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Contrasting Different Approaches to Judicial Review on Grounds of Democracy

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Democracy is a type of government in which the rule is sustained according to the peoples of the state, in our case the nation. Modern Democracy is not only to sustain the rule of the majority but also to protect everyone in the state from other parties, externalities, themselves and the state itself. This type of democracy is called a pluralist democracy. One important component of the pluralist democracy for its functioning is a constitution that is neutral, effective and democratic itself. The reason we need a constitution is to, first of all, making the state predictable via increasing its rationality, then it is to set rules that cannot be violated by any means, which can be in forms of negative rights; and lastly, it is to set areas of freedom for peoples via positive rights. If all these are done with the plurality of the nation and liberalism on the mind, the constitution will be a democratic one, as long as it can be enforced! One other important aspect of a constitution is its consistency; a constitution needs to be consistent and predictable to let its citizens live and invest without doubts. A consistent constitution provides for stable growth, peaceful politics and content citizens.

The Way to Uphold Constitutional Consistency and Enforce the Constitution

The consistency of the constitutional order is so important that the states felt the need to create certain mechanisms, to enforce it. We call these mechanisms collectively as Judicial Review, its mission is to supervise the conformity of new legislative and executive decisions with the constitution and cancel them if they aren’t. There are many ways to perform Judicial Review, but it is generally based on two different experiences; one of the USA and Europe.

The type of Judicial Review is the conclusion of different historical experiences. In the USA while it is the Judiciary themselves, responsible for the review; in Europe, there is a separate institution that is specialised on the matter. This mainly due to the differences between the understanding of the term “Separation of Powers”. While the USA has a strict separation of powers, which lets the Judiciary not bound by anything and anything at all enabling it to perform jurisdiction over all legislation and executive ex officio; European separation of powers was one of fusion and parliamentary primacy, which lead the judiciary to not be able to act on its behalf, until separate institutions called constitutional courts were created. The USA’s system lets all the courts to supervise and enforce constitutional consistency, while the European system focusses the effort into a single institution called the constitutional court.

The system of the USA can be traced back to the Marbury & Madison decision. Marbury & Madison decision was made under a conflicting situation between the law and the constitution. The court, in the end, decided to abide by the constitution and created a new jurisdiction. Hence, the American system was created via jurisdiction and it is free to perform its power via all of its courts (Kaboglu, 2018, p. 327).

The European system was based on a series of events since the French Revolution. After the French Revolution, a constitutional council that wasn’t separated was formed. This was due to the revolutionaries’ desire to protect the executive’s dominance. The systematization of the European system was made by Hans Kelsen. He wrote the first constitution of the Austrian Republic after the Great War, creating a constitutional court, specialised for the job.

Comparison of Three Examples

We can set three examples of Judicial Review from three countries, to better see the differences between them. The United States of America is still very committed to the system it created by itself, while Turkey is having a strictly European system; and then there is the UK, similar to the American system in many ways but still considerably different.

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The US and UK systems have less difference than they have with their European counterparts. Both systems lack an institutional constitutional court mechanism but they differ in their constitutions. While there isn’t a codified constitution in the UK, the US has one; drastically affecting the approach the judicial review. “The main difference between the approaches to judicial review in the United Kingdom to that of the United States is that the North American countries rely on statutory based grounds of judicial review whilst the United Kingdom relies on common law” (All Answers Ltd., 2018). This leads to a stricter review in the US while there is a less strict but more flexible one in the UK, also protecting parliamentary domination.

The Turkish system differs more from the formers, due to it being a European based system rather than an Anglo-Saxon one. The Turkish system has a dedicated constitutional law which has the single authority of constitutional review. This leads to a more uniform but slower working system. It also allows for the complaints from the citizens. Turkish system still works on the fusion of powers while it also tries to separate the judiciary from the executive or legislative branches on the grounds of judicial review.

The main difference between the two main systems is that one is institutionalised and dedicated, while the other is more general and flexible. The European system generally needs a realisation by a judge that works explicitly on constitutional law or a complaint by the citizen while the Anglo-Saxon system generally works on the spot of the trial.

The One Who is More Democratic

“Today, the constitutional democracy is defined in terms of the new constitutionalism, which assumes that constraining majority rule with rights and review is a good thing” (Sweet, 2014, p. 163). This assumes that the more centralized systems of judicial review are more effective at limiting the tyranny of the majority, by blocking populist legislation, this is one of the important traits of pluralist democracy. Whereas more centralized systems are also prone to exploitation by the opposition parties, due to them working on a complaint, opposition parties generally use them to at least block the process until they gain more popular support. Because of this, there is no one real answer to our question. The American system of review provides the speed and generality that is needed to protect the rights and do it fast, while also providing a set of rules as guidelines; but it is weaker in the sense of consistency because since every jury has the right to do judicial review it may be very complicated and possibly not as uniform as the European system, it also cannot do an abstract review, it needs the law to come into conflict with the constitution at the court. The European system is the opposite: It is not as flexible nor fast, but it is very uniform and can perform an abstract review, creating more powerful but less broad control. The UK on the other hand, still exercises parliamentary primacy and Judicial review is limited with the Common Law.

The main problem is about the understanding of Democracy. If it is more democratic to have a more broad but less powerful review, which is based on a strict separation of powers, we are implying that the generality of protection is more important than the enforcement ability of it; and if it is more democratic to have a powerful but less general review than we are implying the opposite. In the end, if we are to form a spectrum between the three in which the general but less powerful is 0 and central but more powerful is 1, we end up with Britain close to 0 while Turkey is closer to 1 and the US being in somewhere in the middle. They all try to apply the principles of democracy and law i.e. pluralism, consistency etc. but in different ways that aren’t in no way “better” or “worse” than others.

Conclusion

I believe, that the argument of democratic judicial review is a dialectical one. We have two opposing theses that are dichotomic, but they aren’t different. The more beneficial approach would be to synthesize the two arguments and create a system that benefits from the best of both worlds. In this sense, the American system is superior to The British and Turkish ones, due to its ability to both set unchanging rules via a constitution, while creating a generalised system, so that everyone has immediate and easy access to constitutional consistency. Still, this is not an argument about which one is more “Democratic”, rather an argument about which one is more effective. Hence, all the systems are democratic in their way and cannot be ranked objectively in those terms; but if total efficiency, which is the cumulative degree of power and generality, American System might be said to enjoy the best of the rest.

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Contrasting Different Approaches to Judicial Review on Grounds of Democracy. (2022, September 01). Edubirdie. Retrieved February 8, 2023, from https://edubirdie.com/examples/contrasting-different-approaches-to-judicial-review-on-grounds-of-democracy/
“Contrasting Different Approaches to Judicial Review on Grounds of Democracy.” Edubirdie, 01 Sept. 2022, edubirdie.com/examples/contrasting-different-approaches-to-judicial-review-on-grounds-of-democracy/
Contrasting Different Approaches to Judicial Review on Grounds of Democracy. [online]. Available at: <https://edubirdie.com/examples/contrasting-different-approaches-to-judicial-review-on-grounds-of-democracy/> [Accessed 8 Feb. 2023].
Contrasting Different Approaches to Judicial Review on Grounds of Democracy [Internet]. Edubirdie. 2022 Sept 01 [cited 2023 Feb 8]. Available from: https://edubirdie.com/examples/contrasting-different-approaches-to-judicial-review-on-grounds-of-democracy/
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