Judicial supremacy
The common law doctrine of judicial supremacy, as influentially defined by renown English jurist Lord Coke, in Bonham’s case in the early seventeenth century, is the legal tradition that, “when an act of Parliament is against common right or reason or repugant or impossible to be performed, the common law will control it, and adjudge such act to be void.”
Defined elsewhere, this time in the judicial statements of the US Courts of the early nineteenth century, the doctrine of judicial supremacy asserted the inherent right of the courts to strike down statutes for violation of the “eternal principles of justice which no government has a right to disregard.”
In practice, few nations have a legal tradition that incorporates an unrestrained doctrine of judicial supremacy. In most nations, the judiciary is generally recognised as only having the right to review legislation for consistency with a written constitution of some kind, not with the fundamental concepts of natural law. In nations that possess an unwritten constitution, the result is frequently the supremacy of a doctrine of parliamentary sovereignty. Elsewhere, only the head of state (often a monarch) can withhold assent to legislation.
Current Legal Developments in Xirnium
The most recent decisions of the High Supreme Court have ultimately left unclear the question of whether the doctrine of judicial supremacy is or is not “good law” within the Republic. Justice Óreänär, one of the High Law Lords of Appeal of the High Supreme Court, opined that “a judicial repository of the power of final review is unavoidable, since the legislature cannot be expected to annul its own acts; and the executive, even if it were not a party to such acts, is scarcely equipped for the tasks of objective interpretation involved”. Indeed, many Xirniumite jurists have long enunciated the view that the High Supreme Court has the extraordinary “reserve power” to strike down Acts of Parliament in clearly exceptional circumstances, which would make Xirnium remarkable in being one of the few nations with an unwritten constitution nonetheless recognising a limited form of judicial review.
Such a power, however, if it exists, has never been used - and it is difficult to imagine a situation extreme enough where it might ever be used. Many of the Justices of the High Supreme Court are greatly opposed to the notion of judicial supremacy, viewing it as a threat to the doctrine of parliamentary supremacy and, by extention, popular sovereignty. If the High Supreme Court were ever to one day strike down a law of the Supreme Parliament, the ramifications for Xirniumite legal theory, which has long been founded on the cornerstone doctrine of parliamentary sovereignty, would be untold.
