The Legitimacy Basis Of Judicial Review

Judicial review has become one of the most important systems around the world to keep the authority of constitution, to safeguard democracy, to protect human rights since Marbury v. Madison in 1803. But arguments against judicial review have never stopped. Scholars in western countries developed some theories to defend the legitimacy of judicial review since 1960s. This article tries to demonstrate the legitimacy basis of judicial review on the basis of reviewing the existed theories.The article demonstrate the legitimacy basis of judicial review from several aspects, such as the highest rank of constitution, separation and balance of power, the substantial democracy, the liability of court in constitutionalism, the advantages of review by court. The article especially raised a concept of substantial democracy, and demonstrates that judicial review is able to help to protect the basic political rights of citizens, which is an important condition of democracy, and it can also guarantee the majority rule, thus judicial review is not undemocratic. It has sufficient basis of legitimacy. The article also analyzes the relationship between judicial review and separation of power, and insists that judicial review materialize the guarantee the separation of power.The article then puts forward some elements to guarantee the judicial review, such as judicial independence, the professional judges, the authority of judicial system, written constitution, reasonable review standard, the avoidance of political issues, etc. The judicial authority shall respect other political departments, and shall be cautious to not to overstep its purview and replace the constitution of the people with the"constitution of the judicial authority".The article analyzes the necessity, possibility of the introduction of judicial review in China, and conceives that the Chinese judicial review shall mix up the characters of American modes and civil law modes, i.e., when common courts find the issues might be against constitution, the courts shall report to the supreme court, who will interpret on the issues.