Judicial review

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Judicial review is the doctrine under which legislative and executive actions are subject to review, and possible invalidation, by the judiciary. Specific courts with judicial review power must annul the acts of the state when it finds them incompatible with a higher authority, such as the terms of a written constitution. Judicial review is an example of the functioning of separation of powers in a modern governmental system (where the judiciary is one of three branches of government). This principle is interpreted differently in different jurisdictions, which also have differing views on the different hierarchy of governmental norms. As a result, the procedure and scope of judicial review differs from country to country and state to state.

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Judicial review is one of the main characteristics of government in the United States and similar democratic countries. Judicial review can be understood in the context of two distinct but parallel legal systems (civil law and common law), and also by two distinct theories on democracy and how a government should be set up (the ideas of legislative supremacy and a separation of powers). First, two distinct legal systems, civil Law and common law have different views about judicial review. Though civil law has its root on Corpus Juris Civilis, other historical events affected its development over the last fifteen hundred years. For example, the French Revolution had a significant effect on how people from different countries felt about civil law traditions. In 1804, the Napoleonic code was created. Legislative supremacy (or parliamentary sovereignty) was one of the key ideas underlying the Napoleonic code of 1804. The idea of legislative supremacy is that the legislative body should be superior (and consequently more powerful) than other branches of government. The imbalance in power is justified by the legislative branch because the people elect their own state or regional legislatures. In addition, the judicial body is prohibited from creating or challenging laws created by the legislative branch. The lack of judicial review denies the judicial branch a check on the power of the legislative branch.

Secondly, the idea of separation of powers is another theory about how a democratic society's government should be organized. In contrast to legislative supremacy, the idea of the separation of powers was first introduced by French philosopher, Charles de Secondat, Baron de Montesquieu, and was later institutionalized in the United States by the Supreme Court ruling in Marbury v. Madison. The separation of powers is based on the idea that no branch of government should be more powerful than any other, and that each separate branch of government should have certain checks on the powers of the other branches of government; thus creating a balance of power among all the branches of government. Key to this is the idea of checks and balances. In the United States, judicial review is considered a key check on the powers of the other two branches of government by the Judiciary, (although the power itself is only implicitly granted). Thus overall, differences in organizing "democratic" societies led to different views regarding judicial review; with societies based on common law and those stressing a separation of powers being the most likely to utilize judicial review. Nevertheless, many countries where legal systems are based on the idea of legislative supremacy have since learned the possible dangers and limitations of putting so much power exclusively in the legislative branch of government. Many countries with civil law systems have since adopted some sort of judicial review in order to stem the [[tyranny of the influential].

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