Do courts declare acts of the legislature unconstitutional?

Question

Do courts declare acts of the legislature (or Parliament, etc.) unconstitutional?

Answer 1

Judicial Review Of Legislation

Judicial Review In The United States

U.S. courts have done this since at least the U.S. Supreme Court case of Marbury v. Madison in 1803, described in detail in this Law.SE post. This was 14 years after the current U.S. Constitution was adopted. It was probably the first country in the world to have judicial review of statutes for constitutionality.

This authority is not limited to the U.S. Supreme Court in the U.S. either. Any U.S. court, state or federal, has the authority to declare a statute unconstitutional if the need to do so arises in the cases before it.

Judicial Review In Other Common Law Countries With Entrenched Constitutions

Most other common law countries with "entrenched" constitutions that have a higher legal status than ordinary legislation, like Australia, Canada, and India, also have basically the same process for determining is legislation is constitutional or not.

Judicial Review In Civil Law Countries

In contrast, in most civil law countries with "entrenched" constitutions (e.g. in most countries in Continental Europe), the task of determining if statutes are unconstitutional is reserved for a special constitutional court which is the sole forum for deciding constitutional questions and does nothing but decide constitutional questions. Germany's constitutional court is a typical example of this kind of institution.

Denmark's supreme court has judicial review authority, but only on a widely deferential basis, upholding legislation when the legislature has expressed a rational interpretation of the constitution, even if it is not the one that the court would give it on a blank slate.

I have seen dispute in different sources over whether courts in Finland do, or do not, have the authority to review the constitutionality of legislation. On balance, the view that Finland's courts have the power of judicial review seems to be the more correct assessment. Part of the issue is that in Finland, post-legislative enactment court review of legislation for constitutionality is less often needed there because legislation there is reviewed for constitutionality by the quasi-judicial Constitutional Law Committee of Finland's Parliament, in advance of legislation becoming effective, as part of the legislative process, rather than primarily being reviewed for constitutionality in post-enactment litigation. This kind of pre-review of legislative constitutionality as part of the legislative process is also present in the French Fifth Republic and in the State of Massachusetts in the United States. As explained here:

In Finland, the constitutionality of laws is examined in advance. This mainly takes place in Parliament, and especially in its Constitutional Law Committee. The goal of this parliamentary control is to prevent in advance that laws which are in conflict with the Constitution are enacted in the ordinary legislative procedure.

No constitutional court exists in Finland, but the courts and other authorities are under an obligation to interpret legislation in such a way as to adhere to the Constitution and to respect human rights. According to the Constitution, the courts should give preference to the Constitution when they decide a case if the application of an act would be in manifest conflict with the Constitution.

Countries Without Entrenched Constitutions Or Human Rights Protections

Some countries, like the United Kingdom, have historically not had judicial review of statutes for constitutionality because they do not have an "entrenched" constitution and instead have ordinary statutes that do the work of constitutions in other countries. When this is the case, one says that there is "parliamentary supremacy" in that country.

In these countries, however, it has been common for courts in the modern era to have the power to invalidate ordinary domestic statutes that are contrary to treaties that continue to be in force. In countries without entrenched constitutions, in countries where the constitution is easily amended, and in countries that have chosen not to protect human rights as part of their constitution, but treaties that remain validly in force can invalidate conflicting domestic statutes, human rights are often protected through international treaties rather than through a constitution.

There is also a historical practice in countries that do not have human rights protections in entrenched constitutions of courts interpreting laws such as laws facially appear to abrogate common law rules (especially in England and Wales), and by interpreting the scope of the legislative authority of different legislative bodies in a federal system with an entrenched constitution that does not itself protect individual rights to a great extent (especially in Australia) in a manner that is supportive of human rights and general decency.

Legislators in these countries are also part of a political culture this is less inclined to push the envelope of human rights protections when enacting laws, since these legislators are aware that if they overreach for political gain, that their excesses will not be corrected by the courts, which can provide a "safety net" against political excesses by legislators in countries that do have judicial review for constitutionality.

Notably, in the same vein, in eight of the fourteen years under the current United States Constitution adopted in 1789, and before Marbury v Madison was decided by the U.S. Supreme Court in 1803, President George Washington felt such an obligation when exercising his veto power to screen legislation not just for its political desirability, but for its conformity to the U.S. Constitution.

New Zealand, the Netherlands, Luxembourg, Norway, Sweden, and Switzerland all lack judicial review of legislation for constitutionality, even though some of these countries, such as the Netherlands and Switzerland, do have entrenched constitutions.

In one party states, dictatorships, coup regimes, and absolute monarchies, there is no judicial review in practice, whether or not the formally applicable legal governing instruments allow it, because there is not an independent judiciary, and because no one with power provides strong support for individual rights or the rule of law.

Judicial Review Of Non-Legislative Government Activity

New Zealand does have judicial review of the conduct of government officials and regulations enacted pursuant to statutes, as did the United Kingdom before it, even though they cannot invalidate legislation enacted by Parliament on constitutional grounds.

These traditions of judicial authority over public officials in matters of public law (as opposed to private law disputes between non-governmental parties), and in particular, writ practice (which involved requests for court orders usually directed at government officials), gave rise to the norms of judicial independence and judicial supremacy over non-legislative executive branch officials, that eventually blossomed into judicial review of legislation, first in the United States, and then based upon that model, elsewhere.

The Privy Council System

In New Zealand, until 2004, like many other British colonies historically, the decisions of its highest court were reviewable by the Judicial Committee of the Privy Council of the House of Lords in England, so no domestic court had the final say on questions of domestic law in its colonial subjects even when those subjects have almost complete rights of self-governance. Privy council review of New Zealand court decisions was replaced with a domestic New Zealand Supreme Court in 2004 after a quarter century of legislative deliberations on the matter. Per the link in this paragraph:

From 1851 until 2002, the Privy Council made 268 decisions relating to New Zealand. In the ten years from 1992–2002, only 21 decisions had been allowed with respect to New Zealand.

As of 2024, the Privy Council's scope and authority is greatly reduced:

Canada abolished Privy Council appeals in 1949, India and South Africa in 1950, and New Zealand in 2003. Currently, eleven Commonwealth countries outside of the United Kingdom retain Privy Council appeals, in addition to various British and New Zealand territories. The Judicial Committee also retains jurisdiction over a small number of domestic matters in the United Kingdom, reduced by the creation of the Supreme Court of the United Kingdom in 2009.

Supporters of the Privy Council system noted that it provided highly competent judges who were appointed by people who were not part of the domestic political system, to serve as a court of last resort without the authority to judicially review legislation. Thus, it increased judicial independence and competence and served as something of a deterrent to corruption in the judiciary. But this came at the price of a loss of national autonomy and subjugation to a far away country in which the dependency subject to privy council legal rulings had no political voice.

While the American colonies ceased to be subject to Privy Council judicial review when they declared independence in 1776, this institution was arguably the primary model for the U.S. Supreme Court in the U.S. Constitution, and the U.S. Supreme Court's processes and procedure bear great similarities to historical Privy Council proceedings and serve a similar purpose vis-a-vis state judicial systems.

Entrenched, Court Enforced, Islamic Law Based Judicial Review

In many countries that are predominantly Muslim, secular courts, religious courts, or both, have the authority to invalidate statutes that conflict with Islamic religious law in much the same way that unconstitutional laws are invalidated in other countries.

The model of having courts review secular legislation for compliance with Islamic law, which is now widespread, although not universal, in predominantly Muslim countries, originated with the establishment of a theocratic regime in the Islamic Republic of Iran in 1979.

Changes In Judicial Review Models Over Time

It is also worth noting that countries do not necessarily stay in the same category forever.

Canada

Canada converted from a regime of parliamentary supremacy to one which entrenched the individual rights protections of its Charter of Rights and Freedoms and the related authority given to Courts by Section 52 of its contemporaneously adopted Constitution Act in 1982.

Historically Christian Europe And Latin America

Most European countries that fell to Nazi Germany in World War II started to protect individual rights and freedoms through an entrenched constitution when they were reconstituted after the war. Some of these countries had made more tepid reforms after World War I, and, before that, in connection with transitions from absolute monarchies and hereditary aristocracies to constitutional monarchies and republics.

The United Kingdom started to limit its regime of parliamentary supremacy through multilateral treaty agreements such as its membership in the Council of Europe, which protected human rights, and the European Economic Community and its successor the European Union, a little later on in the post-World War II era.

Many Latin American regimes with easy to amend constitutions similarly started to protect human rights most vigorously through multi-lateral treaties at about the same time.

After the French Revolution in 1789 and a wild three years of rapid regime changes, France vacillated between democratic republics that protected human rights and absolutist monarchies, and other variations in between, multiple times, before it settled into a democratic system of government in 1946 with the Third Republic, which was then replaced by the Fourth and then the Fifth Republic that continued to follow the Western Democratic capitalist model with human rights protections for individuals in a formal entrenched constitution. The timeline in France was as follows:

• French First Republic (1792–1804)
• French Second Republic (1848–1852)
• French Third Republic (1870–1940)
• French Fourth Republic (1946–1958)
• French Fifth Republic (1958–present)

There have been efforts in Hungary and Poland to reduce the strength or effectiveness of judicial review for constitutionality in recent years.

Predominantly Muslim Countries

The regime in Afghanistan that was established by the U.S. and its allies after the Taliban were temporarily defeated in 9-11-2001 entrenched many human rights and also Islamic religious law in its constitution, but this constitution ceased to have any force or effect when the Taliban regained power shortly after the U.S. military withdrew from Afghanistan in 2021.

Similarly, entrenched secular legal rights enforced by courts in Iran's constitutional monarchy, were dispensed with when the Shah was deposed in the 1979 Islamic Revolution.

In contrast, predominantly Muslim countries such as Indonesia, Iraq, Morocco, Jordan, and Tunisia for example, have recently made bigger (e.g., Iraq) or smaller reforms (e.g., Morocco and Jordan) in the direction of entrenched constitutional rights that give courts greater authority to protect individuals and/or invalidate legislation.

Turkey is another example of a country where court protection of individuals based upon an entrenched constitution has varied over time, to some extent vacillating between having more and fewer or less effective such protections.

Israel

Courts in Israel recently invalidated legislation there despite the fact that this country is often formally described as one in which parliamentary supremacy is the rule.

Answer 2

germany

While regular courts cannot legally determine the constitutionality of a law, they must still consider it. If they deem a law unconstitutional, they ask the constitutional courts (of the states or the nation) for a decision and suspend the trial until a decision is made.¹ This is regulated in Article 100 of the German Basic Law:

(1) If a court concludes that a law on whose validity its decision depends is unconstitutional, the proceedings shall be stayed, and a decision shall be obtained from the Land court with jurisdiction over constitutional disputes where the constitution of a Land is held to be violated or from the Federal Constitutional Court where this Basic Law is held to be violated.

The German Basic Law is somewhat interesting because it is immediately applicable law. Decisions of the Constitutional Court concerning the constitutionality of federal or state laws "have the force of law" (Section 31 of the Act on the Federal Constitutional Court).

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¹ An interesting example is the referral of the criminalization of Cannabis to the Constitutional Court in 1991. Judge Neskovic at the Landgericht Lübeck found that the provision in Art. 2 Par 1 GG, "every person shall have the right to free development of his personality [...]" (which has a remarkable similarity to the American "pursuit of happiness") included the right to inebriation, to get high; and that legalizing more dangerous drugs like alcohol while incarcerating cannabis users violated Art. 3 Par. 1, "All persons shall be equal before the law."

This was an enormously progressive move for a Landgericht in 1991. In effect, a generation had arrived in the nation's institutions which had experienced cannabis first hand and was not scared by the official deterrence. Nescovic would later become a member of parliament.

In its decision, The Constitutional Court denied a right to inebriation on the basis of the second part of Art 2 Par 1 which restricts the individual freedom: "Every person shall have the right to free development of his personality insofar as he does not violate the rights of others or offend against the constitutional order or the moral law." They explicitly denied a fundamental right to get high which would be excluded from these restrictions. They also stressed the prerogative of the legislative to decide which measures were adequate to reach a given goal, within the constitutional limits. They did, however, state that the (again interesting) implicit rule of reasonableness/prohibition of excessiveness demanded that private consumers of cannabis should normally not be imprisoned.

In effect, this was a first step towards legalization, even if legalization was formally still denied. In the following years, prosecution of private users was often effectively suspended in practice, and the police work focused on dealers.

Answer 3

canada

Yes. In interpreting a law alongside section 52(1) of the Constitution Act, 1982, courts have the power to issue "declarations of unconstitutionality." This of course does not remove the law from the statute books; that would require legislative action. But the court does, truly, declare the impugned law unconstitutional. This is an ordinary judicial power to determine a question of law (R. v. Sullivan, 2022 SCC 19, para. 48):

As judicial review of legislation is an ordinary judicial task consisting of the determination of a question of law, the legal effects of the declaration of unconstitutionality that results should be governed by the ordinary rules of stare decisis.

These are not merely orders disposing of an individual case, deciding not to apply the law to the person in front of the court. Certainly, they at least do that. But they also do more (paras. 53, 54):

the determination of that question of law is binding erga omnes as a matter precedent, according to the ordinary rules of stare decisis ...

... by interpreting the impugned law and the relevant provisions of the Constitution, whether the impugned law is inconsistent with Canada’s supreme law. If so, then the law is, of course, of no force or effect for all future cases, insofar as that judicial declaration made under s. 52(1) by a superior court is binding on other courts and within the right confines of the law relating to precedent.

Answer 4

france

Yes, there is a single court in France which can do so

The only authority that can rule unconsitutionality is the Conseil Constitutionnel

The Council cannot raise issues themselves (except in narrow cases) and the matter must be reffered to by either the :

• President
• Prime minister
• President of either the National Assembly or the Senate
• 60 members of a house of parliament

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The only other refferal way is the Question prioritaire de constitutionnalité (Priority question of constitutionality, or QPC)

This can only be raised by a party (not the court) currently in any active judicial process on a specifc part of a law/decree.

After being lodged as part of the proceedings, the QPC is vetted (to check if it is lodged in a non-frivoless manner) by either the Conseil d'État (highest administrative court) or the Cour de Cassation (highest criminal court) before being brought up to the council