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  • Print publication year: 2011
  • Online publication date: August 2017

CHAPTER 5 - CONSTITUTIONAL COURTS AS LEGISLATORS ON MATTERS OF JUDICIAL REVIEW

Summary

One particular aspect in which it is possible to identify interferences of constitutional courts in the legislative function is precisely in matters of legislation on judicial review, particularly in countries with concentrated systems of judicial review, in which not only constitutional courts have created rules of procedure in spite of the existence of a special statute establishing them, but also they have assumed new powers of judicial review and created new actions that can be filed before the courts.

CONSTITUTIONAL COURTS CREATING THEIR OWN JUDICIAL REVIEW POWERS

The Judge-Made Law Regarding the Diffuse System of Judicial Review

In the diffuse, or decentralized, system of judicial review, being a power attributed to all courts, judicial review has always been deduced from the principle of the supremacy of the Constitution and of the duty of the courts to discard statutes contrary to the Constitution, always preferring the latter. Such power of the courts, consequently, does not need an express provision in the Constitution that instructs courts to give preference to the Constitution. As Chief Justice Marshall definitively stated in Marbury v. Madison (1 Cranch 137 (1803)):

Those who apply the rule to particular cases, must of necessity expound and interpret that rule … so, if a law be in opposition to the constitution … the court must determine which of these conflicting rules governs the case: This is the very essence of judicial duty. If then, the courts are to regard the constitution, and the constitution is superior to any ordinary act of the legislature, the constitution, and not such ordinary act, must govern the case to which they both apply.

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