Models of Judicial Review: A Comparative Analysis
Introduction
Judicial review — the power of courts to assess the conformity of legislation with a higher norm — is among the most consequential and contested features of modern constitutionalism. The twentieth century witnessed a global expansion of judicial review, but its institutional forms vary profoundly. This article examines six models — the American (diffuse), Kelsenian (centralised), French (dual), UK (weak-form), Russian (constrained centralised), Chinese (political), and EU (indirect) — and evaluates the theoretical controversies they engage.
The American Model: Diffuse and Concrete
The American model, originating in Marbury v Madison (1803), is characterised by diffuse review: every federal and state court may adjudicate constitutional questions arising in ordinary litigation. There is no specialised constitutional court; the Supreme Court sits atop the ordinary judicial hierarchy. Review is concrete — it arises only in cases or controversies (Art III standing doctrine), never through abstract challenges.
Chief Justice Marshall’s opinion in Marbury grounded judicial review in the written Constitution’s character as supreme law and the judiciary’s duty to “say what the law is.” Two centuries later, the US model has been widely — though not universally — admired and exported. The counter-majoritarian difficulty, most forcefully articulated by Alexander Bickel, captures the core tension: unelected judges invalidate the choices of democratically elected legislatures. American constitutional scholarship has wrestled with this difficulty through theories of originalism (Scalia), minimalism (Sunstein), and substantive due process (Dworkin).
The American model’s advantages include its decentralisation (every litigant can raise a constitutional claim) and its integration with ordinary litigation (constitutional law develops through concrete factual contexts). Disadvantages include the enormous power of a nine-member Supreme Court whose appointments are intensely politicised, and the potential for constitutional questions to arise unpredictably.
The Kelsenian Model: Centralised and Abstract
Hans Kelsen, the architect of Austria’s 1920 Constitutional Court, designed the centralised model in explicit response to the counter-majoritarian difficulty. A specialised constitutional court exercises a monopoly over constitutional adjudication; ordinary courts cannot invalidate legislation. Kelsen argued that a centralised court exercises a quasi-legislative negative function — removing unconstitutional norms from the legal order like a “negative legislator” — which is properly separated from ordinary adjudication.
The German Federal Constitutional Court (Bundesverfassungsgericht), established in 1951, is the paradigmatic Kelsenian institution. It exercises: abstract review (abstrakte Normenkontrolle, Art 93(1)(2) GG), in which the federal government, state government, or one-third of Bundestag members may challenge a statute within one year of enactment; concrete review (konkrete Normenkontrolle, Art 100(1) GG), where ordinary courts refer constitutional doubts; constitutional complaints (Verfassungsbeschwerde, Art 93(1)(4a) GG), open to any individual alleging a fundamental rights violation; and organ disputes and federal-state disputes.
The Kelsenian model separates constitutional adjudication from ordinary litigation, permitting abstract review before a statute’s application harms specific individuals. Its disadvantages include the political character of judicial appointments to a court with concentrated power, the potential for abstract review to be used for political obstruction, and the creation of a constitutional jurisdiction distinct from ordinary judicial experience.
The French Model: Dual Review
France resisted constitutional review throughout most of the Fifth Republic due to Jacobin hostility to a gouvernement des juges (government of judges). The Conseil constitutionnel, established in 1958, was originally a political body reviewing Parliament’s compliance with the legislative domain. The watershed decision Liberté d’association (1971), in which the Conseil elevated the 1789 Declaration to constitutional status, transformed it into a rights-protecting institution.
Until 2008, review was exclusively a priori — the Conseil examined statutes after parliamentary adoption but before presidential promulgation. Access was limited to the President, Prime Minister, parliamentary presidents, and (after 1974) sixty deputies or senators. This model had significant limitations: many unconstitutional laws escaped review entirely, and individuals could never challenge legislation violating their rights.
The 2008 constitutional reform introduced the question prioritaire de constitutionnalité (QPC), effective 2010, creating a dual review system. Under the QPC, a litigant in ordinary proceedings may argue that a statute violates constitutional rights. The lower court filters the question to the Conseil d’État or Cour de cassation, which then (if the conditions are met) refers the question to the Conseil constitutionnel. The Conseil must decide within three months. The QPC thus grafts a concrete, a posteriori, party-driven mechanism onto the traditional a priori system, creating one of the world’s most hybrid review architectures.
The UK Model: Weak-Form Review and Dialogue
The United Kingdom’s constitutional tradition of parliamentary sovereignty long excluded judicial review of primary legislation. Dicey’s formulation — Parliament can make or unmake any law whatsoever — denied courts any authority to question an Act’s validity. The Human Rights Act 1998 (HRA) introduced a carefully calibrated modification without abandoning sovereignty.
Section 3 of the HRA requires courts to read and give effect to primary legislation in a way compatible with Convention rights “so far as it is possible to do so.” Section 4 creates a declaration of incompatibility — a formal judicial statement that legislation violates Convention rights. Crucially, the declaration does not invalidate the statute; it invites Parliament to amend or repeal the offending provision, but Parliament retains the final word. This is weak-form review, sometimes called the Commonwealth model or parliamentary rights model.
Dialogue theory, developed by Canadian scholar Peter Hogg, conceptualises weak-form review as an inter-institutional conversation. Courts identify rights violations; legislatures respond. The dialogue respects democratic decision-making while providing rights-protective pressure. The HRA model has influenced constitutional design in New Zealand (Bill of Rights Act 1990), the Australian Capital Territory (Human Rights Act 2004), and Victoria (Charter of Human Rights and Responsibilities 2006).
Critics argue weak-form review provides insufficient rights protection, particularly against determined legislative majorities. The UK government’s 2022 Bill of Rights — proposing replacement of the HRA with a domestic statute weakening Strasbourg influence — illustrates the model’s vulnerability to political reversal.
The Russian Model: Constrained Centralised
Russia’s Constitutional Court, established in 1991 and re-established under the 1993 Constitution, follows the Kelsenian model in structure but has experienced significant political constraint. The Court may hear abstract challenges by state actors, concrete references from ordinary courts, and individual constitutional complaints (since 2010, when the Constitutional Court replaced the Higher Court of Arbitration).
The Court’s independence has fluctuated markedly. In the 1990s, the Court under Valery Zorkin exercised robust review, striking down President Yeltsin’s decrees. Following the 1993 constitutional crisis and the Court’s suspension, it re-emerged in a more politically constrained posture. The 2020 constitutional amendments expressly provide that Constitutional Court decisions can be overridden by constitutional amendment, and the Court’s jurisdiction to review the constitutionality of proposed amendments was curtailed after it declined to invalidate the 2020 package.
Russia’s model illustrates the fragility of judicial review in hybrid regimes and the capacity of an executive to transform nominally independent institutions into instruments of legitimation.
The Chinese Model: Political Review Without Judicial Power
China has no judicial review in the conventional sense. Under the constitutional design, the National People’s Congress is the highest organ of state power; no court may invalidate its legislation. The NPC and its Standing Committee exercise legislation supervision — reviewing normative documents for constitutionality and legality.
The Legitimacy Review Procedure (2023), enacted by the NPC Standing Committee, formalises a process for citizens and organisations to petition for review of normative documents. Petitions are processed through the NPC Constitution and Law Committee, which recommends corrective actions to the enacting body. The process operates entirely within the Party-state apparatus, insulated from judicial intervention.
China’s model represents a deliberate rejection of Western judicial review. The Communist Party’s leading role precludes independent judicial constraint on legislative choices. Comparative scholars increasingly study China not as a deviant case but as a distinct model — political constitutional review — that resolves the counter-majoritarian difficulty by empowering a counter-majoritarian institution that the Party ultimately controls.
The EU Model: Indirect Review Through Preliminary References
The European Union lacks a direct action for individuals to challenge national legislation’s compatibility with EU law. Instead, the Art 267 TFEU preliminary reference procedure enables any national court to refer questions of EU law interpretation or validity to the Court of Justice. When a national court considers that national legislation violates EU law, it must disapply the national provision (Simmenthal, 1978) — a duty arising from the supremacy doctrine.
This creates a decentralised indirect review: national courts are the primary enforcers of EU law, with the CJEU providing authoritative interpretation. The Art 267 mechanism has been the engine of European integration, generating foundational doctrines including direct effect (Van Gend en Loos, 1963) and state liability (Francovich, 1991).
The EU also provides direct actions: annulment actions under Art 263 TFEU (member states, institutions, and, under stringent standing rules, individuals challenging EU acts) and infringement proceedings under Art 258-260 TFEU (Commission against member states).
Strong-Form vs Weak-Form Debate
Mark Tushnet’s distinction between strong-form (American, Kelsenian — courts have the final word on constitutional meaning) and weak-form (UK, Commonwealth — legislatures can override judicial interpretations) has structured debates about constitutional design. Strong-form review risks the counter-majoritarian difficulty; weak-form review risks ineffective rights protection.
Ran Hirschl’s hegemonic preservation thesis suggests that political elites establish strong judicial review as a hedge against electoral loss — courts protect the elites’ preferred constitutional settlements when legislatures turn against them. Tom Ginsburg’s insurance theory similarly posits that political actors create judicial review when they anticipate losing power, as an insurance policy against future majoritarian incursions.
Conclusion
The global expansion of judicial review is among the most significant legal developments of the late twentieth and early twenty-first centuries. Yet the institutional forms are diverse: diffuse or centralised, a priori or a posteriori, strong or weak, judicial or political. Each model reflects distinct constitutional histories and political settlements. Design choices about judicial review — who may bring claims, when review occurs, what remedies are available — fundamentally shape constitutional politics. Comparative analysis reveals no optimal model; rather, each approach must be evaluated against its specific constitutional context and democratic legitimacy criteria.