Judicial Review in the Contemporary World — Retrospective and Prospective (With J. H. H. Weiler)

Our purpose in this article is to revisit, update, and theoretically revise Mauro Cappelletti’s path breaking work Judicial Review in the Contemporary World. Our main cartographical device, in homage to Cappelletti, is the wave metaphor. We map three sequential and overlapping worldwide, global waves of judicial review within a constitutional order. The first wave is the series of “constitutional revolutions” within national legal orders; the second wave is the emergence of international law as the source of the higher law which courts use in their exercise of their power of judicial review. The third wave is a response and reaction to the first and second waves: One dimension of the third wave is the attempt of domestic courts to make up for the rule of law, democratic and identitarian lacunae in transnational governance (voice). Another dimension — exit — is the set of instances in which courts (and states) seek to exit the first and/or the second wave. The interplay between the waves and their dialectical features constitute the explanatory framework we offer in this article. By highlighting the dialectical relations within and between waves we hope to challenge a dominant narrative on constitutionalization processes as progressive and evolutionary.