JOURNAL OF BEIJING UNIVERSITY OF AERONAUTICS AND A ›› 2014, Vol. 27 ›› Issue (3): 69-74.DOI: 10.13766/j.bhsk.1008-2204.2014.0131

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On Judicial Review from the Perspective of Democracy:Centered around Democracy in America

Chen Yan   

  1. School of Law, Peking University, Beijing 100871, China
  • Received:2014-03-31 Online:2014-05-25 Published:2014-05-28

Abstract: In justifying judicial review, the traditional explanation resorts to the theory of natural right, and the classic formula is this: the fundamental rights do not depend on the outcome of any kind of vote. But this is not self-consistent theoretically. The logic of judicial review, therefore, needs to be understood within the structure of the popular sovereignty itself. From the perspective of democracy, the court is produced within the structure of a democratic state, and judicial review is conducted in accordance with democratic rules and procedures. From the perspective of democracy, judicial review is the balancing valve of the political constitutional structure.

Key words: judicial review, theory of natural right, democracy, spirit of jurist, political constitutional structure, Democracy in America

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