1. Main components of the 'European style' judicial review
Judicial review involves decisions made by the courts or other government organs concerning the constitutionality of various public acts such as legislation, whereby the court voids the acts where it deems them to be at variance with the constitution (Shapiro, 2002). Whereas by the end of the Second World War, several federal states such as Canada, Switzerland, United States and Australia practiced judicial review with some level of success, few other states were as successful.
However, adoption of new constitutions in many states has resulted to increased recognition of the pertinent role played by a judicial review mechanism especially in the context of protection of human rights. This is evident in Europe especially after the demise fascism and authoritarian and military rules in German and Italy.
Europe thus has recognized the role of judicial review. Among the components, judicial review in Europe includes the courts test of the component member states with the compatibility of the state laws with the national law. Another aspect involved the examination of acts of national interest for the constitutionality; this is referred to as judicial review. Additionally, reviews of the administrative decrees that are passed under authority of various laws were placed under the courts review. This aspect differed from review of the laws themselves.
Finally, the Europen review takes into consideration the distinction between material constitutionality of laws and formal constitutionality of laws. Formal aspect deals with whether the prescribed procedure for enactment of laws is fulfilled while the latter deals with the content.
2. The idea of popular sovereignty and the idea of judicial review.
Popular sovereignty is based on the idea of a democratic rule where powers to make laws are vested on an elected body of representatives (Shapiro & Alec, 2002). This forms the idea of a popular political self-government. A judicial review mechanism gives the courts or other governments body the role of constitutional adjudication that controls new laws and the procedures of the laws that are being made.
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The idea of involving courts in constitutional adjudication has raised pertinent issues concerning the erosion of the sovereignty and the freedom of a people or a country to decide for them what should form the laws that regulate and organize their political association by giving a clique of individuals who are not in elected positions power to adjudicate. Consequently, conflicts have arisen over the erosion of sovereignty. Nonetheless, whereas the idea of judicial review does not always resonate with the idea of popular sovereignty, in some instances, it is crucial in enhancing the peoples sovereignty by preventing misuse of the powers vested on the law making organs.
In most instances, the judges rather than diminish popular sovereignty, often enhances it (Stone, 2000). For instance, where a constitution requires that parliament garners over two thirds majority, and the parliament garners the requirements such as where a law to change voting age from 18 to 21 years was being adopted, with the proper ratification by states and legislature then a judge who understands constitutional adjudication would hold the decision that the decision though may be undemocratic is constitutional. This is despite the judges believes, philosophy or opinions.
Consequently, where all the procedural standards are followed, the judge would consider such an amendment to represent the popular will. Even in this circumstance, popular sovereignty still triumphs over constitutionalism.
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