10005569 judicial review of legislation
JUDICIAL REVIEW OF LEGISLATION
A paper prepared for the Anglo-Israeli Legal Exchange, Jerusalem, May 2007
David Feldman
1. A recent article in Public Law asks whether judicial review of legislation is undemocratic.1 In some jurisdictions the question has come to dominate public-law theory. Constitutional scholarship in the USA, for example, seems obsessed by questions about the legitimacy of judicial review, often assessed by reference to democratic theory2 but also in relation to techniques of constitutional interpretation.
2. It would be wrong to ignore the question of legitimacy, but it is equally mistaken to behave as if it were the only important issue concerning judicial review of legislation. Other questions should be addressed first. Both critics and defenders of judicial review often proceed on the basis of questionable assumptions about the nature of judicial review. One assumption is that judicial review is always more or less the same activity, and that all forms of judicial review are (therefore) more or less equally legitimate or illegitimate. This paper draws attention to the differences between different forms and methods of judicial review of legislation, before briefly considering how we might decide whether some forms and methods are more legitimate than others. It deals only with primary legislation. Judicial review of subordinate or delegated legislation gives rise to interesting issues, but primary legislation lies at the heart of the argument about the legitimacy of judicial review.
Types of judicial review
3. We need to distinguish first between concrete and abstract review, and secondly between post-legislative and pre-legislative review.
4. The distinction between concrete and abstract review relates to the way in which a case raises the issue of consistency between one legal norm and another.
5. Concrete review is conducted on the basis of the facts of a specific case. The question for decision is whether, on those facts, a piece
A paper prepared for the Anglo-Israeli Legal Exchange, Jerusalem, May 2007
David Feldman
1. A recent article in Public Law asks whether judicial review of legislation is undemocratic.1 In some jurisdictions the question has come to dominate public-law theory. Constitutional scholarship in the USA, for example, seems obsessed by questions about the legitimacy of judicial review, often assessed by reference to democratic theory2 but also in relation to techniques of constitutional interpretation.
2. It would be wrong to ignore the question of legitimacy, but it is equally mistaken to behave as if it were the only important issue concerning judicial review of legislation. Other questions should be addressed first. Both critics and defenders of judicial review often proceed on the basis of questionable assumptions about the nature of judicial review. One assumption is that judicial review is always more or less the same activity, and that all forms of judicial review are (therefore) more or less equally legitimate or illegitimate. This paper draws attention to the differences between different forms and methods of judicial review of legislation, before briefly considering how we might decide whether some forms and methods are more legitimate than others. It deals only with primary legislation. Judicial review of subordinate or delegated legislation gives rise to interesting issues, but primary legislation lies at the heart of the argument about the legitimacy of judicial review.
Types of judicial review
3. We need to distinguish first between concrete and abstract review, and secondly between post-legislative and pre-legislative review.
4. The distinction between concrete and abstract review relates to the way in which a case raises the issue of consistency between one legal norm and another.
5. Concrete review is conducted on the basis of the facts of a specific case. The question for decision is whether, on those facts, a piece