Comparative study: Finland vs France judicial review
⚖️ Comparative Study: Judicial Review in Finland vs France
1. Introduction to Judicial Review
Judicial review is the power of courts to examine the constitutionality or legality of laws, administrative actions, and government decisions. While most democracies have judicial review, the scope, nature, and institutional setup vary significantly.
2. Overview of Judicial Review in Finland
Finland has a parliamentary system with a strong respect for constitutional supremacy.
Judicial review is decentralized: All courts can assess the legality of laws and administrative actions.
No separate constitutional court; the Supreme Court and Supreme Administrative Court perform judicial review.
Constitutional review of laws is possible but limited; unconstitutional laws are generally interpreted in harmony with the constitution rather than annulled.
Pre-enactment review is conducted by the Parliament’s Constitutional Law Committee.
Courts can invalidate administrative acts violating law but cannot directly annul Acts of Parliament.
3. Overview of Judicial Review in France
France has a semi-presidential system with a specialized constitutional court—the Constitutional Council (Conseil Constitutionnel).
Judicial review is centralized: Only the Constitutional Council reviews the constitutionality of laws.
The Constitutional Council reviews laws before promulgation (a priori review).
Since 2010, a “Question Prioritaire de Constitutionnalité” (QPC) allows courts to refer constitutional questions to the Constitutional Council during litigation (a posteriori review).
Ordinary courts cannot declare laws unconstitutional.
Administrative courts like the Council of State (Conseil d'État) review administrative acts but not laws.
4. Detailed Case Studies and Judicial Review Mechanisms
Finland – Key Cases & Practices
Case 1: Supreme Court decision on freedom of speech (KHO 2015:18)
The Supreme Court dealt with a case involving limits on freedom of speech.
The Court applied constitutional principles to interpret the law but did not annul the law.
The case showed how courts apply constitutional principles indirectly to protect rights.
The Court held administrative decisions limiting speech unlawful under constitutionally mandated freedoms.
Case 2: Supreme Administrative Court on environmental law (KHO:2016:99)
Reviewed administrative permits for pollution control.
Court annulled the permit due to violation of environmental law, showing strong administrative judicial review.
Practice:
Parliament’s Constitutional Law Committee reviews proposed bills for constitutionality, influencing legislation before enactment.
Courts emphasize principled interpretation rather than outright annulment of laws.
France – Key Cases & Practices
Case 1: Decision No. 71-44 DC, “Freedom of Association” (1971)
Landmark case where the Constitutional Council declared a law unconstitutional for violating freedom of association.
This established constitutional review of laws before promulgation as a strong power.
Case 2: Decision No. 2010-600 QPC, “Priority Preliminary Ruling on the Issue of Constitutionality” (QPC introduction)
Constitutional Council accepted a referral via QPC from ordinary courts.
This allowed a posteriori review of laws on constitutional grounds during litigation.
Marked an evolution in French judicial review expanding access to constitutional justice.
Case 3: Decision No. 2013-353 QPC, “Same-sex Marriage”
The Council reviewed challenges to laws legalizing same-sex marriage.
The decision affirmed the constitutionality of the law, illustrating the Constitutional Council’s role in social rights and policy.
Practice:
Constitutional Council primarily reviews laws pre-promulgation.
Ordinary courts cannot invalidate laws but can refer constitutional questions.
Administrative courts (Council of State) focus on legality of administrative acts, not constitutional review of laws.
5. Comparative Analysis
| Aspect | Finland | France |
|---|---|---|
| Type of Judicial Review | Decentralized; all courts review legality and constitutionality indirectly | Centralized; Constitutional Council reviews constitutionality directly |
| Review of Laws | No direct annulment; laws interpreted constitutionally | Direct annulment of unconstitutional laws before promulgation; QPC allows a posteriori review |
| Pre-enactment Review | Parliament’s Constitutional Law Committee reviews bills | Constitutional Council reviews laws before promulgation |
| Role of Ordinary Courts | Supreme and Administrative Courts review legality and constitutionality of administrative acts and laws indirectly | Ordinary courts cannot declare laws unconstitutional but can refer questions to Constitutional Council via QPC |
| Review of Administrative Acts | Supreme Administrative Court has strong powers to annul unlawful administrative acts | Council of State reviews administrative acts but not constitutionality of laws |
| Scope of Judicial Power | Emphasis on constitutional principles applied through interpretation | Strong constitutional supremacy with binding decisions from Constitutional Council |
6. Concluding Remarks
Finland’s judicial review is characterized by decentralized, principle-based interpretation with strong administrative law courts but without explicit constitutional invalidation powers. It emphasizes legislative scrutiny through Parliament’s committee.
France has a specialized constitutional court that performs direct constitutional review and can annul laws. The system has evolved to include constitutional questions during litigation, enhancing access to constitutional justice.
Both systems reflect their political cultures: Finland’s consensus and parliamentary sovereignty versus France’s strong constitutionalism and centralized judicial oversight.
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