Responsive Judicial Review by Dixon Rosalind;

Author:Dixon, Rosalind;
Language: eng
Format: epub
Publisher: Oxford University Press, Incorporated
Published: 2023-03-15T00:00:00+00:00

B. Countering Dysfunction

Constitutional—or ultimate appellate—courts worldwide have a range of different institutional features and powers. Some courts enjoy abstract powers of review—or powers to review legislation ex ante before it is enacted and not to consider its application or validity after enactment. This, for example, was the model of judicial review advocated by Hans Kelsen and then adopted in Austria in 1920.23 It also had important precursors in Latin America, in the actio popularis introduced in Colombia in 1910, and in Venezuela prior to 1920.24 And it was common in many European countries for much of the twentieth century.25 France only moved to adopt a mix of abstract and concrete review in 2008.26

Other courts conduct judicial review of legislation on a concrete or a posteriori basis. This is the dominant tradition of judicial review in the Anglo-American world and means that courts conduct processes of judicial review at the instigation of specific parties and in a way that involves the consideration of legislation as applied to particular concrete cases. An increasing number of courts worldwide also exercise both forms of review—often through a combination of different procedures, or procedures that allow direct access by petitioners as well as access by way of a referral or appeal. In Colombia, for example, the Constitutional Court hears a mix of both constitutional appeals and individual “tutela” petitions brought directly by individuals.27 Similar forms of “amparo” procedure also exist in Argentina, Brazil, Mexico, and several other Latin American jurisdictions.28

Another of Kelsen’s influences is that courts vary in the degree to which they are “specialized” versus “general” courts of appeal. Many countries now have some form of specialized constitutional court, with jurisdiction only in respect of constitutional matters.29 Others, however, have a general appeals court with jurisdiction in constitutional matters. There may be important differences in the training and background of judges on the two kinds of court. Judges on specialized courts may have a variety of backgrounds, including legislative and academic backgrounds, whereas judges in ordinary courts will tend to be former practicing lawyers or lower court judges.

This may also mean there are differences among courts in their ability to identify and counter different kinds of democratic pathology or blockage; the composition and caseload of specialized courts, for example, may make them better equipped to identify currents in democratic opinion that point to legislative burdens of inertia, whereas the background and jurisdiction of judges on ordinary courts may mean they are better positioned to identify certain kinds of legislative blind spot. Whether this is true will depend on whether the caseload of a constitutional court gives it a broad view of issues and attitudes within civil society without overwhelming its capacity to give the necessary careful and detailed attention to specific cases.

Similarly, courts exercising abstract forms of review may have the capacity to counter legislative inertia but more limited capacity than courts with concrete powers of review to assess the law in action—as it applies to specific contexts and individuals—in ways that allow them effectively to identify and counter legislative blind spots.

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