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THE CORPORATE ORIGINS OF JUDICIAL REVIEW
Copyright (c) 2006 Yale Law Journal Company, Inc.; Mary Sarah Bilder
THE CORPORATE ORIGINS OF JUDICIAL REVIEW
Copyright (c) 2006 Yale Law Journal Company, Inc.; Mary Sarah Bilder
Judicial review is a default principle in most of the constitutional legal systems. The extent and nature of it but is equally debated as its origin. It is located in premises ranging from natural law to the development of constitutional democracies with separation of powers. Mary Sarah Bilder, in her article in Yale Law Journal (2006) brings in a refreshing argument about the origin of judicial review on the repugnancy principle used in England, especially in dealing with the bylaws and ordinances of the corporations; both commercial and municipal, which later permeated into the colonial spaces.
It could be genuine to doubt as to what is there in the pedigree that need to be evaluated since the principles of judicial review is an established fact with an arguably sound theoretical basis and pragmatic sanctity. The answer is in its potential to contribute to the ongoing debate of the extent and process of judicial review; past being a guide to the future. The development of the practice of judicial review through corporate, colonial and constitutional repugnancy could be indicative of the extent and scope of current day exercise of review jurisdiction.
The author’s claim that longer the colonial rule, greater the impact on development of principles of judicial review is a pointer to Indian academia who ostensibly is in the eternal search of the best practices of judicial review that can contain different and mostly divergent claims and interests in the precincts of judicial review.
The repugnancy idea that developed in early England provided the standard to invalidate a law. Corporations with a capacity to issue ordinances and commercial corporations with the power to issue bylaws were put under the scanner of repugnancy to the laws of England. Author challenges the given to understand stand on the origins of judicial review (in US). First on the structuralist version of written constitution, federal pattern of state, popular sovereignty, separation of powers and an independent national judiciary. Then on the fundamentalist explanation, of a higher natural law that truss ordinary laws.
Residual issues, after reading the article, that may be pondered on the aspect of judicial review are the following:-
The founding of review jurisdiction with the judiciary, its justification past present and the soundness.
The standard and the norms, the violation of which will attract invalidation of legislation/action
or to put it generally
How judicial review should be practiced?
It could be genuine to doubt as to what is there in the pedigree that need to be evaluated since the principles of judicial review is an established fact with an arguably sound theoretical basis and pragmatic sanctity. The answer is in its potential to contribute to the ongoing debate of the extent and process of judicial review; past being a guide to the future. The development of the practice of judicial review through corporate, colonial and constitutional repugnancy could be indicative of the extent and scope of current day exercise of review jurisdiction.
The author’s claim that longer the colonial rule, greater the impact on development of principles of judicial review is a pointer to Indian academia who ostensibly is in the eternal search of the best practices of judicial review that can contain different and mostly divergent claims and interests in the precincts of judicial review.
The repugnancy idea that developed in early England provided the standard to invalidate a law. Corporations with a capacity to issue ordinances and commercial corporations with the power to issue bylaws were put under the scanner of repugnancy to the laws of England. Author challenges the given to understand stand on the origins of judicial review (in US). First on the structuralist version of written constitution, federal pattern of state, popular sovereignty, separation of powers and an independent national judiciary. Then on the fundamentalist explanation, of a higher natural law that truss ordinary laws.
Residual issues, after reading the article, that may be pondered on the aspect of judicial review are the following:-
The founding of review jurisdiction with the judiciary, its justification past present and the soundness.
The standard and the norms, the violation of which will attract invalidation of legislation/action
or to put it generally
How judicial review should be practiced?
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