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judicial review

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 judge 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 eect 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,
Marshall, John
fourth chief justice of the United States (180135), in Marbury v. Madison (1803), that the Supreme Court
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of the United States had the power to invalidate legislation enacted by Congress. There was, however,
no express warrant for Marshalls 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 Courts own ruling, plus the absence of eective 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 facti.e., only laws that are in eect or actions that have already
occurred can be found to be unconstitutional, and then only when they involve a speci c 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 eect). In other countries (e.g., Austria, Germany, South Korea, and Spain) courts can exercise judicial review only after a law has
taken eect, though they can do so either in the abstract or in concrete cases. Systems of constitutional judicial review also dier 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 in uence 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 speci cally incorporated
judicial review into their constitutions. (This number does not include the United States, whose constitution still includes no mention of the
practice.)

C. Neal Tate

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