Introduction

• Author: Allan R. Brewer-Carías
• Profession: Emeritus Professor of Law, Central University of Venezuela Fellow, Trinity College, and Simón Bolívar Professor, University of Cambridge, UK (1985-1986)
• Pages: 37-40

37

INTRODUCCIÓN

INTRO DUCTI ON

Judicial Review, in its original North American sense, is the power of courts

to decide upon the constitutionality of leg islative acts, in other words, the judicial

control of the constitutionality of legislation .

It has been said that judici al r eview is the most distinctive featur e o f th e

North American constitutional system1and we must add that, in fact, it is the most

distinctive feature of almost all the constitutional systems in the world today. All

over the worl d, with or without simi larities to the Nor th American syste m of

judicial review, the courts 󰜔special constitutional courts or ordinary courts󰜔 have

the power to declare a law unconstitutional. According ly, they have the power to

refuse to enforce it, because it is considered null or void, and in some cases, they

have the power to declare the annulment of the said unconstitutional law.

As we all know, the system of the United Kingdom is quite different, and we

could even say that the main feature that also distinguishes the British constitutional

system is precisely the lack of judicial review of legislation. Perhaps that is why

Professor D.G.T. Williams of this Faculty said:

«Most British judges and the vast majority of British lawyers must have had

little or no contact with the problems and workings of judicial review».2

This substantial difference between the constitutional systems of the United

Kingdom and, in general, the other cons titutional systems in the world derives

from a few but very important principles, unique to the British constitution, and

influencing all of them. It is the principle of the sovereignty of Parliament, called

by Dicey the «secret source of strength of the British constitution» or «element of

power w hich has been the true source of its life and growth».3

This principle, with all its importance in constitutional law in Great Britain,

is, at the same t ime, th e most power ful ob stacl e to ju dicia l revi ew of t he

constitutionality of legislation. It implies that even if it is true that the courts in this

country are the ultimate guarantors the rule of law , they are bound to apply an Act

of Parliament whatever view the judges take of its morality or justice, or of its

effects on important individual liberties or human right.4And this is because of the

1E.S. CORWIN, «Judicial Review», Encyclopaedia of the Social Sciences, Vol. VII󰜔VIII, p. 457.

2D.G.T. WILLIAMS, «The Constitution of the United Kingdom», Cambridge Law Journal, 31, (1) 1972󰜔B,

p. 27 7.

3A.V. DICEY,England󰜚s Case Against Home Rule (3rd. ed. 1887), p. 168 quoted by D. G.T. WILLIAMS,loc.

cit., p. 277.

4T.R.S. ALLAN, «Legislative Supremacy and the Rule of Law: Democracy and Constitutionalism»,

Cambridge Law Journal, 44, 1, 1985, p. 116.