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Judicial Review of Legislation

Part of the Ius Gentium: Comparative Perspectives on Law and Justice Book Series (volume 5)

DOI: 10.1007/978-90-481-9002-7

ISBN: 978-90-481-9001-0

Publisher: Springer Netherlands - Springer Journals

May 21, 2010

LitStream

Chapter 1Setting the Scene

Van Der Schyff, Gerhard

Pages: 1 –10

[Although fast becoming the norm in constitutional democracies, the review of legislation is not without difficulty, as it hides two interrelated questions if not problems. Questions that keep stimulating debate and beg thought to ensure that the aim of controlling state power is continually met....
LitStream

Chapter 2Three Systems of Judicial Review

Van Der Schyff, Gerhard

Pages: 11 –46

[Judicial review as an instrument in pursuit of constitutionalism must be understood in relation to its particular constitutional system. One can only hope to understand the feature of review and its contours by grasping the context against which it came to develop and function. This chapter...
LitStream

Chapter 3Judicial Review and Democracy

Van Der Schyff, Gerhard

Pages: 47 –76

[The fact that the United Kingdom, the Netherlands and South Africa have begun to interpret and apply the separation of powers in a way that allows the judiciary to check the exercise of legislative power, tells us very little about the justification of this development. A legal construction such...
LitStream

Chapter 4Fora of Review

Van Der Schyff, Gerhard

Pages: 77 –105

[In cultivating a proper understanding of judicial review, attention is not only to be paid to the structure and reasoning of a judgment, but also to the court handing down the judgment and its place in the judicial system. The principle distinction that is usually made in characterising courts...
LitStream

Chapter 5Modalities of Review

Van Der Schyff, Gerhard

Pages: 107 –133

[In reviewing legislative norms, two major modalities can be distinguished. The first relates to the stage when review first becomes possible during the legislative process, while the second relates to whether norms may be reviewed in an abstract or concrete setting. These modalities can...
LitStream

Chapter 6Content of Review

Van Der Schyff, Gerhard

Pages: 135 –179

[The third element of judicial review discussed – in addition to its judicial fora and modalities, which were addressed in previous chapters – is that of its content. What is it that is actually scrutinised when a court tests the quality of legislation? Taken at its broadest, the content of...
LitStream

Chapter 7Consequences of Review

Van Der Schyff, Gerhard

Pages: 181 –204

[The consequences of identifying an intrusion upon higher law can be placed along a spectrum of possible outcomes of which setting aside is but one of the available options. The one end of this spectrum can be classified as “strong” review, the other as “weak” review. Strong-form review amounts...
LitStream

Chapter 8Constitutionalism Personified

Van Der Schyff, Gerhard

Pages: 205 –212

[Chapter 8 concludes by evaluating the results arrived at in the preceding chapters. Particular attention is paid to the extent to which “constitutional moments” influence the scope of judicial review in the United Kingdom, the Netherlands and South Africa before the central normative conclusion...

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