Introduction
A judicial review is the procedural activity to verify the legality and validity of judgments, decisions, and rulings as well as to resolve disputes between courts. This paper is aimed at reflecting peculiarities of different models including diffuse, concentrated, and non-judicial review models that guarantee judicial correctness and uniform application of laws.
Models of Judicial Review
The principal feature of the judicial review is that it is a way of revision of acts that came into force. In the modern world practice, there are several models of the judicial review:
- diffuse model is carried by all the courts of general jurisdiction (the United States, Mexico, Japan, etc.);
- concentrated model is implemented by special Constitutional Courts (Austria, Germany, Italy, etc.);
- non-judicial review model (Constitutional Council of France or Kazakhstan).
It seems appropriate to consider each model separately.
Diffuse (American) Model
The diffuse model is implemented by all the courts of general jurisdiction without the creation of a specialized body of the judicial review. The execution of the judicial review is inherent to the whole judicial system and does not depend on the centralized mechanism of justice as all the cases, whatever their nature, should be decided by the same court and in the same conditions (Hall & Feldmeier, 2012). The diffuse model might consider any controversial issues and do not require a special attitude towards them.
Among central features of the American model of the judicial review one might note several aspects. Firstly, the question of the unconstitutionality of law or another act occurs when these acts have already been published and came into force. In other words, the diffuse model considers so-called pro praeterito consequences. Secondly, the Supreme Court is considering the constitutionality of an act not in self-production, but only in connection with the hearing of a court case providing a specific control and solving the fate of the law on the basis of the particular case. Third, if the act is declared unconstitutional, it loses its validity. In addition, the amparo system plays an important part in the diffuse model. It is a specific procedure that is a means of protecting basic constitutional rights of the individual, in many respects similar to the constitutional complaint. The main difference is that amparo protects an individual’s rights.
Concentrated (European) Model
A characteristic feature of the concentrated model is that the judicial review is ensured by the specialized body. The form and nature of it are also different. In particular, only this model is characterized by the form of preventive and compulsory review. Due to the mentioned approach, such review takes a holistic and comprehensive character and could be carried out consistently and effectively.
The European model comprises three essential components:
- ensuring the constitutionality of regulations and, thereby, preserving the constitutionally enshrined functional balance between different branches of government;
- clear regulation of disputes arising between different authorities concerning powers;
- creation of a complete and reliable system for the protection of constitutional rights (Corkin, 2015).
As a rule, in the European model, there are special rules for the judicial review and separate laws for its execution. The key difference between the American and European models is the organization of a system of judicial review. In the American system, it is exercised by all judicial authorities. All disputes, regardless of their nature, might be considered along with questions of constitutionality. There is a special form of proceedings while the European model requires a special centralized decision.
However, the disadvantage of the European model is the need for citizens, companies, or other interested parties to spend extra effort including organizational, financial, and others to refer to the court.
Non-judicial Review Model
This model of the judicial review is carried out by special non-judicial authorities’ jurisdiction. For example, in France and several other countries, the constitutionality of laws is guaranteed by the Constitutional Council. At the same time, the constitutionality of acts concerning the executive power in the case of exceeding powers is under the jurisdiction of State Council headed by a system of administrative justice. Methods of forming specialized bodies of the non-judicial review model fluctuate from country to country to some extent. Nevertheless, parliaments play a key role in its formation.
Conclusion
In conclusion, it should be emphasized that the judicial review is a special procedure that includes standards and other means to ensure strict adherence to constitutional legality. It is a way of the law enforcement verifying the compliance of laws and regulations of the country’s Constitution. The main purpose of the judicial review is to ensure the protection of human rights. There are three basic models of the judicial review. Courts of general jurisdiction provide the judicial review according to the diffuse model characteristic to the United States and a number of other countries. The second model is prevalent in European countries where constitutional justice is carried out by a special body. The non-judicial review model is guaranteed by non-judicial authorities’ jurisdiction as in France or Kazakhstan.
References
Corkin, N. C. (2015). Europeanization of judicial review. New York, NY: Routledge.
Hall, D. E., & Feldmeier, J. (2012). Constitutional law: Governmental powers and individual freedoms. Upper Saddle River, NJ: Pearson.