Why Europe Rejected American Judicial Review - and Why it May Not Matter

Abstract

In 1803, when Marbury v. Madison was rendered, the French were busy completing the destruction of independent judicial authority. That process began in 1789, the year the U.S. Constitution entered into force. The French law of August 16-24, 1790, which remains in application today, prohibited judicial review of legislative and administrative acts, as did the country's first written constitution, completed in 1791. By 1804, a new legal system had emerged. It was constructed on the principle - a corollary of legislative sovereignty - that courts must not participate in the lawmaking function. The judge was instead imagined as a virtual "slave of the legislature" or, more precisely, a slave of the code system of law. The codes are statutes that, in their idealized form, purport to regulate society both permanently and comprehensively, thereby reducing judicial discretion to nil. Through mimesis and war, the code system and the prohibition of judicial review spread across Europe. Although the nineteenth century saw near continuous regime change, and old states disappeared or were absorbed into new ones, a relatively stable constitutional orthodoxy nonetheless prevailed. In this orthodoxy, constitutions could be revised at the discretion of the lawmaker; separation of powers doctrines subjugated judicial to legislative authority; and constraints on the lawmaker's authority, such as rights, either did not exist or could not be enforced by courts.