Judicial Review: Its Influence Abroad
| Published date | 01 November 1976 |
| Date | 01 November 1976 |
| DOI | http://doi.org/10.1177/000271627642800106 |
| Subject Matter | Articles |
52
Judicial
Review:
Its
Influence
Abroad
By
DONALD
P.
KOMMERS
ABSTRACT:
The
doctrine
of
judicial
review,
having
been
nourished
in
a
legal
culture
and
socio-political
environment
favorable
to
its
growth,
is
America’s
most
distinctive
contri-
bution
to
constitutional
government.
Judicial
review
as
historically
practiced
in
the
United
States
was
duly
recorded
abroad,
with
varying
degrees
of
influence
and
acceptability.
During
the
nineteenth
and
early
twentieth
centuries,
the
influence
of
judicial
review
was
most
conspicuous
in
Latin
America,
where
it
was
adopted
as
an
articulate
principle
of
numerous
national
constitutions,
while
most
European
na-
tions
consciously
rejected
it
as
incompatible
with
the
prevail-
ing
theory
of
separation
of
powers.
Germany,
Austria,
and
Switzerland,
although
marginally
influenced
by
the
American
experience,
developed,
as
did
several
commonwealth
nations,
their
own
variants
of
judicial
review.
Since
World
War
II,
judicial
review
has
emerged
as
a
governing
principle,
partly
in
response
to
the
excesses
of
prewar
popular
democracies,
in
the
constitutions
of
many
countries,
including
those
of
emergent
nations
of
Asia
and
Africa.
But
in
nearly
all
of
these
new
nations,
including
Latin
American
nations,
judi-
cial
review
has
not
developed
into
an
effective
instrument
of
limited
government.
On
the
other
hand,
it
has
worked
well
in
Japan,
West
Germany,
and
Italy,
whose
postwar
constitu-
tions
were
strongly
influenced
by
the
United
States.
Recent
experience
shows
that
judicial
review
works
best
in
advanced,
middle-class
societies
firmly
committed
to
the
idea
of
limited
government.
ANNALS,
AAPSS,
428,
Nov.
1976
Donald
P.
Kommers
is
Professor
of
Government
and
International
Studies
and
Adjunct
Professor
of
Law
at
the
University
of
Notre
Dame.
He
is
also
Director
of
Notre
Dame’s
Center
for
Civil
Rights.
His
M.A.
and
Ph.D.
degrees
are
from
the
University
of
Wisconsin.
He
was
recently
an
Alexander
von
Humboldt
Fellow
in
the
Law
School
of
the
University
of
Cologne,
West
Germany.
His
work
on
German
politics
and
comparative
constitutional
law
has
been
published
both
in
the
United
States
and
the
Federal
Republic
of
Germany.
His
most
recent
book
is
Judicial
Politics
in
West
Germany:
A
Study
of the
Federal
Constitutional
Court.
I
wish
to
thank
Mr.
Michael
J.
Wahoske,
a
Kiley
Fellow
at
the
University
of
Notre
Dame
Law
School,
for
his
assistance
in
the
preparation
of
this
article.
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