Essay on the Origins and Growth of Judicial Review

Abstract

This essay traces the origins and growth of judicial review in all of the G-20 countries, which are constitutional democracies as well as in several other important judicial review systems. I find that judicial Review does not appear as Ran Hirschl predicts as the result of a fading elite trying to entrench itself in power as it loses its power to win elections. I also find that judicial review also does not appear as Tom Ginsburg predicts as the result of two co-equal political parties seeking "insurance and pre-commitment" for the protection of rights when they are out of power. I find instead that judicial review emerges: 1) when an umpire is needed for federalism or separation of powers purposes; or 2) as a result of what Alan Dershowitz has called the rights from wrongs hypothesis. Thus, judicial review emerges in Germany and South Africa as a result of the great historical wrongs of the Holocaust and of apartheid. Understanding what causes the origins and growth of judicial review is critically important for Comparative Constitutional Law, and this essay answers that question.

Keywords: Comparative Law, Constitutional Law, Judicial Review, Separation of Powers, Federalism, International Law

JEL Classification: K10, K30