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Erin F. Delaney and Rosalind Dixon
The late 20th and early 21st centuries may well be marked as the Judicial Era. Courts have burgeoned across the globe. With this turn to judicial power has come the rise of judicial review—a court’s review of a legislative or executive act for constitutional compliance. Judicial review now exists in some form in more than two-thirds of countries worldwide (Dixon and Ginsburg, Chapter 3, this volume), including in many new and fragile democracies. And it has further expanded to the international arena, with judicial review by international courts of both supranational and national acts. Accompanying this rise of courts has been a growth in academic commentary and discussion about the justifications for and the scope of judicial review. Oftentimes the focus has been a normative analysis of the role of a court in a specific national system, but recent work has showcased a more theoretical and comparative trend (see, e.g., Daly 2017; Ginsburg 2003; Gloppen et al. 2004; Hirschl 2004, 2014; Issacharoff 2015; Kapiszewski et al. 2013; Sadurski 2008; Yap 2017). This volume builds on the existing literature by providing a distinct interdisciplinary and global approach to the core questions surrounding judicial review: What accounts for the adoption of judicial review in various contexts, or justifies its normative foundation? What determines its scope and effectiveness? How is it structured, institutionalized and operationalized? A key premise of this volume is that, to analyze courts and explore their constitutional role, we must situate them in a broader social and political context.
David Landau and David Bilchitz
The goals and thinking behind the doctrine of the separation of powers have proven to be so compelling that in virtually all democratic systems across the world, some version of the separation of powers concept has been enshrined in the constitution. The contributors to this volume were motivated by a recognition of the value that the doctrine has but also by the need to re-think its core aspects in light of recent changes both in design and practice. Much recent work has sought to develop new theoretical defenses or reconceptualize the purpose or functioning of the separation of powers. In contrast, this volume examines the evolution of the doctrine in light of important developments that we believe have been underexplored in existing work. First, the recent past has seen important changes in the field of constitutional design. These trends are most pronounced in what Daniel Bonilla has called the constitutions of the “global south,” but they are far from exclusive to new or more fragile democracies. These include questions about the changes in function of existing institutions in light of the inclusion of more expansive lists of rights such as socio-economic rights. They also include the widespread inclusion of independent accountability institutions – such as human rights commissions – whose place within the existing separation of powers is unclear. Secondly, a series of political and technological changes have altered the way the traditional model functions. While these shifts are difficult to generalize across countries, scholars have noted an increase in executive power and a decrease in legislative legitimacy and importance. The chapter examines the implications of these practical shifts for the theory of the separation of powers. Thirdly, we pose the question whether the differences between the constitutionalism that is developing in the global south and the traditional constitutionalism of the global north requires a divergent conception of the separation of powers, or whether a unified theoretical conception is possible. Lastly, we attempt to provide an understanding of how the various chapters in the book tackle the problems we examine.