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53 S. Cal. L. Rev. 409 (1979-80)
The Mighty Problem of Judicial Review and the Contribution of Comparative Analysis

handle is hein.journals/scal53 and id is 425 raw text is: THE MIGHTY PROBLEM OF JUDICIAL REVIEW AND THE CONTRIBUTION OF COMPARATIVE ANALYSIS MAURO CAPPELLETTI* European observers should be the last to be surprised by the fact that judicial review of legislation, albeit nearly two centuries old in the United States, is subject to continuous heated debate in that country. To be sure, the logic of Chief Justice Marshall's doctrine in Marbury v. Madison'-if the Constitution is to be higher law, judges must be bound to apply it over conflicting ordinary law2-is as forceful as it is simple.3 Alexis de Tocqueville recognized the strength of the Marbury logic when he wrote that the raison d'Etat alone, and not the raison ordinaire, had led France to reject the same doctrine.' Yet, especially when extended to unavoidably vague value judgments like those inher- ent in bill-of-rights portions of constitutions, the application of the Marbury doctrine raises exceedingly serious questions. Ultimately, these questions turn on the probl~me formidable of the role and democratic legitimacy of relatively unaccountable individuals (the judges) and groups (the judiciary) pouring their own hierarchies of val- © 1979 Mauro Cappelletti. * Professor of Law, European University Institute at Florence and Stanford University; Foreign Member of the British Academy and the Royal Academy of Belgium. Dr. jur. 1952, University of Florence; Dr. hon. c., University of Aix-Marseilles and University of Ghent. This Article was prepared for the University of Southern California Conference on Compara- tive Constitutional Law and as part of the research project, European Legal Integration and the American Federal Experience sponsored by the European University Institute and the Ford Foundation. The author wishes to thank Mr. Patrick Noonan, an extern student from Stanford Unviersity School of Law at the Center for Comparative Judicial Studies (Florence), for editorial assistance. 1. 5 U.S. 135, 1 Cranch 137 (1803). 2. Id. at 175, 1 Cranch 177. 3. See M. CAPPELLETTI, JUDICIAL REviEw IN THE CONTEMPORARY WORLD 26-27, 52 (1971). 4. 1 A. DE TOCQUEVILLE, DE LA DEMOCRATIE EN AMERIQUE 179-80 (1840).

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