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Marbury v Madison is a United States Supreme Court decision which (among others, I'm cherrypicking) establishes the power of the judiciary to be the final authority on deciding what the constitution is.

That view is very vastly adopted by the modern western democratic world (to my knowledge). My question is, what would a law system where that wouldn't be the case, look like ? Is there some reflection or thesis or something trying to be a comprehensive study, over what the pros and cons of the two systems are ? And are there relevant (modern) historical examples ?

A justification for doing things that way would be entrusting the Constitution (or the fundamental law, whatever its label is) into a vast and (in some measure) plural and proportional body whose members got the trust of the people, instead of a small number of nonelected people. An obvious con would be that the judges of the constitution would be partisan.

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    Answers to this are liable to run into definition problems (or at least differences). Do you consider a constitution to be a single document, or do uncodified constitutions count? Similarly, if a constitution (or basic laws) aren't entrenched, do you still care. If you answer yes to both the above, someone will start talking about the UK.
    – origimbo
    Feb 13, 2023 at 11:36
  • Hmm, good point. In the UK's case, I'd argue that oversight over the constitution is dissolved between the sovereign (for obvious reasons), the speaker, the prime minister and the courts (i.e when Boris tried to prorogate parliament and couldn't, the speaker had a hand in overturning it and the final say went to some sort of supreme court). So while the judiciary doesn't have sole oversight, I wouldn't agree it's an example of oversight being entrusted in the popular representatives alone. Still a very good example, though. Feb 13, 2023 at 12:15
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    Don't forget Parliament itself. UK courts can't declare properly passed Acts of the UK Parliament invalid (that's not how judicial review works in the various legal systems in the UK), and new constitutional law can be passed by simple majority in both houses (except in some weird cases where there are extra steps).
    – origimbo
    Feb 13, 2023 at 14:24
  • New Zealand and Israel are similarly structured with respect to the courts and having no codified constitution. Australia does not count as it's Constitution is found in several documents but is Codified.
    – hszmv
    Feb 13, 2023 at 15:37
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    I'm also reminded that in some cases the Supreme Court has formally given up that kind of authority, e.g. when Pakistan's SC admitted the "doctrine of necessity" sanctioning Zia's coup, i.e.. making the military formally the ultimate decider. Feb 14, 2023 at 4:51

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The Netherlands does not allow courts to assess the constitutionality of acts of parliament or treaties. From the English translation of the Dutch constitution, article 120 reads:

The constitutionality of Acts of Parliament and treaties shall not be reviewed by the courts.

Testing whether a law violates the Dutch constitution is currently a task of the legislative branch. This is something the current government wants to change by introducing judicial oversight. From a 2022 press release by the Dutch government:

Constitutionele toetsing door de rechter betekent dat er bij de toepassing van wetten wordt gekeken of die niet strijdig zijn met de Grondwet. In sommige landen bestaat constitutionele toetsing door de rechter al (zoals de VS, Duitsland en Finland), maar de Nederlandse Grondwet verbiedt de rechter om wetten te toetsen aan de Grondwet (art. 120). De gedachte hierachter is dat het uitsluitend aan de wetgever is (en niet ook aan de rechter) om bij nieuwe wetten je ervan te verzekeren dat deze niet in tegenspraak zijn met de grondrechten uit de Grondwet. Als het aan deze regering ligt komt daar dus verandering in.

Translated by me:

Constitutional review by judge means that when laws are being applied, they are checked for compliance with the constitution. In some countries constitutional review by judge already exists (such as the US, Germany and Finland), but the Dutch constitution forbids judges to check if laws comply with the constitution (article 120). The idea behind this is that it is exclusively up to the legislator (and not also up to the judge) to ensure new laws don't violate the fundamental rights in the constitution. If it is up to this government then that will change.

The letter attached to that article informs the parliament of the proposed changes (in Dutch).


As for academic studies into the Dutch system without judicial review, see these publications (the first two seem to be open access):

Van der Schyff, G. (2010). Constitutional Review by the Judiciary in the Netherlands: A Bridge Too Far? German Law Journal, 11(2), 275-290. doi:https://doi.org/10.1017/S2071832200018526

de Poorter, J.C.A., 2013. Constitutional Review in the Netherlands: A Joint Responsibility. Utrecht Law Review, 9(2), p.89-105.DOI: https://doi.org/10.18352/ulr.229

This one seems to be partly accessible through Google Books:

van der Schyff, G. (2010). Judicial Review of Legislation: A Comparative Study of the United Kingdom, the Netherlands and South Africa. Retrieved from https://books.google.nl/books?id=ACiMZstFyMAC

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  • Of course, I should have thought of this one : I've seen it in class. The scrutiny over respecting treaties is higher than that over the constitution, right ? From memory there was some sort of dual provisions about it, prior and after ratification of the treaty, but I may be wrong about that. Feb 14, 2023 at 0:17
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    @Gouvernathor I'm not sure about the last part on ratification. The first part about international treaties overruling is correct, that's one judges are allowed to consider. Per article 94: "Statutory regulations in force within the Kingdom shall not be applicable if such application is in conflict with provisions of treaties or of resolutions by international institutions that are binding on all persons."
    – JJJ
    Feb 14, 2023 at 0:21
  • Although in the NL case (as with most of the other answer), this is a case where ordinary laws aren't reviewed wrt the constitution, but the constitution can still be applied by the courts directly, right ? So the judges still offer an interpretation of the constitution, even if that can be overruled by an ordinary law (like in the UK) and if they're not the only ones able to interpret it. Feb 14, 2023 at 0:24
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    @Gouvernathor in my understanding it only limits testing of parliamentary acts against the constitution. According to this Wikipedia article in Dutch, decisions by lower level legislators (e.g. provinces, municipalities, etc.) can be tested for constitutionality. I'm not sure how often the constitution is considered directly. Some constitutional articles defer to exceptions defined in regular law, e.g. in article 4: "subject to the limitations and exceptions prescribed by Act of Parliament".
    – JJJ
    Feb 14, 2023 at 0:36
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Interpretation v. Invalidation

Every modern Western style political system has courts or court-like institutions that interpret all legal pronouncements with legal force, including any sort of basic law or constitution, whether or not it is entrenched, and whether or not it is contained in a master document or spread across multiple enactments. Even the minimal norm that the courts should require everyone including the government to act lawfully that this generally implies, is not insignificant.

For example, even in the U.K., discussed below, or the Netherlands, discussed in the answer by JJJ, a judge in an ordinary trial court could resolve a conflict between an act of parliament and a local council ordinance, or could determine that a public official took an unlawful act that should not be given legal effect when determining the legal effect of the official's actions.

The question of judicial review is not whether courts have a role in interpreting foundational authoritative texts and norms, but if they can, in the extreme case, hold that is duly enacted law or government action is invalid or wrongful even if taken by the highest legislative or executive branch authority.

Also, in many countries, especially those with a civil law tradition, even in modern legal systems, not every judge can engage in judicial review of the constitutionality of a law or government action, only judges of a single, special constitutional court charged with that duty that is procedurally disengaged from the ordinary business of courts in interpreting the law. Prior to World War II, few countries with a civil law legal tradition recognized any power of judicial review, and even now, not all civil law countries (e.g. the Netherlands as noted in an answer from JJJ) grant the courts this power.

Only a minority of countries fuse constitutional interpretation of an entrenched supreme single constitutional document as fully with the ordinary business of judicial legal interpretation. In the U.S., any U.S. local, state, or federal judge can declare a law unconstitutional (contrary to popular belief, the U.S. does not reserve this power to the U.S. Supreme Court), but most countries don't allow this. The U.S. is also exceptional in that, unlike most judicial systems, many judges are elected and most judges who are not elected are political appointees, rather than civil servants in the usual sense selected based upon merit. This arguably gives the U.S. judiciary greater legitimacy to resolve the political questions found in many issues of constitutional law, than in countries where judges are (in theory and by means of appointment, at least) apolitical civil servants.

So, to some extent, the different means and scopes for enforcing political norms and protections for individual rights are just a difference of degree or personnel.

The Case Of British Parliamentary Supremacy

The United Kingdom is famous for having no truly entrenched laws (i.e. for having no statutes that cannot be overruled with an ordinary act of parliament) and for not having the laws governing the basics of its political organization and fundamental rights enshrined in a single document called a "constitution."

In that system, individual legislators have recognized a heightened, almost quasi-judicial, obligation to respect democratic political norms and to honor human rights, since legislative overreaching is not easily corrected by the courts. When the system is working properly, elected officials feel a sense of responsibility to the system as well as to their constituents and their partisan causes and recognize that while ordinary political issues are partisan, that a handful of core political norms call for legislators to put process and decency, over policy and partisanship.

In a system without judicial review, legislators know that there is no "safety net" in the courts to undo their actions if they act irresponsibly, so the real world cost of crossing the line of political or human rights norms has greater stakes. In contrast, in countries with strong judicial review, legislators can pass legislation for partisan purposes that offend these norms, knowing that this is just theater that is morally acceptable because the laws that they vote for will be overturned later by the courts.

Notably, in the handful of years under the current United States Constitution adopted in 1789, and before Marbury v Madison was decided by the U.S. Supreme Court, President George Washington felt such an obligation when exercising his veto power.

This was supplemented in the post-World War II era by treaties, most notably those associated with the Council of Europe, which is primarily an international organization that seeks to get European countries to commit by treaty to protections for individual human rights, and by treaties associated with the European Union and its various related European free trade arrangements.

While the U.K. parliament, in theory, can abrogate a treaty even when the treaty on its face provides no means for exiting from the treaty, there is a strong political norm towards not leaving a treaty except by the means set forth in the treaty.

Leaving a treaty otherwise could be subject to international sanctions. Politically, formally taking the steps to abrogate a human rights treaty could have electoral costs for the political parties and individual members of parliament backing that move. Even leaving the European Union in Brexit, according to the procedures in the E.U. treaties was highly politically controversial, over something far less fundamental than intentionally abrogating human rights.

It also helps in such a system to have an electorate who is acculturated politically over generations to share core values about the democratic political process and human rights that the public cares enough about to hold its electoral officials accountable for, if those officials take steps to abrogate those norms.

Judicial Review v. Parliamentary Supremacy

This seems very different from the system in countries that have judicial review of legislation and government actions for constitutionality by some court or courts with the authority to do so.

But ultimately, somewhere down the line, upholding a political norm or human rights norm embedded in some legal enactment or shared understanding is something that some group of senior political actors, be they judges or legislators or executive branch officials, or military officers, must do.

Ideas and laws written in books don't spontaneously implement themselves. Some person in a position of power has to draw the line.

In a system with judicial review, judges take on the role of caring about process and human rights more than partisan priorities, and legislators are free to act with less regard for these higher principles. In a system with parliamentary supremacy, courts have to wear both hats.

Viewing this as a matter of processes and political roles in a legal system, rather than viewing judicial review as an indispensable institution, is appropriate. This is because, in the Western political tradition, countries that lack this political institution have not necessarily been more unjust, tyrannical, and undemocratic, and countries with this political institutions, have not necessarily been above reproach in their respect for democratic values and human rights. The institution of judicial review is often critical in an overall political system which has developed a political culture that heavily relies upon this institution, but its importance is not necessarily universal across all political cultures.

For example, the Netherlands and the U.K., which have entirely or mostly lacked judicial review of legislation by courts, have not historically been particularly egregious in their lack of respect for democracy and human rights.

East Asian Political Theory Compared

In East Asian political theory rooted in Confucianism, the debate over how to prevent the government and people in authority from doing unjust things focused on trying to choose leaders who were trained in moral analysis through the study of the Confucian classics and examinations on their application, and by choosing good men (it was almost always men back then) rather than having a "rule of law" which was viewed as something inherently subject to manipulation by perfidious lawyers with questionable motives.

The notion was that "there is always sky above the sky", i.e. that everyone but the Emperor of the entire nation himself, always has someone above them to whom they must submit if they get out of line.

The best that society could do in the final step of the Emperor himself, was to train the Emperor to act justly with training from the Confucian classics, to have an Emperor who literally owned everything and everyone and like a property owner had a personal interest in making what he owned (everything and everyone in his Empire) as valuable as possible, and who as a hereditary monarch did not have to attain his position out of narcissistic ambition. Society had to trust that this one person out of everyone in the country, the Emperor, did indeed, as claimed, benefit from divine guidance or was a god himself.

In much the same way, in the U.S., the people and the system has to trust that the U.S. Supreme Court with its final say on the legality of government actions and laws, will do the right thing, as a result of their careful means of selection and long training in making these decisions.

In both the cases of the Emperor, and in the case of the U.S. Supreme Court, in reality, the results are not alway perfect.

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  • When I asked the question, I pictured things more like some US politicians described the situation before Madison : the constitution as an agreement between states to inspire states' actions (in a federal context) and congress's laws, but with no justiciable value. Which is reflected in Washington's first ever veto, btw. But your answer certainly more than fulfills the question as I asked it. Thanks a lot. Feb 14, 2023 at 0:11
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    With regards to the Chinese emperor example; a similar situation existed in the West before the Enlightenment. Not disagreeing, just adding context; that philosophy of government isn't totally foreign to a western mind.
    – Ryan_L
    Feb 20, 2023 at 23:55

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