constitutional Design in Divided Societies , in Constitutional Design for Divided Societies: Integration or Accommodation? (Sujit Choudhry ed., 2008). On courts as unwinders of ethnic political bargains, see Richard Pildes, Ethnic Identity and Democratic Institutions: A Dynamic Perspective , in Constitutional Design for Divided Societies: Integration or Accommodation? 173, 195–198 (Sujit Choudhry ed., 2008).

Martin Shapiro & Alec Stone Sweet, On Law, Politics and Judicialization (2002); Matthew McCubbins & Thomas Schwartz, Congressional Oversight Overlooked: Police Patrols versus Fire Alarms , 28 Am. J. Pol. Sci. 165 (1984).

Barry Weingast, Constitutions as Governance Structures: The Political Foundations of Secure Markets , 149 J. Inst. & Theoretical Econ. 286 (1993).

David S. Law, Globalization and the Future of Constitutional Rights , 103 Nw. U. L. Rev. 1277, 1322–1323 (2008).

Ran Hirschl, The Strategic Foundations of Constitutions , in Social and Political Foundations of Constitutions 157, 162–163 (Dennis Galligan & Mila Versteeg eds., 2014); Tom Ginsburg, Economic Analysis and the Design of Constitutional Courts , 3 Theoretical Inquiries L. 49 (2002).

Samuel Issacharoff, Constitutional Courts and Democratic Hedging , 99 Geo. L.J. 961 (2011).

Martin M. Shapiro, Courts: A Comparative and Political Analysis (1981) ; Martin Shapiro, The Success of Judicial Review in Constitutional Dialogues in Comparative Perspective , in Constitutional Dialogues in Comparative Perspective 193 (Sally J. Kenney, William M. Reisinger, & John C. Reitz eds., 1999); Jon Elster, Forces and Mechanisms in Constitution Making Process , 45 Duke L.J. 364 (1995); Tom Ginsburg, Judicial Review in New Democracies: Constitutional Courts in Asian Cases (2003) ; Hirschl , supra note 67 .

Thomas Franck, Legitimacy in the International System , 82 Am. J. Int’l L. 705 (1988).

See, e.g. , Kenneth Waltz, Theory of International Politics (1979).

See Andrew Moravcsik, The Origins of Human Rights Regimes: Democratic Delegation in Postwar Europe , 54 Int’l Org. 217 (2000).

Robert D. Putnam, Peter B. Evans, & Harold Karan Jacobson, On Double-Edged Diplomacy: International Bargaining and Domestic Politics (1993).

See Moravcsik, supra note 90, at 233.

Marco Duranti, The Conservative Human Rights Revolution: European Identity, Transnational Politics and the Origins of the European Convention 215–409 (2017). See also Samuel Moyn, Christian Human Rights (2015).

Simmons , supra note 67.

Benvenisti, supra note 64.

See Christopher McCrudden, A Common Law of Human Rights? Transnational Judicial Conversations on Constitutional Rights , 20 Oxford J. Legal Stud . 499 (2000); Anne Marie Slaughter, A Typology of Transjudicial Communication , 29 U. Rich. L. Rev. 99 (1994).

A Europe of Rights: The Impact of the ECHR on National Legal Systems (Helen Keller & Alec Stone Sweet eds., 2008).

McCrudden, supra note 96; Slaughter, supra note 96.

Beth A. Simmons & Zachary Elkins, The Globalization of Liberalization: Policy Diffusion in the International Political Economy , 98 Am. Pol. Sci. Rev. 171, 184 (2004); Law & Versteeg, supra note 48, at 1173–1174; Zachary Elkins & Beth Simmons, On Waves, Clusters and Diffusion: A Conceptual Framework , 598 Annals. Am. Acad. Pol. & Soc. Sci. 33, 43–44 (2005).

Transnational interest groups or at the level of the mass public. See, e.g. , Ryan Goodman & Derek Jinks, How to Influence States: Socialization and International Human Rights , 54 Duke L.J. 621, 630–638 (2004) (describing the three mechanisms).

Benedikt Goderis & Mila Versteeg, Transnational Constitutions: A Conceptual Framework, in Social and Political Foundations of Constitutions 103, 105–122 (Dennis Galligan & Mila Versteeg eds., 2014).

For an overview of mechanisms for constitutional diffusion, see id. at 105–122.

“Rights may represent ‘cheap talk,’ while institutions are likely to develop a self-enforcing quality so that constitutional designers must treat them as involving higher stakes.” Ginsburg & Versteeg, supra note 2.

Alan Watson, Legal Transplants: An Approach to Comparative Law ( 2d ed . 1993) .

McCrudden, supra note 96; Slaughter, supra note 96; Sujit Choudry, Globalization in Search of Justification Toward a Theory of Comparative Constitutional Interpretation , 74 Ind . L.J. 819 (1999). For an overview of the literature and the empirical “citation studies” in this field, see Vicki C. Jackson, Comparative Constitutional Law: Methodologies , in The Oxford Handbook of Comparative Constitutional Law 54, 58–60 (Michel Rosenfeld & Andras Sajo eds., 2012).

Celebrating voices, Vicky Jackson , Comparative Constitutional Federalism and Transnational Judicial Discourse , 2 Int’l J. Const. L. 91 (2004); Lorraine Weinrib, Constitutional Conceptions and Constitutional Comparativism , in Defining the Field of Comparative Constitutional Law 3 (Vicki C. Jackson & Mark Tushnet eds., 2002).

Eyal Benvenisti & George Downs, Between Fragmentation and Democracy: The Role of National and International Courts Ch. 5 (2017).

For an analysis of the strategic use of comparative and international law by constitutional courts, see Benvenisti, supra note 95; Helmut Philipp Aust, Alejandro Rodiles, & Peter Staubach, Unity or Uniformity? Domestic Courts and Treaty Interpretation , 27 Leiden J. Int’l L. 75 (2014). This phenomenon demonstrates how judges conceive themselves as part of a community outside the contours of their polity, but it doesn’t undermine their need for internal legitimacy to sustain their institutional stability.

Antje Wiener & Philip Liste, Lost Without Translation? Cross Referencing and a New Global Community of Courts , 21 Ind. J. Global Legal Stud. 263 (2014). The pluralist approach was empirically analyzed in David S. Law & Wen-Chen Chang, The Limits of Global Judicial Dialogue , 86 Wash. L. Rev. 523, 534 (2011): “At least for now, efforts to characterize judicial comparativism as a form of dialogue are better understood as the expression of a hope for the future than as a descriptively accurate assessment of actual practice.”

https://www.wto.org/english/tratop_e/region_e/region_e.htm .

Anthea Roberts, Comparative International Law? The Role of National Courts in Creating and Enforcing International Law , 60 Int’l & Comp. L.Q. 57, 73–74 (2011).

Benvenisti, supra note 95.

For a discussion on the Latin American context, see Symposium on the Constitutionalization of International Law in Latin America , 109 AJIL Unbound 89 (Nov. 11, 2015); http://www.iconnectblog.com/2015/11/symposium-on-the-constitutionalization-of-international-law-in-latin-america .

A substantive development in the endorsement of the European Convention began only a decade after the Convention entered into force (signed Nov. 4, 1950), CETS No. 5 (entered into force Sept. 3, 1953). For discussion, see Susan Sterett, Judicial Review in Britain , 26 Comp. Pol. Stud. 421, 428–429 (1994). Almost fifty years later, in 1998, The British Human Rights Act of 1998 was legislated internalizing the Convention into domestic British law. The law enabled individuals and organizations to petition British domestic courts and not just the ECHR to enforce the Convention. See Jack Beatson et al., Human Rights: Judicial Protection in the United Kingdom (2008); Richard Clayton & Hugh Tomlinson, The Law of Human Rights (2d ed. 2009); Brice Dickson, Human Rights and the United Kingdom Supreme Court (2013).

In the Netherlands as well, the introduction of domestic constitutional review was introduced to the domestic system after the ratification of the ECHR. Maurice Adams & Gerbard van der Schyff, Constitutional Review by the Judiciary in the Netherlands: A Matter of Politics, Democracy or Compensating Strategy? , 66 Heidelberg J. Int’l L. (HJIL) 399, 400–401 (2006). For further discussion on the influence of the European Union and the European Court of Human Rights on domestic judicial review, see Alec Stone Sweet, A Cosmopolitan Legal Order; Constitutional Pluralism and Rights Adjudication in Europe, 1 Global Constitutionalism 53–90 (2012) [hereinafter Sweet, Cosmopolitan Legal Order ]; Alec Stone Sweet, Trustee Courts and the Judicialization of International Regimes, J. L. & Courts 61–88 (2013) [hereinafter Sweet, Trustee Courts ].

See Zurn, et al., supra note 60.

Alexander M. Bickel, The Least Dangerous Branch 16–17 (2d ed. 1986). See also Robert A. Dahl, Decision-making in a Democracy: The Supreme Court as a National Policymaker , 6 J. Pub . L. 279 (1957); Larry D. Kramer, The People Themselves: Popular Constitutionalism and Judicial Review (2004); Mark Graber, The Nonmajoritarian Difficulty: Legislative Deference to the Judiciary , 7 Stud. Am. Pol. Dev. 35 (1993); Michael Klarman, Rethinking the Civil Rights and Civil Liberties Revolutions , 82 Va. L. Rev. 1 (1996); 1 Mark Tushnet, Taking the Constitution away from the Courts (1999); Jeremy Waldron, The Core Case Against Judicial Review , 115 Yale L.J. 1346 (2005); Keith Whittington, “ Interpose Your Friendly Hand”: Political Supports for the Exercise of Judicial Review by the United States Supreme Court , 99 Am. Pol. Sci. Rev. 583 (2005).

Hirschl, supra note 84.

Robin West, Tragic Rights: The Rights Critique in the Age of Obama , 53 Wm. & Mary L. Rev . 714, 720–721 (2011).

Menachem Mautner, Law and the Culture of Israel (2011).

Frances Olsen, Statutory Rape: A Feminist Critique of Rights Analysis , 63 Tex. L. Rev . 387; Patricia Williams , The Alchemy of Race and Rights (1991); Richard Delgado, The Ethereal Scholar: Does Critical Legal Studies Have What Minorities Want? , 22 Harv . C.R.-C.L. Rev . 301 (1987); Kimberlé Crenshaw, Race , Reform and Retrenchment: Transformation and Legitimation in Antidiscrimination La w, 101 Harv . L. Rev . 1331 (1988).

West, supra note 119, at 720–721; Peter Gabel, The Phenomenology of Rights-Consciousness and the Pact of the Withdrawn Selves , 62 Tex. L. Rev . 1563, 1569 (1984).

Samuel Moyn , A Powerless Companion: Human Rights in the Age of Neoliberalism , 77 Law & Contemp. Probs. 147, 149 (2014).

Garcia H. Alvia, Looking Beyond the Constitution: The Social and Ecological Function of Property , in Comparative Constitutional Law in Latin America 173 (Rosalind Dixon & Tom Ginsburg eds., 2017).

Javier Couso, The “Economic Constitutions” of Latin America: Between Free Markets and Socioeconomic Rights , in Comparative Constitutional Law in Latin America 343 (Rosalind Dixon & Tom Ginsburg eds., 2017).

David Kennedy’s critique of human rights assembles the identitarian concerns with global redistributive effects: “I worry that the international human rights movement can occupy the field, crowding out other ways of pursuing social justice and other emancipatory vocabularies that may sometimes be more effective, such as religious vocabularies, local traditions, and tools focused more directly on economic justice or social solidarity. There are lots of ways to pursue social justice. Human rights is but one, and not always the most appropriate. I worry, moreover, that human rights, given its origins, its spokesmen, its preoccupations, has often been a vocabulary of the centre against the periphery. A vehicle for empire rather than an antidote to empire.” David Kennedy, Reassessing International Humanitarianism: The Dark Sides , in International Law and Its Others 131, 133 (2006).

Makau Mutua, Human Rights: A Political and Cultural Critique 157 (2008). For the analysis of critiques of international human rights, see Ben Golder, Beyond Redemption? Problematising the Critique of Human Rights in Contemporary International Legal Thought , 2 London Rev. Int’l L. 77 (2014).

See, e.g. , Fritz Scharpf, Monetary Union, Fiscal Crisis and the Disabling of Democratic Accountability , in Politics in the Age of Austerity 108 (Armin Schäfer & Wolfgang Streeck eds., 2013).

Benedict Kingsbury, Sovereignty and Inequality , 9 Eur. J. Int’l L. 599, 600 (1998).

Benvenisti & Downs, supra note 107; Eyal Benvenisti & George W. Downs, The Empire’s New Clothes: Political Economy and the Fragmentation of International Law, 60 Stan. L. Rev . 595 (2007).

Armin Bogdandy et al., (Eds.,) The Exercise of Public Authority by International Institutions: Advancing International Institutional Law (2010).

The key resolutions within this framework are: Res. 1267, U.N. Doc. S/RES/1267 (establishing the Sanctions Committee: ¶ [6]); Res. 1333, U.N. Doc. S/RES/1333; S.C. Res. 1390, U.N. S.C.O.R., 57th Sess., 4452d Mtg., U.N. Doc. S/RES/1390 (Jan. 16, 2002) (Resolution 1390).

The Kadi judgments include decisions of the European Court of First Instance (Kadi v. Council of the European Union (T-315/01) [2005] E.C.R. II-3659 (Court of First Instance) ( Kadi I )); European Court of Justice (Kadi v. Council of the European Union (C-402/05 P, C-415/05 P) [2008] E.C.R. I-6351, EU:C:2008:461 ( Kadi II )), the General Court of the European Union (Kadi v. European Commission (T-85/09) [2010] E.C.R. II-5177, EU:T:2010:418 (General Court) ( Kadi III )), and European Court of Justice (European Commission v. Kadi (C-584/10 P, C-593/10 P, and C-595/10 P, EU:C:2013:518 (July 18, 2013), at 2 ( Kadi IV )). For a general overview of the Kadi litigation, see Grainne de Burca, The European Court of Justice and the International Legal Order After Kadi, 51 Harv. Int’l L.J . 1, 1–2 (2010).

The CFI in Kadi I, supra note 133, ¶ 258.

Kadi II, supra note 133, ¶¶ 369–372.

Kadi III, supra note 133, ¶ 135.

Antonios Tzanakopoulos, Judicial Dialogue in Multi-Level Governance: The Impact of the Solange Argument, in The Practice of International and National Courts and the (De-)Fragmentation of International Law 185 (Ole Kristian Fauchald & André Nollkaemper eds., 2012) [originally published 2009], available at https://ssrn.com/abstract=1407079 .

Kadi IV, supra note 133, at 66–67.

See, e.g. , de Búrca, supra note 133, at 2; Fassbender, supra note 63, at 333; Riccarso Pavoni, Freedom to Choose the Legal Means for Implementing UN Security Council Resolutions and the ECJ Kadi Judgement: A Misplaced Argument Hindering the Enforcement of International Law in the EC , 28(1) Y.B. Eur . L. 627, 630 (2009); Armin von Bogdandy, Guest Editorial: Let’s Hunt Zombies , ESIL Newsletter , Sept. 2009, at 2; Horst Krenzler & Oliver Landwehr, “A New Legal Order of International Law”: On the Relationship Between Public International Law and European Union Law After Kadi 1004, 1022 (2011).

Devika Hovell, Kadi: King-Slayer or King-Maker? The Shifting Allocation of Decision Making Power Between the UN Security Council and Courts , 79 Mod. L. Rev. 147, 148 (2016).

For an analogy with Medellin, see J. H. H. Weiler, Editorial , 19 E ur. J. Int’l L. 895 (2008).

Benvenisti & Downs, supra note 57, at 64, offer an additional wry explanation: “Faced with the prospect that their judicial space would continue to shrink as the result of an ever greater proportion of domestic regulatory policy being determined by international institutions and increased competition from international tribunals, it would have been surprising if the national courts had not felt a sense of jeopardy regarding their ability to fulfil their traditional constitutional role. . . . Better insulated than their political branches from both domestic and foreign special-interest pressure, the courts could pressurize their governments to seek legislative approval of their actions, or block certain policies as incompatible with constitutional and international legal texts.”

For further discussion, see Rosalind Dixon & Alexandra Huneeus, Constitutional Lawyers and the Inter-American Court’s Varied Authority , 79 Law & Contemp. Probs. 179 (2016).

On September 10, 2012, Venezuela denounced the American Convention of Human Rights to remove itself from the oversight of the Inter-American Court of Human Rights. Chavez’s challenger had promised to rescind the denouncement, but his ballot loss means Venezuela is definitely leaving the Court.

Sentencia emitida el 26 de Septiembre del 2001 por la Corte Suprema de Justicia de la Nación en relación con los autos Menem /c Editorial Perfil SA y otros.

Inter-American Court of Human Rights, Fontevecchia and D’Amico v. Argentina, Merits, Reparations and Costs, Judgment of Nov. 29, 2011, Inter-Am. Ct. H.R. (ser. C) No. 238 (2011).

Corte Suprema de Justicia de la Nación [CSJN] [National Supreme Court of Justice], 2/14/2017, “ Ministerio de Relaciones Exteriores y Culto s/ informe sentencia dictada en el caso ‘Fontevecchia y D’Amico vs. Argentina’ por la Corte Interamericana de Derechos Humanos” (Arg.) [translation by author of blog], http://www.iconnectblog.com/2017/03/judicial-backlash-interamerican/ .

Judgment of Oct. 23, 2014, No. 238 ¶ 2.1.

Id . ¶ 3.1.

Id . ¶ 3.5.

G. Palombella, Interlegality and Justice (forthcoming 2018).

H.C.J. 7957/04 Mara’abe v. Prime Minister of Israel, [2005].

Internationale Handelsgesellschaft mbH v. Einfuhr- und Vorratsstelle für Getreide und Futtermittel [Internationale Handelsgesellschaft mbH v. Import and storage center for cereals and animal feed] [1974] 2 C.M.L.R. 540 ( Solange ¶ 23) (Ger.).

German Federal Constitutional Court, BVerfGE 89, 155 (Maastricht) Oct. 12, 1993 (Maastricht, 33 I.L.M. 388, 395); Gerhard Wegen & Christopher Kuner, Germany: Federal Constitutional Court Decision Concerning the Maastricht Treaty , 33(2) Int’l Legal Materials 388 (1994).

German Federal Constitutional Court, Judgment of June 30, 2009, 2 BvE 2/08 (Lisbon Judgment) ¶ 233 (Ger.). For further discussion, see Julian Arato, A Preemptive Strike Against European Federalism: The Decision of the Bundesverfassungsgericht Concerning the Treaty of Lisbon, Eur . J. Int'l Law : Talk ! (Oct. 9, 2010) available at https://www.ejiltalk.org/a-preemptive-strike-against-european-federalism-the-decision-of-the-bundesverfassungsgericht-concerning-the-treaty-of-lisbon/ .

Lisbon Judgment, 2 BvE ¶ 339. In later cases the BVG further clarified the meaning of constitutional identity. See, e.g. , German Federal Constitutional Court, BVerfGE, 1 BvR 256/08 (Data Retention) Mar. 2, 2010 (Ger.). The court reviewed the EU Data-retention directive and held that individual freedom dictates that not every piece of communication may be recorded and registered in its totality paving the way to the unconstitutionality of an act of parliament that implemented the EU Data-Retention directive; German Federal Constitutional Court, BVerfGE 129 (E.F.S.F.) Sept. 7, 2011 (Ger.) (the Bundestag may not have its budgetary autonomy limited through agreements accepting financial liability for third parties of which the effects are difficult to calculate).

Lisbon Judgment, 2 BvE ¶ 226(c).

Id. ¶ 262(a).

“. . . On the European level, the Council is not a second chamber as it would be in a federal state but the representative body of masters of the Treaties; correspondingly, it is not constituted according to proportional representation but according to the image of the equality of states. As a representative body of the peoples that is directly elected by the citizens of the Union, the European Parliament is an additional independent source of democratic legitimisation. Id. ¶ 271

Id. ¶ 249(cc).

Id. ¶ 216(c).

The Treaty on the European Union (TEU) as amended by the Lisbon Treaty gave considerable weight to the concept of national identity. Article 4(2) TEU reads as follows: “The Union shall respect the equality of Member States before the Treaties as well as their national identities, inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government. It shall respect their essential State functions, including ensuring the territorial integrity of the State, maintaining law and order and safeguarding national security. In particular, national security remains the sole responsibility of each Member State.”

Ref. No. K 18/04 (Constitutionality of the Accession Treaty), available at http://trybunal.gov.pl/fileadmin/content/omowienia/K_18_04_GB.pdf .

Constitutional Tribunal of Poland, Judgment of Nov. 24, 2010, Ref. No. K 32/09 (Constitutionality of the Treaty of Lisbon), available at http://trybunal.gov.pl/fileadmin/content/omowienia/K_32_09_EN.pdf .

And see, in the same sense, Constitutional Tribunal of Poland, Judgment of Nov. 16, 2011, Ref. No. SK 45/09 (Constitutionality of the Council Regulation (EC) No. 44/2001 of December 22, 2000, on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters), available at http://trybunal.gov.pl/fileadmin/content/omowienia/SK_45_09_EN.pdf .

Constitutional Court of the Czech Republic, Judgment of Nov. 26, 2008, Pl. ÚS 19/08 (Treaty of Lisbon I), available at http://www.usoud.cz/en/decisions/20081126-pl-us-1908-treaty-of-lisbon-i-1/ .

Constitutional Court of the Czech Republic, Judgment of Nov. 3, 2009, Pl. ÚS 29/09 (Treaty of Lisbon II), available at http://www.usoud.cz/en/decisions/20091103-pl-us-2909-treaty-of-lisbon-ii/?amp%3BcHash=eedba7ca14d226b879ccaf91a6dcb276&cHash=16b82d574cacc56368ac69b33634b41d . “However, the Constitutional Court assumes that such a situation can occur only in quite exceptional cases; these could include, in particular, abandoning the identity of values and, as already cited, exceeding of the scope of conferred competences.”

Spanish Constitutional Court, Declaration 1/2004 on the Constitutionality of the Draft Constitutional Treaty of December 13, 2004 (DTC 1/2004), available at http://www.tribunalconstitucional.es/es/jurisprudencia/restrad/Paginas/DTC122004en.aspx . Cf. Spanish Constitutional Court, Judgment 26/2014 of Feb. 13, 2014 (STC 26/2014, Melloni ), available at http://www.tribunalconstitucional.es/es/jurisprudencia/restrad/Paginas/DTC122004en.aspx .

Hirst v. United Kingdom (No. 2) 2005-IX, 42 E.H.R.R. 41 (Hirst GC); Scoppola v. Italy (No. 3), 56 E.H.R.R. 19 (Scoppola (No. 3) GC).

R v. Horncastle [2009] U.K.S.C. 14, Recital 11, https://www.supremecourt.uk/decided-cases/docs/uksc_2009_0073_judgment.pdf .

The Supreme Court of the United Kingdom, R (on the application of Chester) (Appellant) v. Secretary of State for Justice (Respondent) and McGeoch (AP) (Appellant) v. Lord President of the Council and Another (Respondents) (Scotland) [2013] U.K.S.C. 63 (emphasis added), available at https://www.supremecourt.uk/decided-cases/docs/UKSC_2012_0151_Judgment.pdf .

Alan Travis, Up to 100 Prisoners on Short Sentences to Be Given Right to Vote , The Guardian , Nov. 2, 2017.

For further analysis, see, e.g. , Steve Foster, Reluctantly Restoring Rights: Responding to the Prisoner’s Right to Vote , 9(3) Hum. Rts. L. Rev. 489 (2009); Ed Bates, Analyzing the Prisoner Voting Saga and the British Challenge to Strasburg , 14 Hum. Rts. L. Rev . 503 (2014). Despite their clear controversy the British and the European courts endorse a rather limited conception of democracy that emphasizes voting rights. For an alternative conception and critique of both positions, see Peter Ramsay, Faking Democracy with Prisoners’ Voting Rights (2013).

Lord Hoffman, The Universality of Human Rights (Judicial Studies Board Annual Lecture, March 19, 2009), available at http://www.brandeis.edu/ethics/pdfs/internationaljustice/biij/BIIJ2013/hoffmann.pdf .

German Federal Constitutional Court, Judgment of Dec. 15, 2015, 2 BvR 2735/14.

EU Observer , Sept. 10, 2008, https://euobserver.com/opinion/26714 .

Cases C-404/15 & C-659/15 PPU, Aranyosi Căldăru, 2016 E.C.J. (Grand Chamber) 198 (Apr. 5, 2016) EU:C:2016:198.

Id ., at §§ 78, 82

Mathias Hong, Case Note: Human Dignity, Identity Review of the European Arrest Warrant and the Court of Justice as a Listener in the Dialogue of Courts: Solange-III and Aranyosi, 12 Eur. Const. Rev. 549, 561–562 (2016).

Judgment of the Constitutional Court of the Russian Federation of July 14, 2015, No. 21-П/2015 (relevant paragraphs are translated in the Interim Opinion on the amendments to the Federal Constitutional Law on the Constitutional Court of the Russian Federation); Opinion No. 832/2015 of January 20, 2016, CDL-REF (2016) 006, available at http://www.venice.coe.int/webforms/documents/?pdf=CDL-AD(2016)005-e .

Challenges of Implementation of the Convention on Human Rights, Paper presented at the conference on Enhancing National Mechanisms for Effective Implementation of the European Convention on Human Rights, St Petersburg, Oct. 22–23, 2015, at 1–2, www.ksrf.ru/en/News/.../Report%20for%2022%20October.docx .

A.I.R. 1993 S.C. 477, 1992 Supp. 2 S.C.R. 454 (Nov. 16, 1992), https://indiankanoon.org/doc/1363234/ .

S.R. Bommai v. Union of India, 1994 A.I.R. 1918, 1994 S.C.C. (3)1 (Mar. 11, 1994), https://indiankanoon.org/doc/60799/ .

Hong Kong Court of Final Appeal, Director of Immigration v. Chong Fung Yuen [2001] H.K.C.F.A. 48; [2001] 2 H.K.L.R.D. 533; (2001) 4 H.K.C.F.A.R. 211; FACV 26/2000 (July 20, 2001), available at http://www.hklii.hk/cgi-bin/sinodisp/eng/hk/cases/hkcfa/2001/48.html?stem=&synonyms=&query=title(The%20Director%20of%20Immigration%20and%20Chong%20Fung%20Yuen ; Hong Kong Court of Final Appeal, Ng Ka Ling and Another v. Director of Immigration [1999] H.K.C.F.A. 72; [1999] 1 H.K.L.R.D. 315; (1999) 2 H.K.C.F.A.R. 4; [1999] 1 H.K.C. 291; FACV 14/1998 (Jan. 29, 1999), available at http://www.hklii.hk/eng/hk/cases/hkcfa/1999/72.html .

Kenji Yoshino & Michel Kavey, Modest Claims and Modest Contributions: Sexual Orientation in Comparative Constitutional Law , in The Oxford Handbook of Comparative Constitutional Law 1090–1091 (András Sajó & Michel Rosenfeld eds., 2012).

Constitutional Tribunal of Poland, Judgment of May 11, 2005, Ref. No. K 18/04 (Constitutionality of the Accession Treaty).

Case: 1881-10-INA, Chile (Constitutional Tribunal) Prohibition of same-sex marriage 2011 (Nov. 3, 2011).

W v. Registrar of Marriages [2013] 3 H.K.L.R.D. 90 C.F.A. ¶187.

Id. ¶¶ 187–188.

Constitutional Court (Const. Ct.), [20–2(A) K.C.C.R. 696, 2007 Hun-Ka17·21, 2008 Hun-Ka7·26, 2008 Hun-Ba21·47 (consol.), Oct. 30, 2008) (S. Kor.) [hereinafter Adultery case], available at http://english.ccourt.go.kr/cckhome/eng/decisions/casesearch/caseSearch.do#none .

Constitutional Court (Const. Ct.), [22-1(A) KCCR 36, 2008Hun-Ka23 (Feb. 25, 2010] (S. Kor.) [hereinafter Capital Punishment case], available at http://english.ccourt.go.kr/cckhome/eng/decisions/casesearch/caseSearch.do#none .

Constitutional Court (Const. Ct.), (16-2(A) KCCR 141, 2002Hun-Ka1 (Aug. 26, 2004) (S. Kor.) [hereinafter Conscientious Objection of Military Service case], available at http://english.ccourt.go.kr/cckhome/eng/decisions/casesearch/caseSearch.do#none .

Adultery case, supra note 197.

Conscientious Objection of Military Service case, supra note 199.

Michel Rosenfeld, The Identity of the Constitutional Subject: Selfhood, Citizenship, Culture, and Community (2010).

There is, of course, much to qualify this statement. There are many international regimes, notably in the economic area, which overlook, compromise, or even damage the interests and claims for justice of many people and groups. Universal justice, however it may be defined, is still far from being achieved.

Email alerts

Citing articles via.

• I·CONnect
• Recommend to your Library

Affiliations

• Online ISSN 1474-2659
• Print ISSN 1474-2640
• Copyright © 2024 New York University School of Law and Oxford University Press
• About Oxford Academic
• Publish journals with us
• University press partners
• What we publish
• New features  
• Open access
• Institutional account management
• Rights and permissions
• Get help with access
• Accessibility
• Advertising
• Media enquiries
• Oxford University Press
• Oxford Languages
• University of Oxford

Oxford University Press is a department of the University of Oxford. It furthers the University's objective of excellence in research, scholarship, and education by publishing worldwide

• Copyright © 2024 Oxford University Press
• Cookie settings
• Cookie policy
• Privacy policy
• Legal notice

This Feature Is Available To Subscribers Only

Sign In or Create an Account

This PDF is available to Subscribers Only

For full access to this pdf, sign in to an existing account, or purchase an annual subscription.

ArtIII.S1.2 Historical Background on Judicial Review

Article III, Section 1:

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.

One key feature of the federal judicial power is the power of judicial review, the authority of federal courts to declare that federal or state government actions violate the Constitution. While judicial review is now one of the distinctive features of United States constitutional law, the Constitution does not expressly grant federal courts power to declare government actions unconstitutional. However, the historical record from the Founding and the early years of the Republic suggests that those who framed and ratified the Constitution were aware of judicial review, and that some favored granting courts that power.

The concept of judicial review was already established at the time of the Founding. The Privy Council had employed a limited form of judicial review to review colonial legislation and its validity under the colonial charters. 1 Footnote Julius Goebel , Antecedents and Beginnings to 1801, History of the Supreme Court of the United States 60–95 (1971) . There were several instances known to the Framers of state court invalidation of state legislation as inconsistent with state constitutions. 2 Footnote Id. at 96–142 . Practically all of the Framers who expressed an opinion on the issue in the Convention appear to have assumed and welcomed the existence of court review of the constitutionality of legislation. 3 Footnote 1 Max Farrand , The Framing of the Constitution of the United States 97–98 (1913) (Gerry), 109 (King); 2 Max Farrand , The Framing of the Constitution of the United States 28 (1913) (Morris and perhaps Sherman), 73 (Wilson), 75 (Strong, but the remark is ambiguous), 76 (Martin), 78 (Mason), 79 (Gorham, but ambiguous), 80 (Rutledge), 92–93 (Madison), 248 (Pinckney), 299 (Morris), 376 (Williamson), 391 (Wilson), 428 (Rutledge), 430 (Madison), 440 (Madison), 589 (Madison); 3 Max Farrand , The Framing of the Constitution of the United States 220 (1913) (Martin). The only expressed opposition to judicial review came from Mercer with a weak seconding from Dickinson. Mr. Mercer . . . disapproved of the Doctrine that the Judges as expositors of the Constitution should have authority to declare a law void. He thought laws ought to be well and cautiously made, and then to be uncontroulable. 2 Max Farrand , The Framing of the Constitution of the United States 298 (1913) . Mr. Dickinson was strongly impressed with the remark of Mr. Mercer as to the power of the Judges to set aside the law. He thought no such power ought to exist. He was at the same time at a loss what expedient to substitute. Id. at 299 . Of course, the debates in the Convention were not available when the state ratifying conventions acted, so that the delegates could not have known these views about judicial review in order to have acted knowingly about them. Views, were, however, expressed in the ratifying conventions recognizing judicial review, some of them being uttered by Framers. 2 J. Elliot , Debates in the Several State Conventions on the Adoption of the Federal Constitution 131 (1836) (Samuel Adams, Massachusetts), 196–97 (Ellsworth, Connecticut), 348, 362 (Hamilton, New York): 445–46. 478 (Wilson, Pennsylvania); 3 J. Elliot , Debates in the Several State Conventions on the Adoption of the Federal Constitution 324–25, 539 , 541 (1836) (Henry, Virginia), 480 (Mason, Virginia), 532 (Madison, Virginia), 570 (Randolph, Virginia); 4 J. Elliot , Debates in the Several State Conventions on the Adoption of the Federal Constitution 71 (1836) (Steele, North Carolina), 156–57 (Davie, North Carolina). In the Virginia convention, Chief Justice John Marshall observed if Congress were to make a law not warranted by any of the powers enumerated, it would be considered by the judge as an infringement of the Constitution which they are to guard . . . They would declare it void . . . . To what quarter will you look for protection from an infringement on the constitution, if you will not give the power to the judiciary? There is no other body that can afford such a protection. 3 id. at 553–54 . Both Madison and Hamilton similarly asserted the power of judicial review in their campaign for ratification. The Federalist No. 39 (James Madison); id. Nos. 78, 81 (Alexander Hamilton). The persons supporting or at least indicating they thought judicial review existed did not constitute a majority of the Framers, but the absence of controverting statements, with the exception of the Mercer-Dickinson comments, indicates at least acquiescence if not agreements by the other Framers. Alexander Hamilton argued in favor of the doctrine in the Federalist Papers . 4 Footnote The Federalist No. 78 (Alexander Hamilton) ( The interpretation of the laws is the proper and peculiar province of the courts. A constitution, is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the constitution ought to be preferred to the statute, the intention of the people to the intention of their agents. ). In enacting the Judiciary Act of 1789, Congress explicitly provided for the exercise of the power, 5 Footnote In enacting the Judiciary Act of 1789, 1 Stat. 73 , Congress chose not to vest federal question jurisdiction in the federal courts but to leave to the state courts the enforcement of claims under the Constitution and federal laws. In Section 25 of the Judiciary Act (1 Stat. 85), Congress provided for review by the Supreme Court of final judgments in state courts (1) where is drawn in question the validity of a treaty or statute of, or an authority exercised under the United States, and the decision is against their validity; (2) where is drawn in question the validity of a statute of, or an authority exercised under any State, on the ground of their being repugnant to the constitution, treaties or laws of the United States, and the decision is in favor of their validity; or (3) where is drawn in question the construction of any clause of the constitution, or of a treaty, or statute of, or commission held under the United States, and the decision is against the title, right, privilege or exemption specially set up or claimed thereunder. § 25, 1 Stat. 73, 85–86 . and in other legislative debates questions of constitutionality and of judicial review were prominent. 6 Footnote See in particular the debate on the President’s removal powers, discussed in ArtII.S2.C2.3.15.1 Overview of Removal of Executive Branch Officers with statements excerpted in R. Berger , Congress v. The Supreme Court 144–150 (1969) . Debates on the Alien and Sedition Acts and on the power of Congress to repeal the Judiciary Act of 1801 similarly saw recognition of judicial review of acts of Congress. C. Warren , in id. at 107–12 4. Early Supreme Court Justices seem to have assumed the existence of judicial review. 7 Footnote Thus, the Justices on circuit refused to administer a pension act on the grounds of its unconstitutionally, see Hayburn’s Case , 2 U.S. (2 Dall.) 409 (1792) , and ArtIII.S1.4.4 Inherent Power to Issue Judgments . Chief Justice Jay and other Justices wrote that the imposition of circuit duty on Justices was unconstitutional, although they never mailed the letter in Hylton v. United States , 3 U.S. (3 Dall.) 171 (1796) , a feigned suit, the constitutionality of a federal law was argued before the Justices and upheld on the merits, in Ware v. Hylton , 3 U.S. (3 Dall.) 199 (1796) , a state law was overturned, and dicta in several opinions asserted the principle. See Calder v. Bull , 3 U.S. (3 Dall.) 386, 399 (1798) (Justice Iredell), and several Justices on circuit, quoted in Julius Goebel, supra note 1 , at 589–592.

The Supreme Court first formally embraced the doctrine of judicial review in the 1803 case Marbury v. Madison . 8 Footnote 5 U.S. (1 Cr.) 137 (1803) . Since Marbury , judicial review has become a core feature of American constitutional law. 9 Footnote See ArtIII.S1.3 Marbury v. Madison and Judicial Review . While the doctrine is well established, some legal commentators have criticized judicial review, and some who support it debate its doctrinal basis or how it should be applied. 10 Footnote See, e.g. , G. Gunther , Constitutional Law 1–38 (12th ed. 1991) ; For expositions on the legitimacy of judicial review, see L. Hand , The Bill of Rights (1958) ; H. Wechsler , Principles, Politics, and Fundamental Law: Selected Essays 1–15 (1961) ; A. Bickel , The Least Dangerous Branch: The Supreme Court at the Bar of Politics 1–33 (1962) ; R. Berger , Congress v. The Supreme Court (1969) . For an extensive historical attack on judicial review, see 2 W. Crosskey , Politics and the Constitution in the History of the United States chs. 27–29 (1953) , with which compare Hart, Book Review , 67 Harv. L. Rev. 1456 (1954) . A brief review of the ongoing debate on the subject, in a work that now is a classic attack on judicial review, is Westin, Introduction: Charles Beard and American Debate Over Judicial Review , 1790–1961 , in C. Beard , The Supreme Court and the Constitution 1–34 (1962 reissue of 1938 ed.) , and bibliography at 133–149. While much of the debate focuses on judicial review of acts of Congress, the similar review of state acts has occasioned much controversy as well.

•   Jump to essay-1 Julius Goebel , Antecedents and Beginnings to 1801, History of the Supreme Court of the United States 60–95 (1971) .
•   Jump to essay-2 Id. at 96–142 .
•   Jump to essay-3 1 Max Farrand , The Framing of the Constitution of the United States 97–98 (1913) (Gerry), 109 (King); 2 Max Farrand , The Framing of the Constitution of the United States 28 (1913) (Morris and perhaps Sherman), 73 (Wilson), 75 (Strong, but the remark is ambiguous), 76 (Martin), 78 (Mason), 79 (Gorham, but ambiguous), 80 (Rutledge), 92–93 (Madison), 248 (Pinckney), 299 (Morris), 376 (Williamson), 391 (Wilson), 428 (Rutledge), 430 (Madison), 440 (Madison), 589 (Madison); 3 Max Farrand , The Framing of the Constitution of the United States 220 (1913) (Martin). The only expressed opposition to judicial review came from Mercer with a weak seconding from Dickinson. Mr. Mercer . . . disapproved of the Doctrine that the Judges as expositors of the Constitution should have authority to declare a law void. He thought laws ought to be well and cautiously made, and then to be uncontroulable. 2 Max Farrand , The Framing of the Constitution of the United States 298 (1913) . Mr. Dickinson was strongly impressed with the remark of Mr. Mercer as to the power of the Judges to set aside the law. He thought no such power ought to exist. He was at the same time at a loss what expedient to substitute. Id. at 299 . Of course, the debates in the Convention were not available when the state ratifying conventions acted, so that the delegates could not have known these views about judicial review in order to have acted knowingly about them. Views, were, however, expressed in the ratifying conventions recognizing judicial review, some of them being uttered by Framers. 2 J. Elliot , Debates in the Several State Conventions on the Adoption of the Federal Constitution 131 (1836) (Samuel Adams, Massachusetts), 196–97 (Ellsworth, Connecticut), 348, 362 (Hamilton, New York): 445–46. 478 (Wilson, Pennsylvania); 3 J. Elliot , Debates in the Several State Conventions on the Adoption of the Federal Constitution 324–25, 539 , 541 (1836) (Henry, Virginia), 480 (Mason, Virginia), 532 (Madison, Virginia), 570 (Randolph, Virginia); 4 J. Elliot , Debates in the Several State Conventions on the Adoption of the Federal Constitution 71 (1836) (Steele, North Carolina), 156–57 (Davie, North Carolina). In the Virginia convention, Chief Justice John Marshall observed if Congress were to make a law not warranted by any of the powers enumerated, it would be considered by the judge as an infringement of the Constitution which they are to guard . . . They would declare it void . . . . To what quarter will you look for protection from an infringement on the constitution, if you will not give the power to the judiciary? There is no other body that can afford such a protection. 3 id. at 553–54 . Both Madison and Hamilton similarly asserted the power of judicial review in their campaign for ratification. The Federalist No. 39 (James Madison); id. Nos. 78, 81 (Alexander Hamilton). The persons supporting or at least indicating they thought judicial review existed did not constitute a majority of the Framers, but the absence of controverting statements, with the exception of the Mercer-Dickinson comments, indicates at least acquiescence if not agreements by the other Framers.
•   Jump to essay-4 The Federalist No. 78 (Alexander Hamilton) ( The interpretation of the laws is the proper and peculiar province of the courts. A constitution, is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the constitution ought to be preferred to the statute, the intention of the people to the intention of their agents. ).
•   Jump to essay-5 In enacting the Judiciary Act of 1789, 1 Stat. 73 , Congress chose not to vest federal question jurisdiction in the federal courts but to leave to the state courts the enforcement of claims under the Constitution and federal laws. In Section 25 of the Judiciary Act (1 Stat. 85), Congress provided for review by the Supreme Court of final judgments in state courts (1) where is drawn in question the validity of a treaty or statute of, or an authority exercised under the United States, and the decision is against their validity; (2) where is drawn in question the validity of a statute of, or an authority exercised under any State, on the ground of their being repugnant to the constitution, treaties or laws of the United States, and the decision is in favor of their validity; or (3) where is drawn in question the construction of any clause of the constitution, or of a treaty, or statute of, or commission held under the United States, and the decision is against the title, right, privilege or exemption specially set up or claimed thereunder. § 25, 1 Stat. 73, 85–86 .
•   Jump to essay-6 See in particular the debate on the President’s removal powers, discussed in ArtII.S2.C2.3.15.1 Overview of Removal of Executive Branch Officers with statements excerpted in R. Berger , Congress v. The Supreme Court 144–150 (1969) . Debates on the Alien and Sedition Acts and on the power of Congress to repeal the Judiciary Act of 1801 similarly saw recognition of judicial review of acts of Congress. C. Warren , in id. at 107–12 4.
•   Jump to essay-7 Thus, the Justices on circuit refused to administer a pension act on the grounds of its unconstitutionally, see Hayburn’s Case , 2 U.S. (2 Dall.) 409 (1792) , and ArtIII.S1.4.4 Inherent Power to Issue Judgments . Chief Justice Jay and other Justices wrote that the imposition of circuit duty on Justices was unconstitutional, although they never mailed the letter in Hylton v. United States , 3 U.S. (3 Dall.) 171 (1796) , a feigned suit, the constitutionality of a federal law was argued before the Justices and upheld on the merits, in Ware v. Hylton , 3 U.S. (3 Dall.) 199 (1796) , a state law was overturned, and dicta in several opinions asserted the principle. See Calder v. Bull , 3 U.S. (3 Dall.) 386, 399 (1798) (Justice Iredell), and several Justices on circuit, quoted in Julius Goebel, supra note 1 , at 589–592.
•   Jump to essay-8 5 U.S. (1 Cr.) 137 (1803) .
•   Jump to essay-9 See ArtIII.S1.3 Marbury v. Madison and Judicial Review .
•   Jump to essay-10 See, e.g. , G. Gunther , Constitutional Law 1–38 (12th ed. 1991) ; For expositions on the legitimacy of judicial review, see L. Hand , The Bill of Rights (1958) ; H. Wechsler , Principles, Politics, and Fundamental Law: Selected Essays 1–15 (1961) ; A. Bickel , The Least Dangerous Branch: The Supreme Court at the Bar of Politics 1–33 (1962) ; R. Berger , Congress v. The Supreme Court (1969) . For an extensive historical attack on judicial review, see 2 W. Crosskey , Politics and the Constitution in the History of the United States chs. 27–29 (1953) , with which compare Hart, Book Review , 67 Harv. L. Rev. 1456 (1954) . A brief review of the ongoing debate on the subject, in a work that now is a classic attack on judicial review, is Westin, Introduction: Charles Beard and American Debate Over Judicial Review , 1790–1961 , in C. Beard , The Supreme Court and the Constitution 1–34 (1962 reissue of 1938 ed.) , and bibliography at 133–149. While much of the debate focuses on judicial review of acts of Congress, the similar review of state acts has occasioned much controversy as well.

Working to make government more effective

• Accessiblility
• Media centre
• Partner with us

Judicial review

What is judicial review?

What is judicial review? 

Judicial review is a kind of court case, in which someone (the “claimant”) challenges the lawfulness of a government decision.  

This can be the decision of a central government department, another government body such as a regulator, a local authority, or certain other bodies when they are performing a public function. 

If the claimant wins, then the government decision can be declared unlawful, or quashed. That will sometimes mean that the decision has to be made again. Alternatively, the court can order the government to do or not do something. 

The law which applies in cases of this kind is sometimes called “public law” or “administrative law”. In very important cases which concern fundamental rights or the relationships between democratic institutions, it is sometimes called “constitutional law”. 

On what grounds can a government decision be overturned by the courts? 

There are three main grounds of judicial review: illegality, procedural unfairness, and irrationality.  

A decision can be overturned on the ground of illegality if the decision-maker did not have the legal power to make that decision, for instance because Parliament gave them less discretion than they thought. 

A decision can be overturned on the ground of procedural unfairness if the process leading up to the decision was improper. This might, for instance, be because a decision-maker who is supposed to be impartial was biased. Or it might be because a decision-maker who is supposed to give someone the chance to make representations before deciding on their case failed to do so. 

A decision can be overturned on the ground of irrationality if it is so unreasonable that no reasonable person, acting reasonably, could have made it. This is a very high bar to get over, and it is rare for the courts to grant judicial review on this basis.  

In addition, a decision can be overturned if a public authority has acted in a way which is incompatible with human rights that are given effect by the Human Rights Act 1998. There is one exception to this, though: if the public authority is merely doing what parliament told it to do, then it is not acting unlawfully even if it does act incompatibly with one of those rights. 

A judge cannot quash or declare unlawful a government decision merely on the basis that the judge would have made a different decision, or that the decision was wrong.  

Can the courts overturn legislation in judicial review cases? 

The courts cannot overturn or quash primary legislation passed by parliament. This is because, in the UK constitution, parliament is sovereign. 

The courts can overturn secondary legislation, made by ministers, on the normal grounds of judicial review.  

How many judicial review cases are there, and how many are successful? 

In 2018, some 3,597 claims for judicial review were lodged 4 Ministry of Justice, Civil justice stats table,  https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/806900/civil-Justice-stats-main-tables-Jan-Mar_2019.x…  (commenced) in the High Court. However, most cases do not get very far, because a claimant must convince the court that they have an “arguable” case in order to be granted permission to proceed to a full hearing.  

Only 184 cases, or about 5% of total cases commenced, reached a full oral hearing in 2018. The rest were mostly refused permission to proceed, withdrawn, or resolved out of court. 

Of the cases that did proceed to a full hearing, the government body under challenge won 50% and lost 40%. The other cases were mostly withdrawn or have not yet reached a conclusion. 

Related content

Boris johnson should not pick a fight with the courts to burnish his brexit credentials.

The government should not be flirting with the idea of an ugly fight with the courts to get around legislation to stop a no-deal Brexit.

What support are MPs given to do their jobs?

For MPs elected to parliament for the first time the task ahead can seem daunting.

Winning a general election: what does a new prime minister’s first 72 hours look like?

The first 72 hours as a new prime minister provides an early lesson in how huge the job is and how extensive the demands on their time will be.

What will the government need to do in the first few weeks after the election?

What will happen in the first few weeks after the general election?

• Law of torts – Complete Reading Material
• Weekly Competition – Week 4 – September 2019
• Weekly Competition – Week 1 October 2019
• Weekly Competition – Week 2 – October 2019
• Weekly Competition – Week 3 – October 2019
• Weekly Competition – Week 4 – October 2019
• Weekly Competition – Week 5 October 2019
• Weekly Competition – Week 1 – November 2019
• Weekly Competition – Week 2 – November 2019
• Weekly Competition – Week 3 – November 2019
• Weekly Competition – Week 4 – November 2019
• Weekly Competition – Week 1 – December 2019
• Sign in / Join

• Constitution of India
• Featured Student Assignments (LawSikho)
• Judicial review

Judicial review under the Indian Constitution

This article has been written by Devansh Singh pursuing Diploma in Advanced Contract Drafting, Negotiation and Dispute Resolution and has been edited by Oishika Banerji (Team Lawsikho ). 

This article has been published by Sneha Mahawar .​​  

Table of Contents

Introduction 

Judicial review is the process of examining the constitutionality of any law passed by the Parliament. If the law passed is found to be violating or infringing the provisions of the Indian Constitution , then either the high courts or the Supreme Court of India can declare them as void thereby not allowing them to be enforceable. John Marshall, an American politician and lawyer, had created the concept of judicial review.  In India, the principle of the rule of law is followed and the Indian Constitution is considered to be the supreme law of the land. Laws made are to be in consonance of the basic structure of the Constitution and not in abeyance of it, for the latter gets nullified ipso facto . Although one cannot find any express mentioning of the term ‘judicial review’ in the Indian Constitution, there are several provisions of the Constitution that makes a reference or hints on the concept. Whenever we talk about judicial review, the two significant functions that need to be looked into are: 

• Legitimation of the government actions.
• Safeguarding the Constitution from being encroached upon by the government.  has two important functions to look upon.

This article discusses the concept of judicial review with respect to the Indian Constitution in detail. 

Importance of judicial review

Judicial review is necessary because it protects the fundamental rights of the citizens and the residents that have been laid down under Part III of the Indian Constitution thereby maintaining the supremacy of the Constitution and restricting the legislature and the executive from misusing their vested powers. Judiciary’s power to examine executive actions and legislative enactments is what judicial review is inclusive of. The importance of judicial review can be understood in the following ways:

• Practising judicial review helps in distributing the power between the Union and the states. 
• It ensures that the judiciary is independent as it works independently thereby also clearly defines the functions of every organ of the government.
• It protects the fundamental rights of the citizens guaranteed by the Indian Constitution.

Elements of judicial review 

Both the Supreme Court and the high courts have the power to exercise this judicial review under Articles 32 and 226 respectively. While Article 32 provides that a person can approach the Supreme Court for any violation or infringement of his or her fundamental rights, Article 226 clearly states that a person can approach high courts on similar grounds. Judicial review can be done over laws formulated by both the state and the Center. 

Article 32 of the Indian Constitution 

Article 32 of the Indian Constitution guarantees individuals the right to constitutional remedy, by means of which they can approach the Supreme Court of India, in order to seek justice, in cases where they have been deprived of their guaranteed fundamental rights. The Apex Court is vested with the power to order directions that will aid in enforcing the deprived rights thereby restoring them as well. Article 32 of the Indian Constitution is therefore also recognised as the protector and guarantor of fundamental rights.

It is ideal to note that the Indian Constitution provides for 5 types of writs that can be issued by the courts as a consequence of a petition filed under Article 32. They are the writ of Habeas Corpus, Mandamus, Certiorari, Quo Warranto and Prohibition. The constitutional remedies provide the citizens with equipped means of restoring their infringed rights. It is ideal to note that the writ jurisdiction that the Constitution confers, comes with prerogative powers and although discretionary, are unbounded in its limits. On the basis of the same, it is clear that the constitutional system does not entertain the presence of arbitrary powers. Therefore, whatever decision is taken by the Apex Court when approached by Article 32, the same must be based on sound reasoning. 

Article 226 of the Indian Constitution 

The specialty of Article 226 when compared with Article 32 is that while the latter solely deals with fundamental rights violation, the former can also deal with questions of law alongside fundamental rights. Although exercising its vested power under Article 226 is discretionary for the high courts, such discretion deserves sound judicial reasoning. It is also necessary to note that while high courts exercise their power under the discussed provision, the court is duty-bound to take into consideration that the petitioner who approached them, had no alternative remedy to resort to other than the one provided under Article 226. 

The Rajasthan High Court has rightfully observed that the power of judicial review that has been vested upon high courts, under Article 226 of the Indian Constitution, is to be considered as one of the fundamental features of such Constitution and no legislation can have room for overriding such vested jurisdiction from the high courts while deciding the case of LNJ Power Ventures Ltd. v. Rajasthan Electricity Regulatory Commission and Ors (2022). 

Functions of judicial review

The main function of judicial review is to explain the laws made by the legislature. The judicial review ensures that the law that is passed is not violating the provision of the Indian Constitution. It reviews the law which had been passed by the legislative and executive wings of the government. Judicial review also delivers justice to all citizens of a country and therefore can be termed as the guardian of the Constitution.

Grounds for judicial review

The grounds of judicial review are:-

(1) Jurisdictional Error – It actually happens when a complaint has wrongfully been addressed by the court. The court has no authority to do so. This error can be addressed by issuing a “ Writ of Certiorari ”.

(2) Irrationality – It is also known as “Wednesbury unreasonableness”. In this, no decision maker comes to the same decision. They fail to consider relevant matters.

(3) Procedural Impropriety – It is a failure to comply with the laid down procedures. It actually consists of two areas, namely, failure to observe the rules and to observe the fundamental rule of justice.

Types of judicial review

 Judicial reviews are of three types, namely-

(1)  Legislative decision – Judicial review for legislative decisions means that whatever law is passed by the legislative organ of the government, the same must follow the provisions of the Constitution. It should not disrespect or disobey any provisions of the Constitution. 

(2) Administrative decision – Judicial review for administrative decisions means that the court has the power to review an action of legislature and executive. If their actions are found to be in violation of any of the provisions of the Constitution, then they will be declared as void. Therefore, their actions should follow the provisions of the Constitution. 

(3) Judicial decision – Judicial review of judicial decisions signifies higher courts overviewing the decision passed by the lower courts without intervening in their functionality. The same is required for the efficient functioning of the Indian judiciary. 

Procedure for judicial review in India

The phrase “procedure established by law” , as provided under Article 21 of the Indian Constitution, serves as the governing principle for the concept of judicial review. This principle actually means that the law which has been enacted by the legislature is valid or has a legal effect only when the correct procedure is followed. There is a test of constitutionality that the law has to pass and if the law passes that test then only can it be an enforceable law.

Limitations of judicial review

Judicial review is only limited to higher courts like the Supreme Court and high courts, not to the lower courts. Judicial review can neither interrupt any political questions nor any policy matters. Judicial review just reviews the law that had been made. It does not make or implement the laws as this power is vested with other organs of the government. It also limits the functioning of the government.

What is the current scenario of judicial review in India

The present series of cases that are approaching before the Indian courts, where they are being asked to exercise the power of judicial review, have seen a trend in the courts to step back from the same, owing to avoidance of judicial encroachment.  The Himachal Pradesh High Court while deciding the case of Santosh Nanta vs State of H.P. & Ors. (2023), has observed that judicial review if exercised in overlooking any decision that is made by expert domains of a selection committee for a reasoned selection process to be carried out, would be considered to be tantamount to treading on a thin sheet of ice and therefore, judicial interference should be avoided.

Further, the Andhra Pradesh High Court, while deciding the case of Nallacheruvu Obulesu v. State of Andhra Pradesh & ors (2023), has observed that courts’ power to exercise judicial review in cases of dispute originating from tender invitation conditions, stands limited. This is because, the terms and conditions of the tender are directed by the government, who after bearing a mindful nature and reasoned decision while prescribing the same. The authority who calls for tender is considered to be the appropriate judge in the same, and questioning his decision is ipso facto unrequired interference in his functioning by the court.  Thus, it is not for courts to conclude as to whether the conditions that the tender carries are good or bad. 

These decisions reveal that the judiciary itself has been conscious enough while exercising the discretionary power of judicial review thereby avoiding judicial overreach in its best terms. 

Judicial review is the most important and powerful tool provided in the hands of senior courts by the Indian Constitution. It keeps a check on the other organs of the government so that they function properly without unnecessary interference. Thus, judicial review stands as a requirement for time immemorial and is also considered to be the basic structure of the Indian Constitution.  

Students of  Lawsikho courses  regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.

LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join:

https://t.me/lawyerscommunity

Follow us on  Instagram  and subscribe to our  YouTube  channel for more amazing legal content.

RELATED ARTICLES MORE FROM AUTHOR

Jayantilal amrit lal shodhan vs. f. n. rana and others (1963), in re berubari union and exchange of enclaves (1960), kihoto hollohan vs. zachillhu (1993), leave a reply cancel reply.

Save my name, email, and website in this browser for the next time I comment.

3-Day Bootcamp (LIVE only) on

How you can use labour law skills to go from HR manager to business leader

Register now

Thank you for registering with us, you made the right choice.

Congratulations! You have successfully registered for the webinar. See you there.

You have to be logged in to access this activity.

Choice of Forum for Judicial Review of Agency Rules

Final rules adopted by federal agencies are generally subject to review in the federal courts. [1] In a series of recommendations adopted in the 1970s, 1980s, and 1990s, the Administrative Conference sought to identify principles to guide Congress in choosing the appropriate forum for judicial review of agency rules. The most significant was Recommendation 75-3, The Choice of Forum for Judicial Review of Administrative Action , which recommended that, in the case of rules adopted after notice and comment, Congress generally should provide for direct review in the courts of appeals whenever “an initial district court decision respecting the validity of the rule will ordinarily be appealed” or “the public interest requires prompt, authoritative determination of the validity of the rule.” [2] Subsequent recommendations opposed altering the ordinary rules governing venue in district court actions against the United States, [3] set forth a principle for determining when it is appropriate to give the Court of Appeals for the District of Columbia Circuit exclusive jurisdiction to review agency rules, [4] and offered guidance to Congress on the factors it should consider in determining whether to assign responsibility for review to a specialized court. [5] The Conference also addressed the choice of forum for judicial review of rules adopted under specific statutes. [6]

Several years ago, the Conference undertook a study to identify and review all statutory provisions in the United States Code governing judicial review of federal agency rules and adjudicative orders. [7] Based on that initiative, ACUS adopted Recommendation 2021-5, Clarifying Statutory Access to Judicial Review of Agency Action , [8] which recommended that Congress address statutory provisions   that create unnecessary obstacles to judicial review or overly complicate the process of judicial review. That Recommendation also prompted questions regarding “whether Congress should specify where judicial review should be sought with regard to agency actions that are not currently the subject of any specific judicial review statute.” [9]

In this Recommendation, the Conference revisits the principles that should guide Congress in choosing the appropriate forum for judicial review of agency rules and in drafting clear provisions that govern the choice of forum. While this Recommendation offers drafting advice to Congress, agencies may also find it useful in responding to congressional requests for technical assistance. [10]

Determining the Court in Which to Seek Review

Absent a statute providing otherwise, parties may seek judicial review of agency rules in a district court. Although this approach may be appropriate in some contexts, direct review by a court of appeals is often more appropriate. For one, district court proceedings are less necessary when an agency has already compiled an administrative record that is adequate for judicial review and further appeal of a district-court decision is likely. Allowing parties to choose the district court in which to seek review also creates opportunities for forum shopping to a greater extent than when review is sought in a court of appeals. [11] For these and other reasons, Congress has in many contexts provided for direct review of agency rules in the courts of appeals. And in a minority of statutes, Congress has required parties to seek review in a single, specified tribunal.

In this Recommendation, the Conference generally reaffirms its earlier recommendations that Congress ordinarily should provide for direct review of agency rules by a court of appeals. The Conference believes that this principle is particularly important for rules promulgated through public notice and opportunity for comment. Such procedures produce a record that is conducive to review by an appeals court without need for additional development or factfinding, and drawing the line at rules promulgated after public notice and opportunity for comment provides a relatively clear jurisdictional rule.

Avoiding Drafting Ambiguities

Courts have faced two sources of ambiguity in interpreting choice-of-forum provisions which this Recommendation addresses. [12] First, some statutes specify the forum for review of “orders” without specifying the forum for review of “rules” or “regulations.” This can lead to uncertainty regarding whether “orders” includes rules, particularly because the Administrative Procedure Act defines an “order” as any agency action other than a rule. [13] Second, some statutes are unclear as to the forum in which a party may file an action challenging the validity of a rule. A lack of clarity may result from statutory silence or a choice-of-forum provision of uncertain scope.

This Recommendation urges Congress, in drafting new or amending existing provisions governing the choice of forum for the review of rules, [14] to avoid using the term “orders” to encompass rules; to state clearly the forum in which judicial review of rules is available; and to state clearly whether such provisions apply to rule-related actions other than the promulgation of a rule.

RECOMMENDATION

1. When drafting a statute that provides for judicial review of agency rules, Congress ordinarily should provide that rules promulgated using notice-and-comment procedures are subject to direct review by a court of appeals.

2. When drafting a statute that provides for judicial review of agency actions, Congress should state explicitly whether actions taken under the statute are subject to review by a district court or, instead, subject to direct review by a court of appeals. If Congress intends to establish separate requirements for review of rules, as distinguished from other agency actions, it should refer explicitly to “rules” and not use the term “orders” to include rules.

[1] See 5 U.S.C. § 702. This Recommendation does not address judicial review of adjudicative orders, including those that announce principles with rule-like effect or agency actions regarding petitions for rulemaking. Additionally, the Recommendation does not address suits challenging agency delay or inaction in promulgating rules. See Telecomms. Rsch. & Action Ctr. v. Fed. Commc’ns Comm’n, 750 F.2d 70, 72 (D.C. Cir. 1984); see generally  Joseph W. Mead, Choice of Forum for Judicial Review of Agency Rules (May 9, 2024) (report to the Admin. Conf. of the U.S.).

[2] 40 Fed. Reg. 27,926 (July 2, 1975).

[3] Admin. Conf. of the U.S., Recommendation 82-3, Federal Venue Provisions Applicable to Suits Against the Government , 47 Fed. Reg. 30,706 (July 15, 1982).

[5] Admin. Conf. of the U.S., Recommendation 91-9, Specialized Review of Administrative Action , 56 Fed. Reg. 67,143 (Dec. 30, 1991).

[6] Admin. Conf. of the U.S., Recommendation 76-4, Judicial Review Under the Clean Air Act and Federal Water Pollution Control Act , 41 Fed. Reg. 56,767 (Dec. 30, 1976); Admin. Conf. of the U.S., Recommendation 91-5, Facilitating the Use of Rulemaking by the National Labor Relations Board , 56 Fed. Reg. 33,851 (July 24, 1991).

[7] See Jonathan R. Siegel, Admin. Conf. of the U.S., Sourcebook of Federal Judicial Review Statutes 33 (2021).

[8] 86 Fed. Reg. 53,262 (Sept. 27, 2021).

[9] Id . at 53,262 n.7.

[10] See Admin. Conf. of the U.S., Recommendation 2015-2, Technical Assistance by Federal Agencies in the Legislative Process , 80 Fed. Reg. 78,161 (Dec. 16, 2015).

[11] See  Mead, supra  note 1; Admin. Conf. of the U.S., Recommendation 80-5, Eliminating or Simplifying the “Race to the Courthouse” in Appeals from Agency Action , 45 Fed. Reg. 84,954 (Dec. 24, 1980).

[12] The Committee on Judicial Review, from which this Recommendation arose, identified a third source of ambiguity: Many statutes are unclear as to whether choice-of-forum provisions regarding rules apply only to rules promulgated by an agency or whether they apply also to other rule-related actions such as delay or inaction in promulgating a rule or the grant or denial of a petition for rulemaking. This Recommendation does not address this ambiguity. The Committee on Judicial Review has suggested it for future study by the Conference.

[13] 5 U.S.C. § 551(6).

[14] This Recommendation provides advice to Congress in drafting future statutes. It should not be read to address existing statutes.