Fig Leaves, Fairytales, and Constitutional Foundations: Debating Judicial Review in Britain
Columbia Journal of Transnational Law, Vol. 43, No. 3 (2005), pp. 865-904
This Article examines an important and vigorous debate going on in Britain about the origins and justifications, within that country's legal system, of judicial review. The Article traces the recent evolution in British legal thought about the theoretical justifications for judicial review. It begins with an examination of the traditional Diceyian approach to judicial review, based exclusively on the British doctrine of parliamentary sovereignty, and goes on to examine the current “common law” approach, which acknowledges a role for British judges engaged in judicial review that is independent of Diceyian notions of parliamentary intent. The Article then broadens in scope, discussing how the debate in Britain, while superficially unique to that nation, in fact raises foundational issues important to any democratic nation struggling to balance judicial protection of individual rights with democratic-self governance. The Article concludes by highlighting several ways our own struggle with judicial power can be enriched by a deeper understanding of the British debate.