Alex Stein (Israel Supreme Court) has posted The Inevitability of Marbury v. Madison (ICL – Vienna Journal on International Constitutional Law (forthcoming in 2026)) on SSRN. Here is the abstract:
This Article uncovers three pivotal insights from Marbury v. Madison, highlighting their universal significance and enduring relevance in contemporary constitutional practice. Specifically, it argues that Chief Justice Marshall’s reasoning in this landmark decision built up a distinctly positivist value-free conception of legality capable of resolving constitutional crises. Based on this argument, the Article positions Marbury v. Madison not only as a foundational precedent for judicial review in the United States but also as a precursor to modern constitutional practice worldwide.
The positivist insights extracted from Marshall’s decision include the following: (1) the treatment of law as a social fact; (2) the adoption of an “internal point of view” in interpreting legal texts; and (3) the identification of “secondary” power-conferring rules that derive from the foundational “rule of recognition.” The Article reveals that Marshall’s insights align remarkably with the principles of legal positivism articulated by H.L.A. Hart and his followers over 150 years later. The Article examines these insights in light of recent constitutional developments in Israel, where the author, as a Supreme Court Justice, applied Marshall’s jurisprudential framework to address fundamental questions that arose in connection with judicial review and constitutional amendments. This discussion goes beyond Israel’s borders: it demonstrates that Marshall’s positivist framework is essential for legitimizing judicial review and articulating the notion of “constitutionality.” By uncovering the conceptual necessity of this framework for all forms of judicial review, the Article brings to light the timeless and universal nature of the Marbury v. Madison decision, emphasizing its continued relevance in addressing contemporary constitutional challenges.
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