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Judicial Review Overview

Judicial Review Overview


Judicial review is the process by which a court or judiciary reviews the actions of administrative bodies, including government agencies, tribunals, and other decision-making bodies, to ensure compliance with the law and fair application of policy. This function is an essential aspect of the separation of powers and ensures that the government acts within the parameters of the law. The process of judicial review is particularly important in democratic societies, where the protection of individual rights and freedoms is paramount. 

The doctrine of judicial review has a rich and varied history, and this article provides a comprehensive review of its origins, evolution, and current applications. Additionally, we will explore the legal frameworks that have established and shaped the practice of judicial review, its implications for society, and why it remains a vital component of a democratic system of governance.

Origins of Judicial Review 

The concept of judicial review dates back centuries and has undergone various interpretations and revisions over time. It originated in England and was part of the common law system, which is a legal system based on precedent and customs that have evolved over time rather than codified statutes. Common law can be traced back to the twelfth century, during which the king’s courts replaced the feudal lords as the primary legal institution in the country. 

Over time, the system developed a hierarchy of courts that could hear and adjudicate on different types of cases. These courts could interpret laws and issue judgments, which set legal precedents that other courts could follow. This process of judicial interpretation was not always considered authoritative because, in the medieval legal system, the monarch was considered the supreme authority.

In the seventeenth century, the English legal philosopher John Locke articulated the concept of the separation of powers. Locke believed that power should be divided among three distinct branches of government; namely, the legislature, executive and judicial branches. This theory viewed the judiciary as a co-equal branch of government, responsible for interpreting and applying the law rather than merely enforcing it. 

The concept of judicial review gained significant impetus in the United States of America. America inherited the common law tradition from the English legal system, and its founding fathers sought to establish a new system of government that ensured individual liberty, freedom, and democracy. The Constitution of the United States established a government with three co-equal branches: the legislative, executive, and judicial. 

However, there was a perceived need to limit the power of the government and protect individual rights and freedoms. The framers of the US Constitution believed that a bill of rights was necessary to limit government powers. They also believed that the courts were responsible for interpreting constitutional provisions and protecting individual liberties. The Supreme Court of the United States was established in 1789, and its first case established the principle of judicial review, which became embedded in the American constitutional system.

Evolution of Judicial Review 

The doctrine of judicial review has evolved over time, and courts’ interpretation and application of the concept have varied. In the United States, successive Supreme Court judgments have molded and shaped the doctrine, expanding its scope of application, and defining its limits.

One of the most significant decisions regarding judicial review was handed down in the case of Marbury v. Madison in 1803. John Marshall, the chief justice of the Supreme Court, declared that the Constitution grants the judiciary the power to declare acts of Congress unconstitutional, thus establishing the principle of judicial review. This ruling established the power of the judiciary as an equal branch of government that could check and balance the power of the other two co-equal branches.

Over time, the scope of judicial review has broadened, both in common law jurisdictions and those based on the civil law tradition. In common law jurisdictions, the courts increasingly review administrative decisions, while in civil law countries, constitutional courts often have the power to examine the constitutionality of legislation. 

Additionally, some jurisdictions have established specialized courts or tribunals to review administrative decisions. In the United States, specialized courts, such as the Environmental Protection Agency’s Environmental Appeals Board, can hear cases regarding administrative decisions in areas such as environmental protection and clean air and water standards. 

One area where judicial review has undergone significant evolution is in the context of international law. The establishment of international tribunals and courts, such as the International Court of Justice and the International Criminal Court, has given rise to the concept of judicial review in international law. These courts have the power to review the actions of states and other international actors to ensure compliance with international law. This expansion of judicial review into the realm of international law highlights the continued evolution and versatility of the doctrine.

Legal Frameworks for Judicial Review 

While the concept of judicial review is widely accepted, legal frameworks that establish and regulate its application and scope vary. These frameworks may include legislation, constitutional provisions, or common law principles that define the scope of judicial review, the courts’ powers to exercise review, and the limits of this power.

In the United States, the Constitution has become the primary legal framework for judicial review, establishing the powers of the judiciary to review the actions of the other branches of government for compliance with constitutional provisions. Over time, the Supreme Court has interpreted the Constitution to expand the courts’ powers of review, affirming the supremacy of the Constitution and the power of the judiciary to interpret and apply it.

In other common law jurisdictions, such as the United Kingdom, the legal framework for judicial review is embodied in legislation such as the Human Rights Act 1998. This legislation established the role of the courts in reviewing administrative actions and ensuring compliance with the European Convention on Human Rights and Fundamental Freedoms. 

In civil law jurisdictions, the legal framework for judicial review often consists of codified laws that establish administrative proceedings and provide for judicial review of administrative decisions. These jurisdictions often have specialized courts or tribunals that hear cases regarding administrative decisions and reviews the decisions of lower administrative courts.

Implications of Judicial Review 

The implications of judicial review are far-reaching and extend beyond the legal framework within which it operates. Judicial review ensures that the exercise of governmental power remains circumscribed by the Constitution or the law, safeguarding individual liberties and ensuring that the government remains accountable to citizens. 

By checking the exercise of power, judicial review ensures that the government acts within its limits. It forces the government to consider issues of legality, fairness, and public interest, thus promoting transparency and accountability in government decision making. Judicial review also maintains the mechanisms of democracy, ensuring that the will of the majority does not subvert the individual rights of the minority.

Additionally, judicial review promotes the development of the common law. By interpreting and applying legal precedents, judges create a body of law that evolves over time, responding to changing societal needs and values. This process ensures that the law remains responsive to societal changes and reflects the principles of justice and fairness.

Limitations of Judicial Review 

Despite its benefits, judicial review is not a panacea for all legal and societal problems. Its application is often circumscribed by legal frameworks that may limit its scope or its effectiveness in addressing specific issues. Additionally, courts are limited by their capacity to operate effectively within legal systems that may be bogged down by procedural inefficiencies, limited budgets, or political interference.

Moreover, judicial review may be used as a tool for political gains, with the judiciary being perceived as either too activist or too deferential to the other branches of government. Critics of judicial review argue that it may impede governmental action or undermine the will of the majority.


Judicial review remains a vital component of democratic societies and is essential for protecting individual rights and freedoms, ensuring government accountability, and promoting the development of the law. While its application varies across different legal frameworks, judicial review’s core principles remain the same across common law and civil law jurisdictions. 

The judiciary must continue to play a critical role in promoting transparency and accountability in government decision making. It is essential that the judiciary remains independent, impartial and operates within the parameters of constitutional and legal frameworks that regulate its powers.

Judicial review has come a long way since its origin in medieval England and has evolved over time to adapt to the changing needs of society. The continued expansion of its scope into international law and other areas highlights the versatility and resilience of the doctrine. As society continues to evolve, the importance of judicial review will only increase, ensuring that the rule of law and individual liberties are protected for generations to come.

Judicial review acquires its roots from all the way back to that of the presidential election of 1800. It represents the Supreme Court’s authority to review cases and decide on whether or not such laws are Constitutional.

The advent of judicial review stems back to the time in which John Adams had submitted defeat at the hands of Thomas Jefferson. Despite this hit to the Federalist regime, however, Adams proceeded with a stream of actions that he believed would ensure some basis of Federalist power regardless of the change in the Presidency.

Due to a delay in time in relation to when exactly Jefferson took office, Adams was able to proceed without any immediate opposition. His appointment of justices became known as the “midnight appointments,” since they seemed to have happened overnight.

Though they had all been approved by the Senate, one additional step must be fulfilled for these appointments to have gone into effect legally. These “commissions” must have been distributed to those appointed in order for it to be achieved to its completion. Delivery never occurred, however, as President Jefferson finally took his place and ordered that the commissions not be sent prior to the return of James Madison, who balanced both appointments as Chief Justice of the Supreme Court as well as acting Secretary of State. With the absence of such appointments, Adams’ men were unable to take up the various offices set upon them as well as go forth with duties he had wished them to begin.

In addition, the Judiciary Act of 1801 was abolished and replaced by a subsequent Judiciary Act of 1802, which reverted terms to follow in the footsteps of the early Judiciary Act of 1789. As a result, Marbury, one of those individuals set to take up an appointment as a Justice of the Peace for the District of Columbia, decided to file a complaint with the
Supreme Court.

This case came to be known as Marbury v. Madison. The basis of the issue may be stemmed from the following specification. In order for a case to be heard by the Supreme Court, the following must occur: filing with the Supreme Court, filing with a lower Federal court and filing appeals upwards, and filing in a State court and also appealing up.

From these choices, then, Marbury assumed the quickest option. However, such an option required the existence of “original jurisdiction,” which the Supreme Court was not stated as having at that moment in time. Due to this Marbury cited the Judiciary Act of 1789, which stated that Congress had the ability to enable the Supreme Court to acquire “original jurisdiction”. The Supreme Court came to a final decision that worked to appease all involved as much as its powers could. It ruled that Marbury did possess the legal right to attain his commission but stipulated that it could not force Madison to convey it to him.

In addition, Chief Justice John Marshall stated that such a claim was unconstitutional since it granted the Supreme Court the power that is not set forth within Article 3 of the
United States Constitution. This action represented the first time that the Supreme Court had even possessed the authority to declare an Act unconstitutional, and thus, make an Act from Congress void, thus also representative of the very first judicial review.