What is the difference between abstract and concrete judicial review?

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The primary difference between abstract and concrete judicial review lies in whether the court's assessment of a law's constitutionality is tied to an actual case or controversy.12

  • Concrete judicial review (often called incidenter review) occurs only within the context of a specific legal dispute between litigants. In this system, a court examines the constitutionality of a law or action as it applies to the facts of a particular case. This is the standard model in the United States, where courts avoid issuing advisory opinions and require an actual case or controversy to exercise their power of judicial review.23

  • Abstract judicial review involves the examination of a law’s constitutionality without reference to a specific pending case or controversy. This process allows authorized entities—such as government officials or parliamentary minorities—to challenge the validity of a statute directly. Depending on the jurisdiction, this review may occur either before a law is promulgated (a priori) or after it has taken effect (a posteriori).231

Many constitutional courts in Europe and elsewhere are empowered to exercise both forms of review, whereas systems modeled strictly on the U.S. approach generally limit themselves to concrete review.123