International perspectives on the Court
International perspectives on the concept of judicial review highlight significant variations in how different nations perceive and implement this legal principle. Emerging prominently in the late twentieth century, the idea of a court capable of overturning majority decisions was not universally embraced, often clashing with the traditional view of democracy as synonymous with majority rule. This has led to historical contexts, such as in Marxist systems, where unrestrained majoritarianism resulted in totalitarianism, undermining the rule of law. Countries like Germany have adopted their own versions of judicial review, influenced by the U.S. model but tailored to maintain coherence within their constitutional frameworks. The German Federal Constitutional Court, for instance, has a broader mandate to enforce its Basic Law compared to the U.S. Supreme Court, allowing for a more robust application of judicial review. Meanwhile, nations like South Africa and Hungary have also drawn upon the German model, although with varying degrees of adherence to the principles of the rule of law. Overall, the global landscape reveals a trend towards embracing judicial review, yet the precise application and authority of such courts continue to reflect each country's unique legal and political heritage.
International perspectives on the Court
Description: Effect that the U.S. Constitution and the Supreme Court, with its power of judicial review, have had on legal and governmental systems internationally.
Significance: The power of judicial review held by the U.S. Supreme Court is based on an early British concept, but judicial review in the United States became a far more powerful concept that spread widely across the globe in the latter half of the twentieth century.
More important than the spread of democracy or constitutions, the spread of the concept of the rule of law and, more particularly, of judicial review affected the world in the late twentieth century. Democracy, defined in various ways, had been tried in a number of places over time, but never had it been accompanied by the creation of an institution with the power to overturn the apparent will of a majority of voters. Constitutions similarly have had a long history, but typically one of being written, adopted, and often ignored. What was unique in the American experience was a coupling of a democratic constitution with a method of enforcing the constitution against majority will. The U.S. Constitution, among other things, allowed for the creation of the U.S. Supreme Court and empowered it to declare acts of the coordinate branches of the national government unconstitutional. The Constitution also empowered the U.S. Supreme Court to declare acts of the states unconstitutional, but this was not new for judicial systems.
This idea of a court of last resort with the power of judicial review was not immediately popular because of a widespread misconception that democracy was synonymous with majority rule. Many nations regarded democracy as the equivalent of majority rule with disastrous results. The idea created either frequently changing, if not unstable, regimes or outright totalitarianism. All the dictators in the twentieth century claimed to be democratic leaders. They justified their takeovers by claiming they were supported by majorities when they won their revolutions. Having once had majority support, they argued there was no need to revalidate their authority with a new election. Nor was there any need for them to restrain the scope of their government; for nothing, in their view, could restrain the democracy.
This was especially true in all Marxist systems in which the opposition to the rule of law itself was profound and inevitable. The rule of law emphatically opposes retroactive legislation, but the essence of a proletarian revolution is a retroactive seizure of property from capitalists. If the laws themselves are not respected, no more complex idea such as constitutionalism or judicial review can survive. Because proletarians are by definition an overwhelming majority, absolutely unrestrained majoritarianism prevailed, often resulting in a vicious totalitarianism. After the demise of the Soviet Union, Russia, the Czech Republic, Bulgaria, Lithuania, and Poland have adopted constitutions creating constitutional courts with power of majority rule.
France, Great Britain, and Germany
Even non-Marxist states often viewed democracy as equivalent to simple majoritarianism. For example, French democrats disfavored judicial review because of its countermajoritarian and thus undemocratic characteristic. However, some French people favored judicial review as a means to check the traditional French tendency toward monarchy or strong executive rule unrestrained by judicial authority. In its struggle between these two views, France changed its “constitutional” regime more than a dozen times since the late eighteenth century. In 1958, the French Fifth Republic created the French Constitutional Council, which has limited judicial review.
British democratic practices were modified by the traditional monarchy and aristocracy, but majoritarianism was evident in the unification of all governmental power in the British Parliament. In theory, there was no separation of the judiciary from the absolute control of Parliament, although the independence of the judiciary was well established in practice. The British did not see any need for judicial restraint on majoritarianism.
The German case is especially important. Frederich Hayek, in his The Road to Serfdom (1944) argued that the decline of the rule of law preceded and led to Adolf Hitler’s rise to power. Whatever the precise causal relationship, the Nazi regime certainly was notorious for its lack of legality. With the destruction of the Nazi regime, the Germans in the British, French, and U.S. zones of occupation adopted a new constitution, called the Basic Law, creating the German Federal Constitutional Court. Although the American practice of judicial review influenced the German decision, the Germans did not blindly copy the U.S. system. One significant difference was the Basic Law’s specific authorization of judicial review, which is not specifically included in the U.S. Constitution. The U.S. Supreme Court has been restrained in its willingness to strike actions of the coordinate branches of the national government almost certainly because judicial review is not specifically mentioned in the U.S. Constitution. Having specific textual authorization, the Federal Constitutional Court has felt free to strike a larger number of national governmental enactments in the last fifty years than the Supreme Court has during the last two hundred years.
In many ways, the German Basic Law and Federal Constitutional Court adhere closer to the rule of law than the Supreme Court does. The Basic Law is regarded as a unified document in which all provisions are regarded as normatively valid. This means that the entire document must be taken as a whole and its provisions must be given full, unambiguous interpretation. Because of the obligation to keep the document coherent, the Federal Constitutional Court does not dodge difficult issues by treating them as political questions as has been common in the United States. The Supreme Court hears only cases and controversies and will not render advisory opinions. There is nothing in the U.S. system of law that renders this impossible because many state supreme courts do give advisory opinions. The Federal Constitutional Court has specific authorization for abstract judicial review (or advisory opinions). It can be required to give an advisory opinion on the request of one-third of the members of the national legislature, the national, or the lander (state) government.
The Federal Constitutional Court regards the Basic Law as a coherent set of principles with an internal harmony that must be maintained and tries to avoid the Supreme Court’s tendency to analyze isolated passages. The notion that the document has internal harmony means that the Federal Constitutional Court could decide that a proposed constitutional amendment was itself unconstitutional, another feature dramatically different from U.S. constitutional theory. In terms of the predictability, certainty, generality, formality, and coherence favored by the rule of law, the Germans would seem to have taken the American creation and improved on it. Even more important, the Federal Constitutional Court has enforced section 80 of the Basic Law that forbids the legislature from delegating its lawmaking power without clear standards. The Supreme Court has ruled vague delegations of legislative power unconstitutional, but then abandoned its own rule as a practical matter. This has led to a substantial deviation from rule of law standards.
Adoptions of the German Model
For this reason, it is no surprise that most of the new constitutions adopted in Europe both East and West have followed the German model more closely than the American system. Even further afield internationally, the Republic of South Africa has chosen the German rather than the American model. In part, this is natural because the historical process in the United States has led to many of the less than desirable characteristics of the U.S. practice.
Not all copies of the German model conform closely to the rule of law. The recently formed Hungarian Constitutional Court carries some features of the German model to questionable extremes. The Hungarian Court can take a case from any official or citizen and decides most cases on an abstract judicial review basis. In 1997, one scholar reported that the Hungarian Constitutional Court had used essentially advisory opinions to invalidate laws at a rate of one per week. The Hungarian court also declares laws unconstitutional by “omission” if laws the Court feels the constitution requires are not adopted. The Hungarian court appears to be so independent as to act as a legislature threatening one of the values of the rule of law.
Whether this trend will continue remains to be seen. Still the spread of the original American idea of judicial review modified by the recent German model was a clear feature of the second half of the twentieth century. The French created their Constitutional Council, although its power of judicial review pales in comparison with either its American or German counterpart. Canada, Italy, and Spain have constitutional courts with judicial review powers. The British continue with their traditional reliance on the House of Lords and the Law Lords, which are the furthest from the American and German models among major European powers. However, judicial review is not absent from the British system. Britain, France, Germany, and the other members of the European Community are subject to the Court of Justice of the European Community, which has the authority to exercise a form of judicial review.
Bibliography
Cappelletti, Mario. The Judicial Process in Comparative Perspective. Clarendon Press, 1989.
Glendon, Mary Ann, et al. Comparative Legal Traditions in a Nutshell. 4th ed., West Publishing, 2016. Compares and contrasts various judicial systems.
Hayek, Frederick A. The Road to Serfdom. U of Chicago P, 1944. Focuses on the law in various nations.
Kommers, Donald P., et al. The Constitutional Jurisprudence of the Federal Republic of Germany. 3rd ed., Duke UP, 2012.
Kommers, Donald, et al. American Constitutional Law: Essays, Cases, and Comparative Notes. 4th ed., West Academic Publishing, 2018.
Murphy, Walter F. and Joseph Tanenhaus. Comparative Constitutional Law: Cases and Commentaries. St. Martin’s Press, 1977. Focuses on constitutional law.
Rasmussen, Joel, and Joel C. Moses. Major European Governments. 9th ed., Wadsworth, 1995.
Raz, Joseph. The Authority of Law. Oxford UP, 2009.
Walker, Geoffrey De Q. The Rule of Law: Foundations of Constitutional Democracy, Melbourne UP, 21 Oct. 2008, doi.org/10.1080/08109028908629068. Accessed 5 Apr. 2023.