Judicial Review in the US and Europe

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Questions and Answers

What was the original form of judicial review conceived in the US?

Decentralized review by individual judges (correct)

Executive review by the president

Centralized review by a single supreme court

Legislative review by parliament

After World War II, how was judicial review adapted in Europe?

It was eliminated entirely

It involved review exclusively by the supreme court

It was assigned to constitutional courts as ad hoc bodies (correct)

It became a more centralized function

What phenomenon does Otto Kahn-Freund identify as most controversial in the context of comparative law?

International unification of law

The use of foreign law to produce social changes (correct)

Adaptation of legislation to local circumstances

The use of foreign law as legal models

According to Montesquieu, what was the view on the transferability of legal institutions?

It is regarded as exceptional Signup and view all the answers

Which of the following is NOT one of the three phenomena discussed by Kahn-Freund regarding comparative law?

Influence of economic models on legal systems Signup and view all the answers

What metaphor does Kahn-Freund use to discuss the acceptance of legal institutions in different contexts?

Legal institutions as medical organs Signup and view all the answers

What is the main argument against the use of foreign law in adjudication as presented in the discussion?

It may lead to manipulation and cherry-picking. Signup and view all the answers

What context-dependent factors does Kahn-Freund argue obstruct the transplantation of legal institutions?

Geography, climate, and socio-economic conditions Signup and view all the answers

What type of judicial review emerged in countries like the UK, New Zealand, and Canada?

Weak form of judicial review Signup and view all the answers

How does the approach to foreign precedents in Europe differ from the positions outlined in the discussion?

European law allows for a more flexible use of foreign precedents. Signup and view all the answers

What was Peter H. Berle's suggestion regarding comparative law?

It should be viewed as a fifth interpretative method. Signup and view all the answers

What role has comparative constitutional law played in the Court of Justice of the EU?

It has been significant in addressing fundamental rights protections. Signup and view all the answers

What prompted the Court of Justice of the EU to utilize comparative constitutional law in the 1970s?

The lack of a fundamental rights catalog in the Treaty of Rome. Signup and view all the answers

Which case is specifically mentioned as significant in the development of judicial protection for fundamental rights?

The Nold case. Signup and view all the answers

What is a key concern raised about the use of foreign law in judicial decisions?

It may create inconsistencies in domestic law. Signup and view all the answers

What is the underlying assumption of those who favor the use of foreign law in adjudication?

Judges confront similar problems across jurisdictions. Signup and view all the answers

What is one of the main purposes of Comparative Constitutional Law (CCL)?

To improve knowledge and educational aims. Signup and view all the answers

Which of the following is a theoretical purpose of CCL?

Identifying commonalities in constitutional systems. Signup and view all the answers

How can CCL reject the adoption of foreign constitutional models?

By highlighting the unique aspects of local constitutional concepts. Signup and view all the answers

What characterizes the practical purposes of CCL?

To address a variety of legal practitioners' needs. Signup and view all the answers

Which organizational forms of judicial review are mentioned in CCL discussions?

Decentralised, centralised, direct or indirect access, and weak or strong forms. Signup and view all the answers

What might comparative constitutional analysis help highlight?

The common legal problems and their solutions across systems. Signup and view all the answers

In what context is CCL used to debunk hegemonic tendencies?

In debates about the adoption of judicial review in the interwar period. Signup and view all the answers

What role does CCL play in relation to constitutional scholars?

It encourages the elaboration of classifications and normative assessments. Signup and view all the answers

Study Notes

Comparative Constitutional Law - Unit 1

Comparative Constitutional Law (CCL) is an intellectual activity that identifies, classifies, explains, and evaluates similarities/differences between constitutional systems.
A constitutional system is the structure of a legal and political order, stemming from fundamental law(s). The constitution is the foundational norms.
CCL was practiced in ancient Greece (e.g., Aristotle studied Greek city-state constitutions).
Machiavelli and Montesquieu also used comparative analysis to develop theories of government.
CCL was important after the American and French Revolutions, providing inspiration for new institutions.
The 19th century saw a shift towards domestic legal studies, focusing on the interpretation of national constitutions.
After World War II, CCL re-emerged, challenging legal positivism and reasserting liberal constitutionalism.
Carl Friedrich helped revive CCL, with a focus on fundamental rights and judicial review.
CCL became important in promoting democratic transitions in post-1989 Eastern Europe and other areas.
CCL is used by scholars to analyze systems, by judges for case law, and by legislators for constitutional design.
Scholars use an observer perspective, while judges and legislators have a participant perspective often driven by political priorities.

Comparative Constitutional Law - Unit 2

CCL has purposes of: improving knowledge (e.g., analyzing various forms of judicial review); theoretical/critical assessment (identifying similarities/differences, or highlighting particular features); and practical application (e.g. informing constitutional design, interpretation).

Comparative Constitutional Law - Unit 3

Constitution-making involves the exercise of constituent power, distinct from amending power.
Methods of constitution-making include: internal processes (e.g., parliamentary debates), external processes (e.g., imposed by occupying forces), and hybrid models involving international supervision.
In the context of international relations, consideration of international agreements/norms impacts constitution-making.

Comparative Constitutional Law - Unit 4

Territorial organization of political power (vertical separation of power) refers to federal, regional, and unitary systems.
Federal systems feature shared rule and self-rule through federated entities, while unitary states have centralized authority.
Arguments for decentralisation include respecting freedoms, fostering innovation, and accommodating diverse interests.
Differences can be quantitative (autonomy level) or qualitative (legislative vs. executive structures)
Federalism often emerges through aggregation of sovereign entities adapting cultural/ethnic differences.

Comparative Constitutional Law - Unit 5

Forms of government refer to the ways political power is distributed among the branches of government (head of state, cabinet, and parliament).
Models include: Absolutism, Constitutional Monarchy, Presidentialism, and Parliamentary systems.
Parliamentary systems have a close relationship between the executive and legislative branches, often characterized by a “confidence” relationship.
Several variations of parliamentary systems exist, differing in the role and powers of the head of state.

Comparative Constitutional Law - Unit 6

Representative democracy is a predominant model, with political decisions delegated to elected institutions and a circular link between institutions and society.
Political parties act as intermediaries in this model, defining ideologies, formulating programmes, selecting candidates, and connecting electorate and representatives.
The importance of parliaments in representative democracies is significant; they are the primary law-making bodies and hold the executive accountable.
Differences in election systems (e.g., majoritarian, proportional) affect the makeup of parliaments, sometimes leading to imbalances in representation of diverse interests

Comparative Constitutional Law - Unit 7

The judiciary interprets and applies laws (substantive and procedural).
Civil law systems emphasize that judges are passive interpreters, while common law judges participate in shaping the law through precedent.
Judicial independence is crucial and can be external (freedom from other branches) or internal (freedom within the judiciary).
Judicial discretion exists in certain cases, owing to ambiguities in legislation/case law, impacting the balance between independent judgment and political accountability.

Comparative Constitutional Law - Unit 8

Judicial review of legislation (JRL) is the judicial process of scrutinizing legislation against constitutional norms.
Two main types of JRL: strong (courts have general authority affecting law-making) and weak (courts' decisions can be overturned by legislatures)
JRL originated in the US (Marbury v. Madison), influenced by Plato's ideas and Sieyès' concerns for constituent power.
JRL has often been a contested topic, with arguments about democratic legitimacy and the proper scope of judicial power.
Strong judicial review is more common in Europe, particularly in post-WWII constitutions, typically in response to a legacy of totalitarianism and in pursuit of constitutional integrity.

Comparative Constitutional Law - Unit 9

Constitutional rights can be categorized into generations, reflecting historical developments in understanding rights and society—civil, political, and social.
Rights can be interpreted as "trumps," absolute claims against government interference, or "principles," limited claims requiring balancing against competing interests.
Constitutional interpretation plays a critical role in determining the scope and application of rights, particularly in determining their internal limitations.

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Description

This quiz explores the origins of judicial review in the United States and its evolution in Europe following World War II. Test your knowledge on how these concepts have shaped legal systems across the Atlantic.