On the spread of judicial review

[Paper Keywords] judicial review, constitutional, dissemination
[Abstract] judicial review in order to reflect the unique value it has become constitutional system involves an important pArt of the system, and is the world's absorption of more and more countries. And in the history of the judicial review system in the world spread within the two stocks experienced a wave, an appeared in a post-war Europe, and the other shares of the Axis in World War II. subject to judicial review under the national system of different causes can be divided into direct impact on the U.S. model, protection the interests of minority-and as a new bill of rights protection system type and other types.


One, of the problem
In the 21st century, constitutional judicial review system as an important pArt of the world have been recognized. But it is a step by step how to set up the world within it? But few scholars to explore. Until the early 20th century, as constitutional an important pArt of the judicial review system is just the kind of American phenomenon. In the United States, the Supreme Court decision is usually with the federal laws of the state or federal constitutional law are the same. and the United Kingdom or other British colonies compared to the U.S. legal system has its unique , that is the United States Supreme Court as a legitimate institution, the constitutionality of their actions is recognized by Congress. Contemporary American jurist Bernard SchwArtz pointed out that the United States made a real contribution to human progress is to develop a the power of thought to the legal constraints. Article traces the history of the world system of judicial review is accepted as one of the process.

Until 1920, only a handful of other countries - almost all in Latin America (such as Mexico in 1917 constitution) and the Nordic (Norway, although the 1814 Constitution does not provide for judicial review, but in 1885-1930, the Norwegian Supreme Court Several laws unconstitutional decision, similar as well as Denmark and Sweden) adopted a system of judicial review. These countries are in the U.S. constitutional concept of the mid l9 century under the influence of the judicial review into its own among the constitutional system.

Shares subject to judicial review system in the first wave, in a post-war Europe. Issued to those defeated in the new constitution also established a Judicial Review. After the war the first to introduce the judicial review system of the country is Czechoslovakia , although this under the 1920 Constitution established the Constitutional Court on the constitutional complaint had never been any effective decision making, and disbanded in 1938. In Austria, the famous jurist, Professor Hans Kelsen, established in 1920 under the guidance of the Austrian Constitutional Court, by contrast is a more significant sign. This is the Constitutional Court to oversee and guarantee the implementation of the constitution and the establishment of specialized institutions for the first time appeared on stage in the history of the Austrian Constitution in 1920 clearly established their own The Constitutional Court is given on high, and can declare the conflict with the Constitution the principle that the law is invalid.

Thus, before the start of World War II, judicial review system exists in the Western Hemisphere, primarily, and only in the United States plays a distinct and positive role. Judicial review of the legal system is to achieve effective control of power generated, so, some scholars said: " America's unique contribution to constitutional theory of judicial review system. "However, from 1945, the establishment of judicial review, another wave came.

Shares subject to judicial review of the second wave of the system after World War II Axis Group from the beginning. The Japanese government's new draft constitution under Article 73 of the Meiji Constitution, the constitutional amendment process, after the Privy Council, the resolution of the House of Representatives, from Emperor Hirohito in 1946 on November 3 formally promulgated, implemented the following year on May 3. <<Japanese Constitution>> in the principle of national sovereignty, under the guidance of the principle of separation of powers established in order to ensure enforcement of the Constitution, in Article 81 clearly provides for judicial review system. "The Constitution expressly grants the Supreme Court decision of any law, order, rule or official documents of the constitutionality of the power of .1949 on the promulgation of the Constitution of the Federal Republic of Germany marked the Federal Republic of Germany to accept an independent judiciary censorship J. Since then, the German Federal Constitutional Court and the United States Supreme Court in the past half-century with the people left a lot of important and interesting decisions, they also became the world's most active constitution court. Italy is the third member of the Axis Group, the Italian Constitution .1948 explicitly recognized the need for the establishment of judicial review system, in its 1848 Constitution, Article 73 provides that: "The whole body of citizens who have the right to interpret the Constitution but legislative power. "establishment in 1956, the Constitutional Court is the judicial review system fell to the reality.


Judicial review system also into the former socialist countries of Eastern Europe. The former Yugoslavia in 1962 had created a constitutional court. In accordance with the Socialist Federal Republic of Yugoslavia in 1974 Constitution, the Constitutional Court of Yugoslavia Socialist Federal Republic of Yugoslavia parliamentary elections in hospital long and 13 judges. two members elected from each of the Republic, one from each autonomous province of the elected members to participate in the Yugoslav Constitutional Court. Yugoslav President and judges of the Constitutional Court are elected for 8 years, and shall not re-elected served as president of the Yugoslav Constitutional Court or a judge from office, "such as'. Czechoslovakia was established in 1968, the Constitutional Court, and the Czech Republic and Slovakia regarded the system remain today. However, subject to judicial review system in Eastern Europe, mainly in the 20th century, late 80s, early 90s after the Soviet Union and drastic changes, such as Hungary in 1990, Romania in 1991, Latvia and Ukraine were established in 1996, the Constitutional Court. Of course, the most important thing is the Russian Constitution, created in 1991 Court. it had asked Russia's citizens have voted down a predetermined international travel must carry a passport laws.

Meanwhile, on the other side of the wave of establishment of judicial review system is also spreading. When in 1947 India from the British Empire, when independent of India to the provisions of the Constitution makers can violate the fundamental rights or bill of state power of judicial review. Finally, in 1950 India adopted a new constitution and established the Indian Supreme Court's judicial review system.

Second, countries subject to judicial review system Analysis
(A) of the United States directly affect the type
This type of countries, including the 19th century Ye Gang and the Asian countries of Latin America gained independence after World War II Axis powers (Japan, Germany, Italy). An explanation of this situation is due to American power and prestige. Latin America countries during the course of the struggle for independence have received various kinds of assistance the United States, this time they are more subject to judicial review system is out of favor in exchange for more U.S. aid relationship, in fact, judicial review of their system at this time is only a display. In the 19th century, Europeans take for granted that the United States is the cultural and intellectual backwater, and very few legal thinkers in Europe and the United States Constitution, the laws put into practice in particular Research effort. However, the Second World War changed the United States in the world position. the United States by virtue of its economic and military strength to win the respect. scholars around the world are usually financial institutions in the United States and information support of the United States began the legal, political, constitutional practice Research. And Americans who are constitution or the constitution-making process of the foreigners involved in some suggestions. which defeated Japan, Germany, Italy, embodied the most obvious.

Japan's constitution in 1946, initially by a committee composed by the Americans in the United States occupation forces in Japan, General Douglas MacArthur commander of the drafting office, and the operating mode of the Japanese Supreme Court is entirely copied from the United States. So we can say unequivocally that Japan is the lead thinkers in the United States under the shadow of the U.S. armed forces copied the American system of judicial review.

(B) the type of protection of minority interests
Behalf of the state of this type are India, Canada, Belgium and South Africa. When in 1947 the British Empire in India from the rule in the time of independence, the Constitution of India provides for makers to violations of fundamental rights of the people or the state power judicial review of the bill. However, this change is clearly not the prestige or military power by the United States to explain. the Indian elite prestigious universities in the UK are usually been thoroughly indoctrinated with a British law, constitutional and political thought, and little is known about the experience of the United States. the liberation of Italy, has conquered the U.S. military in Japan and Germany, but also in India there have been few. Therefore, the above can not prove that these factors are copying the U.S. model in India for the purpose of establishing judicial review system. Links to Research Papers Download http://www.hi138.com subject to judicial review of the Indian system of a better explanation is that the system can meet an important need - the protection of minorities interests. India has a large number of minorities and sects. Historically, these ethnic and sectarian long the dominant question is oppressed by the majority, therefore, India has become a classic example. As time passes, more and more countries in the latter half of the 20th century and India embarked on the same road that the use of judicial review of a system to maintain national harmony, as well as ethnic minorities, religious minorities and other minority groups in the fundamental rights of citizens.

A recent benefit for the protection of minorities is the Constitution promulgated the Constitution of South Africa. When apartheid supporters who agreed to the handover of power to an elected majority of black South African government, those minority population white people's rights must be protected by the new Constitution. South African Constitution, many mechanisms are designed to protect the rights of white set, and to ensure that white people can be in the new system continue to enjoy solid political rights. As in the judicial review can be well protected under the principle of ownership of South African whites, so it will not make them feel a pinch in the country did not become a minority portion, even if they themselves who are separated and isolated groups.


Thus, this choice by the United States Supreme Court, in Marbury v. Madison manifested in the doctrine of judicial review after World War II was finally able to spread worldwide. To some extent, especially for Germany and 13, the U.S. military and the United States as a functioning democracy that promote the reputation of the further spread of judicial review. However, on the other hand, the doctrine of the Supreme Court granted the protection of minorities, minorities, minority rights and cultural significance of judicial review also contributed to the latter half of the 20th century, the spread. And this sense, our system of judicial review as the origin of Marbury v. Madison to find in the can not.

(C) of the Bill of Rights as a protection system for the new type of judicial review that shares the wave of global expansion may be another important reason is that those who still believe the legal supremacy of the state to accept the bill of rights. This type of behalf of the state with New Zealand, Israel, United Kingdom.

New Zealand is an example of .1985, the New Zealand's Acting Prime Minister proposed to the Bill of Rights and Freedoms in Canada modeled, the creation of their own bill of rights and the establishment of American-style judicial review system. However, the object of judicial review is also a great sound system. In the end New Zealand in 1990 passed a new bill of rights. But the bill has only the effect of common law and the provisions of the bill does not expressly create any other provisions of the law invalid. New Zealand Court of Appeal in compliance with this limitation, but part of the judges are still some legal and effective in maintaining the premise announced that they are in conflict with the Bill of Rights. It also reminds us of Canada declared the law unconstitutional for those decisions. In both countries, lawmakers in Under strong political pressure to make them conform to justice through the legal requirements. In Canada, by the way can not ignore the judge's ruling reflected, and in New Zealand is in conflict with the law repealed. This is the difference between them in Canada, the legislature must for those who ignore the court ruling to change the law, and in New Zealand, the legislature must follow the procedures to repeal those laws. Canada and New Zealand are the countries believed in the supremacy of law, but at the same time, in fact, , then the supremacy of law has lost its status.

England is perhaps the last stronghold of law doctrine, even if Kirk had long boldly judge that "if the act of departure from the parliamentary human rights and rational, then the common supervisory control to deal with this behavior, and can declare it void", but also supremacy of law doctrine has not changed the status in the UK. but even so, when the British Parliament in 1998 adopted the Bill of Rights, the judicial review system is also becoming more widely accepted. As the New Zealand Bill of Rights, the British Bill of Rights does not so that the law conflicts with it is invalid, but the bill was able to guide the judges, like the Bill of Rights from the perspective of consistent interpretation of the law, and it also judges the law effective in maintaining the premise of the Bill of Rights under the sentencing laws in conflict with the case provided a possibility.

(D) other since the 50 years since the 20th century, and many other countries because of some other line with their particular political needs of the reasons to accept the judicial review system, and these reasons can not simply be reduced to a few listed above are species. that a few countries, such as France, Spain, Sweden and Eastern European countries and so on. Perhaps the reason why judicial review is generally accepted in these countries because those countries and regions that the U.S. experience shows that this stable democratic system in the positive role.

Third, the conclusion of judicial review system in the spread of standing wave, and from the changes in Eastern Europe after the An Yiping and Canada, from Latin America to race against the volatile South Africa, Great Britain from the beaten track to the wolves waited for opportunities in Israel, you can see this wave left after scouring the Fertile soil. back at the development process of judicial review, it is difficult to simply say that judicial review is good or bad, we should do is to analyze the States to accept and implement judicial review of the reasons for that, what model, the effect is what. the only hope for national prosperity lies in the way of a mechanized system is not desirable. the system can only be found in the nature of the problem to be solved After the product of ripe, it should be, as the case may be, but not for fashion and mechanically. Links http://www.hi138.com Research Papers Download