A new typology of judicial review of legislation

Abstract

The distinction between strong and weak judicial review occupies a privileged place in comparative constitutional law. This article argues that it is necessary to generate a new typology that includes two other increasingly infl uential models. The two 'new' models can be identifi ed as 'strong basic structure review' and 'weak basic structure review'. The former, present in some common law countries such as India and Belize, not only provides judges with the ability to strike down legislation that is inconsistent with a particular constitutional provision, but also constitutional amendments incompatible with the principles on which the constitution rests. The latter model, weak basic structure review, currently present in some Latin American countries, also provides judges with the power to strike down ordinary and constitution-amending legislation, but gives 'the people', acting through a constituent assembly, the fi nal word on the validity of any form of positive law. Finally, the article considers the possibility of the development of a fi fth model in which even the constituent people would be bound by certain principles to be identifi ed and enforced by judges.

Hard times: Progress narratives, historical contingency and the fate of global constitutionalism

“…Drawing on a wide array of comparative constitutional practices, he offers a new typology that includes additional models of judicial review. 44 And Kai Möller's paper set out a theory on international human rights that draws on recent philosophical writings on national constitutional rights. 45 Breaking from much of the literature, Möller argues that international human rights are not more minimalist than national constitutional rights, and that the moral structures of both bodies of rights are identical.…”