D.4. Independence of the judiciary and the rule of law
French theorist Montesquieu contended that a framework in which various authorities exercised legislative, administrative, and judicial authority while all being bound by the rule of law was the best way to avoid despotism. He saw despotism as a looming danger to any government that was not already despotic and the principle of separation of powers refers to this theory. Judicial review is one of the strongest strategies courts use to defend the rule of law. Judicial review refers to the court’s authority to assess the legality of both government executive orders and laws established by the legislature. By employing this authority, the court maintains control over the legislative and executive branches.
The case of Marbury v. Madison (1803), in which Chief Justice Marshall established that the court had the authority to evaluate legislation adopted by the legislature, can hence be credited for giving birth to the concept of judicial review. However, a lot of academics have criticised this idea for a variety of reasons, including judicial authoritarianism, excessive dependence on judges, being undemocratic, and being a barrier to a strong democracy.