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  • Judicial Review and the Arab World
  • Nathan J. Brown (bio)

In recent years, the global spread of democracy has been accompanied by a far less noticed, but even more pervasive political change: the acceptance of judicial review and the establishment of specialized constitutional courts. Judicial review has become nearly ubiquitous in emerging democracies and is increasingly viewed as a prerequisite of healthy democratic development. The democratic acceptance of judicial review has been both imperceptible and widespread, but this should not obscure an underlying puzzle. How did the least democratic branch of government—the judiciary—come to be seen as the necessary guardian of democratic values? Historically, democrats had regarded judicial review with some suspicion. Examining how and why this perception has changed helps us understand the necessity for judicial review as well as its limitations.

Not only is the democratic acceptance of judicial review a historical and ideological puzzle, it also poses an immensely important practical challenge for emerging democracies. How can judicial review operate effectively in societies where democratic institutions and practices are still embryonic? In establishing constitutional courts as one of the first steps in the construction of a new democratic system, countries in transition have typically copied institutions that have functioned well in established democracies. But such models might be inappropriate for transitional countries where constitutional courts are asked to function in far less auspicious circumstances. A more useful, if unusual, parallel may be drawn with the Arab world, where constitutional courts have a history of operating in nondemocratic settings. Understanding the operation [End Page 85] and limits of constitutional courts in the Arab world sheds unexpected light on the development of judicial review in transitional countries.

Judicial review developed initially as a by-product of constitu-tionalism. Under a constitutional system, public authorities, even those elected by the people, must operate within the limits defined by constitutional law. While constitutionalism is now widely viewed as intimately related to democracy, this has not always been the case. Constraining democratic governments by law was once seen as denying the majority its wishes. In the past, many a constitutionalist regarded popular majorities with suspicion, fearful that they might violate fundamental rights and principles for ephemeral or self-interested reasons. Many a democrat, on the other hand, regarded constitutionalism as an attempt to contain the popular will with dry legalism and outdated documents. Democratic suspicion of constitutionalism once extended to judicial review, as the latter was often seen as a way of allowing judges, rather than the people’s elected representatives, to interpret constitutional texts.

It should not be at all surprising, therefore, that judicial review initially emerged in the United States, the first country to attempt to contain democratic practices within constitutional limits. American constitutionalism sought to allow democracy to operate while curbing its excesses; judicial review came to be seen as a vital corrective to unlimited democracy. Yet even as other countries followed the American example of adopting a written constitution, most rejected judicial review. European democracies, in particular, tended to take a hostile view of judicial review because it threatened to restrict the authority of popularly elected legislatures. If a constitution emanated from the sovereign will of a people, then the people’s representatives, sitting in parliament, were assumed to be the best interpreters of that will. In France, constitutional supervision originally emerged as a function of the legislature and not of the judiciary, as prerevolutionary judicial activism had led most French democrats to view the judiciary as a potential bastion of privilege and reaction. In other European countries, such as Sweden and Norway, the parliament played a major, often preponderant, role in constitutional supervision. In most democracies, judicial review came to be seen as a limitation on the sovereignty of the people. Communist states later adopted the same view.

Democratic suspicions of judicial review were well-founded, for it had indeed often been instituted in order to restrict popular majorities, as represented in parliaments. Instead of emerging as a result of judicial initiative or customary practice, judicial review was advocated in Sweden in response to universal male suffrage and parliamentary supremacy. 1 In France, the Council of State, an advisory and judicial body, asserted the right...