JUDICIAL REVIEW IN CIVIL

LAW AND COMMON LAW

By :Sourav Agrawal
How judicial review in civil law is different from common law ?
 INTRODUCTION

“Judicial Review refers to the power of the judiciary to interpret the constitution and to declare any such law or order of the legislature and executive void,
if it finds them in conflict the Constitution of India”.

“judicial review is the examination by the court , in cases actually before them, of legislative statutes and executive or administrative acts to determine
whether or not they are prohibited by a written constitution or are in excess of power granted by it”.

Judicial review is the power of the courts to determine the constitutionality of legislative acts. Judicial review is the power and duty of the courts to
invalidate the law made by the legislature . Judiciary is one of the three branch of the government . As parliament makes the laws, and executive execute
the law and judiciary interpret the law.

Judicial review is an essential part of checks and balances within the federal government giving the Supreme Court (judicial branch) equal power with the
other two branches of government. Judicial Review applies only to the questions of law. It cannot be exercised in respect of political issues.

Judicial review can be direct and indirect judicial review. Judicial review in its broadest context is the self-assured right of the court to pass upon the
constitutionality of legislative acts.
History of Judicial Review:

The concept of judicial review as evolved in America. The principle of judicial review has
its roots in the principle of separation of powers. The doctrine of judicial review is one of
the finest contribution which is made by the U.S,A to the political. The root of judicial
review is the result of a judicial decision and as a result of the convention its extension is
necessary. The principle of judicial review was established in the famous case
Marbury v Madison in the year 1803 by the American Supreme Court's Chief Justice
Marshall. Chief Justice Marshall has decided in this case that the judiciary has the right to
review the legislature's law made. It was also reported that if any such laws were made and
found to be in violation of the constitution, the court would declare those laws as the
constitution's ultra-virus.
 Civil law
Civil law, or civilian law, is a legal system originating in Europe, intellectualized within the framework of Roman law, the main feature of which is
that its core principles are codified into a referable system which serves as the primary source of law.

Historically, a civil law is the group of legal ideas and systems ultimately derived from the Corpus Juris Civilis .Civil law proceeds from
abstractions, formulates general principles, and distinguishes substantive rules from procedural rules. It holds case laws secondary and subordinate
to statutory law .

Civil law is organized and categorized and includes rules and principles. Only the legislative enactment which is made by parliament is compulsory
for all.There is generally a written constitution based on specific codes (e.g., civil code, codes covering corporate law, administrative law, tax law
and constitutional law) .Only legislative enactments are considered binding for all. There is little scope for judge-made law in civil, criminal and
commercial courts, although in practice judges tend to follow previous judicial decisions. A civil law system is generally more prescriptive than a
common law system. In a civil law system, a judge merely establishes the facts of a case and applies remedies found in the codified law. As a
result, lawmakers, scholars, and legal experts hold much more influence over how the legal system is administered than judges.

Roles of a Lawyer and Judge in civil law

In civil law countries, judges are often described as “investigators.” They generally take the lead in the proceedings by bringing charges,
establishing facts through witness examination and applying remedies found in legal codes. Lawyers still represent the interests of their
clients in civil proceedings, but have a less central role. In the civil law system, judges are seen as those who apply the law, with no
power to create (or destroy) legal principles
 Common Law
A common law system is the system of jurisprudence that is based on the doctrine of judicial precedent, the principle under which the lower courts must
follow the decisions of the higher courts, rather than on statutory laws.The countries that following the common law are those countries which were previous
British colonies as well as united states. There are not always laws written or codified in the common law system. In common law judicial decision are
obligatory on all the courts and the decision of the highest court can be overturns by the similar court only no other court has power do this. All the things are
permitted excepted which is expressly prohibited by the law.

In cases where the parties disagree on what the law is, a common law court looks to past precedential decisions of relevant courts, and synthesizes the
principles of those past cases as applicable to the current facts. Common law, as the body of law made by judges, stands in contrast to and on equal footing
with statutes which are adopted through the legislative process, and regulation which are promulgated by the executive branch.

Roles of a lawyer and judges in common law

common law country, lawyers make presentations to the judge (and sometimes the jury) and examine witnesses themselves. The proceedings are then
“refereed” by the judge, who has somewhat greater flexibility than in a civil law system to fashion an appropriate remedy at the conclusion of the case. In
these cases, lawyers stand before the court and attempt to persuade others on points of law and fact, and maintain a very active role in legal proceedings. In
the (British) common law system, on which American law is based, judges are seen as sources of law, capable of creating new legal principles, and also
capable of rejecting legal principles that are no longer valid
 Judicial review in civil law and common law

Judicial review requires "reviewing a lower legal standard in consistency with a higher standard." A higher
standard is often inserted into a constitution. Justice Marshall defines a system of rules in Marbury v. Madision,
the U.S. Constitution is the supreme law of the land to be read and followed by the Supreme Court. Justice
Marshall laid the foundation for one of the most comprehensive judicial review mechanisms in the modern world
in his decision in the case.

Nevertheless, judicial review in civil law countries was much slower to grow. This evolutionary difference is
largely due to the judicial doubt of the civil law system, particularly in France after the French Revolution. Thus,
the civil law tradition emerged as one in which comprehensive codes enacted by the legislature represent the
ultimate source And the law principle, the rule that a judge is expected to follow rather than interpret legally. The
question would be certified to the legislature (reféré législatif) rather than risk undemocratic judicial interpretation
if ever the judiciary were uncertain as to statutory interpretation. This legislative dominance makes it unlikely that
judicial review will be close to the common law review
 Judicial review in Japan
In 1946, for the first time in the history of the state, the new Japanese constitution established that "the supreme court is the
last resort with the power to determine the constitutionality of any time, rule, law or officially act.

The post-war constitution has greatly improved and enlarged the judiciary, unlike the poor and dependent judiciary in the old
regime. The Supreme Court and the lower courts have all the control of the judiciary; and the judiciary wants independence.
The Supreme Court has independent rule-making power over "rules of procedure and training, and matters relating to lawyers,
international court discipline, and the administration of judicial matters"
• common law systems is due to the great respect historically given to judges. The defining aspect of common
law structures is the role that judges play in shaping and changing the law; redefining common law offences
and civil standards has long been appropriate to judges. It is therefore unsurprising that society would readily
accept an independent judiciary capable of reviewing legislative actions and ensuring conformity with higher
legal principles. The fact that any rule can be "higher" than another means that there is a certain hierarchy of
rules in the system.”

• These legal hierarchies have long existed in common law systems, unlike in civil law systems, thus requiring
some form of scrutiny to ensure compliance with those principles. Civil and common law systems have
recently started to converge. The fallibility of legislatures and the dangers inherent in granting any branch of
supreme power was recognized by many civil law countries during World War II. Nevertheless, the general
trend in common law systems is towards a more thoroughly codified legal system. While codification still
allows judicial interpretation, it greatly limits the independence of the judiciary. Given the growing
significance and importance of judicial review in civil law countries and their role in the rule of law, I look at
the circumstances that will facilitate and promote the implementation of effective judicial review in civil law
systems.
Judicial review in India
The Supremacy of Law is the spirit of the Indian Constitution. In India, the Doctrine of Judicial Review is the
basic feature of the Constitution and is considered to be its hallmark. Though there is no express provision for
judicial review in the Indian Constitution but it is an integral part of. In India the concept of Judicial Review is
founded on the Rule of Law. The Government of India Act, 1858 and The Indian Council Act, 1861 imposed
some restrictions on the powers of Governor General in Council in evading laws but there was no provision of
judicial review. The court had only power to implicate. Emperor v. Burah,2 was the first case which interpreted
and originated the concept of Judicial Review in India in 1877. In this case court held that aggrieved party had
right to challenge the constitutionality of a legislative Act enacted by the Governor General Council in excess of
the power given to him by the Imperial Parliament. In this case the High court and Privy Council adopted the
view that Indian courts had power of Judicial Review with some limitation.
• Constitution of India, 1950 explicitly establishes the Doctrine of Judicial Review under various Articles i.e. 13, 32,
131-136, 143, 226, 227, 245, 246, 372, etc. Article 13 of the Constitution incorporates “Judicial Review of Post
constitution and Pre- constitutional laws”. This Article inherited most important doctrines of Judicial Review like
Doctrine of Severability, Doctrine of Eclipse. The power of Judicial Review has been conferred on the High Courts
and the Supreme Court of India under Article 226 and 32 respectively, which can declare a law unconstitutional if it
is inconsistent with any of the provisions of Part 3 of the Constitution.