Judicial Review Of Legislation

Constitutionalism is the permanent quest to control state power, of which the judicial review of legislation is a prime example. Although the judicial review of legislation is increasingly common in modern societies, it is not a finished project. This device still raises questions as to whether judicial review is justified, and how it may be structured. Yet, judicial review’s justification and its scope are seldom addressed in the same study, thereby making for an inconvenient divorce of these two related avenues of study. To narrow the divide, the object of this work is quite straightforward. Namely, is the idea of judicial review defensible, and what influences its design and scope? This book addresses these matters by comparing the judicial review of legislation in the United Kingdom (the Human Rights Act of 1998), the Netherlands (the Halsema Proposal of 2002) and the Constitution of South Africa of 1996. These systems present valuable material to study the issues raised by judicial review. The Netherlands is of particular interest as its Constitution still prohibits the constitutional review of acts of parliament, while allowing treaty review of such acts. The Halsema Proposal wants to even out this difference by allowing the courts also to apply constitutional norms to legislation and not only to international norms. The Human Rights Act and the South African Constitution also present interesting questions that will make their study worthwhile. One can think of the issue of dialogue between the legislature and the judiciary. This topic enjoys increased attention in the United Kingdom but is somewhat underexplored in South African thought on judicial review. These and similar issues are studied in each of the three systems, to not only gain a better understanding of the systems as such, but also of judicial review in general.

This book, first published in 1914, contains five historical essays. Three of them are on the concept of judicial review, which is defined as the power of a court to review and invalidate unlawful acts by the legislative and executive branches of government. One chapter addresses the historical controversy over states' rights. Another concerns the Pelatiah Webster Myth the notion that the US Constitution was the work of a single person.In "Marbury v. Madison and the Doctrine of Judicial Review," Edward S. Corwin analyzes the legal source of the power of the Supreme Court to review acts of Congress. "We, the People" examines the rights of states in relation to secession and nullification. "The Pelatiah Webster Myth" demolishes Hannis Taylor's thesis that Webster was the "secret" author of the constitution. "The Dred Scott Decision" considers Chief Justice Taney's argument concerning Scott's title to citizenship under the Constitution. "Some Possibilities in the Way of Treaty-Making" discusses how the US Constitution relates to international treaties.Matthew J. Franck's new introduction to this centennial edition situates Corwin's career in the history of judicial review both as a concept and as a political reality.

Hiebert (political studies, Queen's U.) discusses the issue of who should be responsible for determining whether Canadian legislation conflicting with the rights of the Charter should be upheld as a reasonable limit on protected rights. She provides an extended analysis of Supreme Court decisions involving limits on protected rights, the issues surrounding judicial review, and the considerable influence exerted by Canadian politician over which legislation is considered for review. Canadian card order number C96-900197-5. Annotation copyright by Book News, Inc., Portland, OR

This book is a systematic study of constitutional legislation in Canada in relation to constitutional development. In deciding whether legislation in the Canadian courts is constitutionally valid or invalid, the author discusses the history, theory, special problems, and rules relating to the function of the courts. He believes that our courts have never clearly enunciated the constitutional basis of their right to review legislation for validity, nor have the permissible limitations on the right been analysed. Thus the rôle of the courts in the operation of the constitution has rarely been articulated. The author's thesis is that constitutional change by amendment is not an effective means of keeping the constituion abreast of developments, and that this function should be taken over by the courts. Based on an analysis of the results of past judicial review this study urges reassessment and change to provide more functional constitutional jurisprudence: it suggests a general liberalization of rules permitting citizens to raise constitutional issues before the courts, a liberalization of rules of evidence so that courts may be adequately informed as to the social and economic contexts of legislation, and a critical reassessment of earlier decisions rather than a strict adherence to prevedent in all cases. In its appeal for a more modern and suitable constitutional jurisprudence this book calls for some radical changes and should encourage the legal profession and the judiciary to re-examine the foundation of existing law and its relation to the present social and political structure of Canada.

Covering all of the substantive grounds on which a claim may be brought, this definitive new work provides unrivalled analysis and guidance on the law of judicial review. Written by three experienced practitioners, Judicial Review: Principles and Procedure includes chapters on the most common grounds for bringing a claim, such as procedural fairness and irrationality, but also covers emerging grounds such as delay on the part of public bodies and error of fact. In addition, the authors provide a separate, detailed treatment of areas such as administrative policies and the public sector equality duty. Each element of this complex area of law is carefully broken down to ensure that answers are always easy to find and, where the law is in doubt, the dispute is concisely stated and the view most likely to be preferred by the courts is expressed. The book analyses in detail the issues that are likely to arise in practice, with thorough and up-to-date reference to case law throughout. It incorporates the jurisprudence arising out of the Human Rights Act 1998, providing practitioners with a complete yet practical treatment of each relevant topic. The book contains comprehensive coverage of procedural matters in each stage of a claim, from pre-action to costs, and includes a chapter on European Union law from Marie Demetriou QC of Brick Court Chambers, providing a uniquely full treatment of all the issues which might be encountered in practice.