Preface. With somme comments on the 2016-2017 judicial review «brexit» case before the constitutional judges of the United Kingdom

• 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: 17-35

17

JUDICIAL REVIEW IN COMPARATIVE LAW

PREFACE

WITH SOMME COMMENTS ON THE 2016-2017

JUDICIAL REVIEW «BREXIT» CASE BEFORE THE

CONSTITUTIONAL JUDGES OF THE UNITED

KINGDOM

I

This book on Judicial Review in Comparative Law, is the original version of the

text I wrote for the Course of Lectu res I g ave as Simon Boli var Professor of the

University of Cambridge in 1985-1986, in the LL.M. Course at the Faculty of Law,

University of Cambridge, UK. My appointment for the Simon Bolivar Chair in Latin

American Studies was proposed by Professors C. J. Hamson and A. Jolowicz, both

members of the International Academy of Comparative Law and Professors at the

Faculty of Law of the University of Cambridge. At their initiative, at that time, I

was also elected Fellow of Trinity College.

The text of the lectures was written during that year, basically working at the

University Library, in my Room in Angel Court at the College, and in the small

Library I ha d in the Goodhard Professor House, in Trumpington Road, where I had

the privilege of staying with my family during my tenure.

The Simón Bolívar Chair was established in 1968 with a grant from the Venezuelan

government, for the purpose of bringing each year to Cambridge «a distinguished

Latin American scholar or intellectual». Like all other Professor s at the University,

each holder of the Chair is assigned to the Faculty most appropria te to his academic

interests and is elected a Fellow of a College. The Professor is also usually closely

associated with the work of the Centre of La tin American Studies of the University.

I was the first L egal scholar to be appoin ted to held such important Academic

Chair, ha ving been preceded by a gro up of very distinguis h s cholars in other

scientific or academic fields: Science: Arnaldo Gabaldón, Marcel Roche, Tulio Arends;

History: Alvaro J ara, Pedro Grases, Sergio Vill alobos; Ec onomics: Celso F urtado;

Anthropology: Ignacio Bernal; Sociology: Pablo González Casanova, Fernando Henrique

Cardozo (President of Brazil 1995-2002); Political Science: Ramón Escovar Salom; and

Literature: Octavio Paz, (Nobel Priz e in Literature 1990), Mario Vargas Llosa (Nobel

Prize in Literature 2010). I even was immediately succeeded by Carlos Fuentes ,

another very disting uished writer and novelist.

Unlike the pr evious appointees, I was the first Simon Bolivar Professor to which

the University asked to give a full regula r course at a Faculty, in my case, in the LLM

Program of the Faculty of Law, a task that I gladly accepted. The result are the Lectures

18

ALLAN R. BREWER󰜔CARÍAS

that make up this book on Judicial Review, that is, the power of judges to control the

constitutionality of State acts, particularly of Legislation; a subject that not only was

very important at the time but continue to be one of the most important subjects of

conte mporary cons titution al l aw, as w ell as the most distinc tive feature of all

democratic constitutional systems, being very s uitable to be analyzed in comparative

law.

All ove r the world, in all democratic States, independently of having a le gal

system based on the common law or on the civil law principles, the courts 󰜔 special

constitutional courts, supreme courts or ordinary courts 󰜔 have the power to decide

and declare the unconstitutionality of legislation or of other State acts when a particu-

lar statute violates the text of the Constitution or of its constitutional principles.

This power of the courts is the consequence of the consolidation in contemporary

constitutionalism of three fundamental principles of law:first, the existence of a written

or unwritten constitution or of a fundamental law, conceived as a s uperior law with

clear supremacy over all other statutes;second, the «rigid» character of such constitution

or fundamental law, wh ich implies that the am endments or reforms that may be

introduced can only be put into practice by means of a particular and special constituent

or legislative process, preventing the ordinary legislator from doing so; and third, the

establishment in that same written or unwritten and rigid constitution or fundamen-

tal law, of the judicial means for guaranteeing its supremacy, over all other state acts,

including legislative acts.

Accordingly, in democratic systems subjected to such principles, the courts have

the power to refuse to enforce a statute when deemed to be contrary to the Constitution,

considering it null or void, through what is known as the diffuse system of judicial

review; and in many cases, they even have the power to annul the said unconstitutional

law, through what is known as the concentra ted system of judicial review.

The former, i s the system cr eated more than two hun dred year s ago by the

Supreme Court of the Un ited Sta tes, an d that so deeply characteri zes th e North

American Constitutional system. The latter system, has been adopted in constitutional

systems in which the j udicial power of judicial revie w has been g enerally assigne d

to the Supreme Court or t o one speci al Con stitutional Court, as is the case, for

example , of many countrie s in Europe and in Latin America. This concentr ated

system of judicial review, a lthough establish ed in many Latin American coun tries

since the 19 th century, was only ef fectively developed part icularly in the world after

World Wa r II followi ng the studie s of Hans Kelsen.

In Democratic States, in addition, the courts have the specific power to protect

and guaranty the constitutional and fundamental rights of citizens declared in the text

of the Constitutions or in International Trea ties on Human Rights, which in many

countries even have constitutional rank and value. The fact is that in all countries,

some sort of specific judicial review mea ns of protection have been developed in

order to immediately guarantee constitutional rights, being them or specific injunctions

(for example the «civil rights injunction») , or special actions like the well-known

«amparo» action or proceedin g established in almost all Latin American countries as

well as in Spain or Germany. These injunctions or protective actions are also pa rt of

the judicial review system of many countries.

The Cambridge Course and the Lectures that make up this book precisely