Doctrines
Judicial Review
Citation Formats
General Reference
APA Style
BibTeX
Origin Established for United States federal courts by Marbury v Madison (1803). Civil law jurisdictions generally developed the analogous power later, through dedicated constitutional courts, such as Austria Constitutional Court (1920) and Germany Federal Constitutional Court (1951).
Judicial review is the power of courts to examine the constitutionality of legislative and executive acts and to strike down those that conflict with a constitution. The modern doctrine was established for the United States federal judiciary by Marbury v Madison (1803), though the underlying concept, that a fundamental law can limit what an ordinary legislature may enact, has earlier antecedents, including the English jurist Sir Edward Coke dictum in Dr. Bonham Case (1610). Civil law jurisdictions generally developed an analogous power later, and through a dedicated constitutional court exercising it exclusively, rather than through ordinary courts exercising it directly as in the United States.
Facts
Origin PeriodEstablished for United States federal courts by Marbury v Madison (1803). Civil law jurisdictions generally developed the analogous power later, through dedicated constitutional courts, such as Austria Constitutional Court (1920) and Germany Federal Constitutional Court (1951). 1 Core PrincipleConstitutional review is generally exercised exclusively by a single dedicated constitutional court, following the model Hans Kelsen designed for Austria's 1920 constitution, rather than diffused across the ordinary judiciary as in the United States; an ordinary judge in most civil law systems cannot personally decline to apply a statute as unconstitutional and must instead refer the question to the constitutional court. 2Tradition: civil-law Core PrincipleCourts may review legislative and executive acts and, where they conflict with the constitution, declare them invalid. 1 Disputed
Core PrincipleJudicial review in the United States operates alongside qualified immunity, a judicially created doctrine shielding government officials from civil liability under 42 U.S.C. Section 1983 unless they violated a clearly established right; the doctrine's own textual basis is disputed. Justice Clarence Thomas, concurring in Ziglar v Abbasi (2017), wrote that the Court's own qualified immunity framework substitutes its own policy preferences for the mandates of Congress, and other judges and scholars have argued the doctrine lacks support in the statute's own text or legislative history. 3 Whether qualified immunity is a legitimate judicial gloss on Section 1983 or an unsupported judicial invention is a live and unresolved dispute among sitting justices and scholars, not a settled question. Cross-Tradition Connections
Established By
Formulated By
Marbury v. Madison (1803), already recorded on this atlas as established-by Judicial Review, is Marshall's own opinion; this edge names the person, the case edge names the case.
Why this is disputed. His dictum in Dr. Bonham's Case (1610), not itself minted as a landmark case here, is read by many historians as an early seed of judicial review; other historians read it more narrowly, as a rule of statutory interpretation rather than a claim of judicial power to void an Act of Parliament. Both readings are live in the scholarship.
Held Differently
Civil Law, Legal Systems Civil law jurisdictions generally exercise constitutional review through a single dedicated constitutional court rather than diffusing it across the ordinary judiciary as the United States does, a different account of the same underlying power rather than a rejection of it.
In Legal System
Named here for the documented United States common law origin of the modern doctrine through Marbury v Madison. Civil law jurisdictions developed an analogous power later, generally through a dedicated constitutional court rather than the ordinary judiciary.
In the Other Atlases
Sources
Reader Challenges (0 open reader challenges)
No disputes yet. Spotted an error or a better source? Open the first one.
Sign in to dispute this or suggest a correction.
View At A Past Year
The atlas records no dated fact of its own for this entry, so there is no other year to choose.