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Judicial Review and Judicial Activism of the European Court of Justice and the United States Supreme Court

Marshania, Leila (2004)
Department of Law
Abstract
Judicial review, power exerted by supreme judicial bodies to examine constitutionality of the actions of the legislator and the executive and declare them void if they violate the constitution, is a powerful instrument in hands of judiciary. First introduced in the United States by the Supreme Court as a constitutional principle it has spread all over the world and has been widely exercised by such supranational court as the European Court of Justice. While discussing exercise of judicial review by the constitutional or supreme courts the term judicial activism is often applied. Judicial activism is known as the phenomenon when judges go beyond their appropriate limited powers and engage in making laws or in forging public policy, not... (More)
Judicial review, power exerted by supreme judicial bodies to examine constitutionality of the actions of the legislator and the executive and declare them void if they violate the constitution, is a powerful instrument in hands of judiciary. First introduced in the United States by the Supreme Court as a constitutional principle it has spread all over the world and has been widely exercised by such supranational court as the European Court of Justice. While discussing exercise of judicial review by the constitutional or supreme courts the term judicial activism is often applied. Judicial activism is known as the phenomenon when judges go beyond their appropriate limited powers and engage in making laws or in forging public policy, not merely in interpreting laws enacted by legislative bodies. Allegations of judicial activism accompany numerous decisions of the Supreme Court and the ECJ. Through the power to invalidate acts of legislator judges quite often participate and even dominate in political decision-making which has been heavily criticized as, traditionally, policy-making has always been duty of politicians. The thesis focuses on the historical and theoretical development of the judicial review in the world and the issue of the increased judicial power, or judicialization, through the exercise of the principle. It also analysis relation between democracy, as it is perceived in the modern world and judicial review. The main problem here is whether the principle can be seen as a pro-democratic institution even though it gives power to the non-democratically elected judges to control the democratic branch of the government. These thesis analyses the principle of judicial review in order to show its place in the constitutional systems of the United States and the European Union. Some rulings of major importance by the US Supreme Court and the ECJ that have caused criticism and allegations of judicial activism are considered and compared for this purpose. The examples intend to demonstrate the importance and necessity of applying judicial activism through judicial review for the establishment of the federal-type of structure in Europe, for the development of federalism in the United States and for promoting individual rights and liberties in both systems. Finally, the thesis attempts to look the future of judicial activism by the European Court of Justice with the enlargement of the Union and ten new judges. (Less)
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author
Marshania, Leila
supervisor
organization
year
type
H1 - Master's Degree (One Year)
subject
keywords
European Affairs
language
English
id
1554817
date added to LUP
2010-03-08 15:22:38
date last changed
2010-03-08 15:22:38
@misc{1554817,
  abstract     = {Judicial review, power exerted by supreme judicial bodies to examine constitutionality of the actions of the legislator and the executive and declare them void if they violate the constitution, is a powerful instrument in hands of judiciary. First introduced in the United States by the Supreme Court as a constitutional principle it has spread all over the world and has been widely exercised by such supranational court as the European Court of Justice. While discussing exercise of judicial review by the constitutional or supreme courts the term judicial activism is often applied. Judicial activism is known as the phenomenon when judges go beyond their appropriate limited powers and engage in making laws or in forging public policy, not merely in interpreting laws enacted by legislative bodies. Allegations of judicial activism accompany numerous decisions of the Supreme Court and the ECJ. Through the power to invalidate acts of legislator judges quite often participate and even dominate in political decision-making which has been heavily criticized as, traditionally, policy-making has always been duty of politicians. The thesis focuses on the historical and theoretical development of the judicial review in the world and the issue of the increased judicial power, or judicialization, through the exercise of the principle. It also analysis relation between democracy, as it is perceived in the modern world and judicial review. The main problem here is whether the principle can be seen as a pro-democratic institution even though it gives power to the non-democratically elected judges to control the democratic branch of the government. These thesis analyses the principle of judicial review in order to show its place in the constitutional systems of the United States and the European Union. Some rulings of major importance by the US Supreme Court and the ECJ that have caused criticism and allegations of judicial activism are considered and compared for this purpose. The examples intend to demonstrate the importance and necessity of applying judicial activism through judicial review for the establishment of the federal-type of structure in Europe, for the development of federalism in the United States and for promoting individual rights and liberties in both systems. Finally, the thesis attempts to look the future of judicial activism by the European Court of Justice with the enlargement of the Union and ten new judges.},
  author       = {Marshania, Leila},
  keyword      = {European Affairs},
  language     = {eng},
  note         = {Student Paper},
  title        = {Judicial Review and Judicial Activism of the European Court of Justice and the United States Supreme Court},
  year         = {2004},
}