Weak and Strong-Form Review: The Incurable Judicial Mistake of Striking Down and Refusing to Recognise Primary Legislation
| Author | Kieran Spellman |
| Position | LLB (University of Southampton) |
| Pages | 1-17 |
(2022) Vol. 12
Weak and Strong-Form Review: The Incurable Judicial Mistake of
Striking Down and Refusing to Recognise Primary Legislation
Kieran Spellman*1
Abstract
This paper covers the deplorability of the strong-form version of judicial review, focusing on both the
commonwealth and American jurisdictions, engaging a critical analysis of the action of judges striking down or
refusing to recognise politically legitimately enacted primary legislation. That perspective is in aid of endorsing
its counterpart system, the weak-form version o f judicial review, considering a modern political and legal
environment rife with issues of judicial overreach and undemocratic political interference. This paper seeks to
highlight such issues prevalent within strong-form review and render such a system untenable. Its context will
provide an analysis of the incompatibility between judges and policy issues, warning against such political
overreach and interference inherent within the act of providing any determination as to the enforcement of primary
legislation. Further, this paper locates the democratic deficit prevalent within the judicial usurpation of those
political powers from elected representatives and the represented, in the act of striking down or refusing to
recognise democratically deliberated and enacted primary legislation. Finally, this paper will conclude on a critical
response to the purported claim that commonwealth jurisdictions, as an archetype for the weak-form model,
function as strong-form systems in application, preferring the strong-form judicial supremacy towards primary
legislation and the blurred separation of powers it entails.
Introduction
t is central to those universal political institutions entrusted with maintaining the
principles of legality, that the preservation and defence of constitutional human rights is
consistently prioritised and upheld. Such a maxim is best facilitated through the
mechanism of judicial review, as it is common for these establishments to entrench
individual rights within constitutional instruments and primary legislation, so judges are best
poised to interpret and govern the legality of such activity. Although such instruments perform
to facilitate the preservation of these rights, there may equally be instances where primary
legislation acts to limit the scope of those rights. Judicial review then aids this defence through
an interventionist framework to abrogate any active attempts of governmental prejudice against
individual rights, embedded within such primary legislation.
Nonetheless, this threatens the untenable situation whereby judges, engaging in the judicial
review of such rights-defying primary legislation, face threatening political and democratic
friction. These members are ascribed with either respecting political sovereignty, through
offering recommendations of legislative amendments, or overreaching into the legislative
* LLB (University of Southampton).
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(2022) Vol. 12
process through refusing to recognise or strike down politically legitimate primary legislation.
This spectrum of interventionism manifests between two distinct forms of judicial review –
‘Weak-form’ and ‘Strong-form’.
Weak-Form Review
The central characteristic of this less worrisome ‘weak-form’ strain of judicial legislative
review, resonating closely with the paradigm of ‘commonwealth constitutionalism’,2
comprises a judicial custom of upholding legislative rights violations, but instead issuing non-
final recommendations for amendments against constitutional norms.3 This in turn ‘decouples
judicial review from judicial supremacy by empowering the legislature to have the final word’.4
Incidentally then, the identity of weak-form review fundamentally descends from respective
legislative bodies retaining a conclusive, unfettered discretion to either calibrate the
contravening instrument with individual rights or refuse those judicial recommendations,
endorsed through judges’ rectification and application of the instrument.
As a result, weak-form systems ‘provide an opportunity for judicial oversight of legislation
without displacing the ultimate power of legislatures to determine public policy’.5 Then
displaying a respect for both the separation of powers and sovereignty of the legislating body,
as courts ‘interpret but do not displace legislation.’6 Judicial rights interpretations of primary
legislation then become merely ‘provisional’,7 creating a more ‘dialogic’,8 collaborative
relationship between the branches towards preserving individual rights but equally striving to
preserve those constitutional principles that outline the distribution of powers within political
orders.
Strong-Form Review
The problematic counterpart to weak-form, namely, ‘strong-form’ review, embodies a
systematic judicial strike down power to refuse to recognise primary legislation in
contravention with individual rights,9 and allegedly ‘appears to be a potent mechanism of civic
empowerment in the face of potentially arbitrary governmental decision making’.10 It closely
2 Rosalind Dixon, ‘Weak-Form Judicial Review and American Exceptionalism’ (2012) 32 OJLS 487, 487.
3 Aileen Kavanagh, ‘What's So Weak About “Weak-Form Review”? The Case of The UK Human Rights Act
1998' (2015) 13 IJCL 1008, 1011.
4 Stephen Gardbaum, ‘The New Commonwealth Model of Constitutionalism’ (2001) 49 am. J. Comp. l, 3.
5 Mark Tushnet, ‘New Forms of Judicial Review and the Persistence of Rights- and Democracy-Based Worries’
(2003) 38 WFLR 813, 831.
6 ibid, 9.
7 Aileen Kavanagh, ‘What's So Weak About “Weak-Form Review”? The Case of The UK Human Rights Act
1998' (2015) 13 IJCL 1008, 1011.
8 ibid, 5.
9 Normally embodied within a constitutional instrument or Bill of Rights, such as in American
Constitutionalism.
10 Lars Vinx, ‘Republicanism and Judicial Review’ (2009) 59 UTLJ 591, 591.
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