Special Workshop Abstract

Joakim Nergelius, Professor of Public Law, University of Helsinki

The traditional dilemma of Judicial Review is often referred to in terms of ‘the counter-majoritarian difficulty’ (to borrow a phrase from Alexander Bickel) or similar words. What those different expressions have in common is a fear or worry that the existence of judicial review, i.e. a possibility for courts or other, not popularly elected judicial bodies to strike down or maybe even annul legislation or other decisions enacted by political, democratically elected institutions. A huge part of the modern doctrine in constitutional law and constitutional theory takes as its point of departure the attempt to bridge this assumed gap and try to resolve this difficulty, which is somehow inherent in the concept of judicial review.

Historically speaking, the roots of this doctrine may perhaps be traced back to an influential article of James Bradley Thayer in Harvard Law Review 1893 (p. 129-156). At the same time and not least this year, when we celebrate the bicentennial of the extremely important Marbury v. Madison judgment, we must consider some of the more positive images of the concept of judicial review that the constitutional doctrine has provided us with. For instance, Elster has likened the necessity of judicial review with the tale of Ulysses, tied to the mast in order not to give in to the song from the sirens; in the same way, his argument goes, the modern state must consider certain restrictions and act within certain limits in order not to reach too far and act in a potentially dangerous way. Dworkin's arguments are similar. And we all know that Kelsen was extremely favourable to judicial review and even saw it as a logical consequence of his Stufenbau theory, if it is to be applied in a consistent and coherent manner.

The question for the future, which seems very apt to ask at the moment, when we may look back on 200 years of judicial review in its modern form, is if globalisation and the gradual acceptance of what may be called multi-level governance as a reality will also affect the perception of judicial review. If we have multi-level governance, then we must logically also have multi-level judicial review; at least it is hard to see why not. To a certain extent that is already the case, if we consider e.g. the activities of the supranational European Court of Justice in relation to the influential Constitutional Courts in some of the Member States. For a more global institution at work, we may look at the WTO legal panel in Geneva.

The supra-national bodies mentioned and others may be composed by representatives of democratically elected bodies, but they may not be described as democratic themselves. In fact, it is a well known criticism against the European Union, for instance, that it has a so-called democratic deficit. Nevertheless, the judgments of the ECJ are widely accepted and obeyed. Are the huge powers of ECJ perhaps more acceptable than those of other constitutional courts because the EU itself may be said to be less democratic than its Member states? And how will globalisation and the gradual withering away of the traditional nation-states affect our view of judicial review? Any influential future theory in the field needs to deal with those issues.