Weak-form judicial review

Abstract

The kind of constitutional justice which has been globally dominant since the end of the Second World War is usually termed ‘strong’ constitutionalism. It gives judges (or a specialized tribunal) the power to strike down legislation that they consider incompatible with their interpretation of those rights and, simultaneously, allows the legislature to override those judicial determinations only by gaining the qualified majorities included in a formal amending process. This entry expounds and discusses some ‘weak’ forms of judicial review, whose common distinctive character is aiming to ensure the supremacy of the basic rights over the rest of the legal system (even with their formal “entrenchment”), without assuming the judicial supremacy in their interpretation. The discussion will revolve around the precise sense of the “weakening” of the courts in a rights-based constitutional review, and which institutional design should be considered its most desirable form.