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NCJ Number: 73197 Find in a Library
Title: Mighty Problem of Judicial Review and the Contribution of Comparative Analysis
Journal: Southern California Law Review  Volume:53  Issue:2  Dated:(January 1980)  Pages:409-445
Author(s): M Cappelletti
Date Published: 1980
Page Count: 37
Sponsoring Agency: European University Institute

Ford Foundation
New York, NY 10017
Format: Article
Language: English
Country: United States of America
Annotation: This article examines judicial review of legislation in context of its historical and contemporary roles in modern Europe. European and American judicial review are compared, and transnationalism and constitutionalism are discussed.
Abstract: Europeans, once firmly opposed to control of legislation by judges, are now moving away from that tradition, while Americans are pausing to assess what to many appears to be an excess of massive policymaking by the courts. The three French courts, the Conseil d'Etat, the Court de Caddation, and the Conseil Constitutionnel, have decided, that French judges cannot give constitutional application to French legislation or with European Economic Community law a transnational, higher, 'moral' law. The involvement of the Italian, Austrian, and German courts in the arena of constitutionality represents the serious acknowledgment that tremendously important issues of humanity -- abortion, equal treatment of men and women, divorce, poverty, and the new social rights which characterize the modern welfare state -- can no longer be excluded from the reach of constitutions. No doctrine of direct applicability and supremacy has been developed by the European Convention of Human Rights' transnational adjudicators, the Court of Justice. The effects of the European Convention range from a maximum in such countries as Austria and Holland, where treaty law is recognized to have the same force as, or is even superior to, national constitutional law, to a minimum in such countries as the United Kingdom and the Scandinavian nations, where the Convention is not recognized to have direct effect, and therefore cannot be invoked as binding law in the national courts. Unlike documents such as the United Nations Declaration of Human Rights of 1948, the European Convention is accompanied by important machinery for its enforcement, including the Commission of European Communities and the Court of Human Rights. However, the problems for the Court of Justice's attempt to settle the conflict between constitutionalism and transnationalism involve its ability to meet requirements of time, firmness, imagination, and command of enough respect to develop a coherent body of decisions which can eventually be looked upon as the law of Europe in the area of human rights. Other problems include Europe's vast cultural diversity and the growing pressures toward integration in Europe. This emerging pluralism and the competition of lawmaking sources demand the comparison and control of judicial review. Over 130 footnotes are provided.
Index Term(s): Europe; European Commission for Human Rights; International law; International organizations; Judicial review; Jurisdiction; United Nations (UN)
Note: Prepared for the University of Southern California Conference on Comparative Constitutional Law and as part of the research project, 'European Legal Integration and the American Federal Experience.'
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