Chapter 14: Constitutional Law and Courts
Tom Ginsburg* 1 INTRODUCTION The rise of constitutional courts and the expansion of constitutional jurisdiction is surely one of the most important legal developments of the last half century. It is a major factor driving the global judicialization of politics.1 By their nature, constitutional courts deal with inherently political issues, and are highly visible institutions with the potential to shape social understandings and expectations. It is therefore no surprise that they have attracted great attention from political actors, publics and scholars. Traditional legal theory has problematized constitutional review from a normative perspective. Much of this work has sought to resolve the so-called ‘counter-majoritarian difficulty’ in which unelected constitutional courts are thought to be anti-democratic because of their power to thwart the role of the majority. Socio-legal work, on the other hand, tends to proceed from a positivist perspective and has demonstrated the increasingly important role that constitutional law and courts play in many societies, including many new democracies. In this sense, it poses an empirical challenge to traditional legal theorizing because it has demonstrated that constitutionalization and democratization tend to proceed apace. This chapter reviews the socio-legal literature on constitutional law and courts. It begins with a historical survey of the rise of constitutional review, followed by an analysis of the various theories that scholars have offered to explain why constitutional review is adopted. The chapter then examines the various and growing number of studies of the functioning of constitutional review and its role in society. It also discusses ancillary...
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