This chapter surveys processes of achieved or failed constitutional-cultural transformation in five societies. The United States and India, the chapter argues, have each undergone a significant shift from a legalistic to a more instrumentalist conception of the law/politics relation. Germany, Australia, and South Africa, on the other hand, have all faced moments in which such a shift was contemplated, but have retained a stronger commitment to a conception of law as autonomous from politics. After tracing the processes followed in each instance, the author accounts for these different outcomes by reference to two conditions, each of which is necessary but neither of which is on its own sufficient for a transformation of the sort contemplated: (1) an exogenous shock to the complex of legitimating ideas in which law’s claim to authority in a system of judicial review is understood, and (2) legal or political actors able and willing to exploit the shock to drive the transformation to a new conception of the law/politics relation.
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Karen J. Alter
This chapter begins with a brief discussion of the how states delegated to international courts the jurisdictional authority to conduct constitutional review of international and state acts, but how effectively exercising this delegated authority depends on a domestic legal culture of constitutional obedience to international law. It then surveys different examples of national supreme courts embracing or rejecting the validity of international judicial decision, defining two different approaches to international judicial review: the luxury good optic, which suggests that although international courts (ICs) may exercise valid legal authority to generate binding legal rulings, IC rulings are external and domestically superfluous, providing neither binding nor guiding jurisprudence relevant in the national realm, and the fail-safe optic, which insists that IC rulings must guide and perhaps even bind national legal review. The author examines examples from the United States, Columbia and Germany to illustrate the luxury-good optic and examples from Nicaragua and Zimbabwe to illustrate the failsafe optic before concluding that there is an intermediate approach taken by the German Constitutional Court, which is superior to these two alternatives.
Robert A. Kagan, Diana Kapiszewski and Gordon Silverstein
In recent decades, high courts in many nations have taken on dramatic new roles in governance. This chapter notes five recurrent domains of political conflict into which high courts have been pushed, or asserted themselves, to play new roles: disputes between political incumbents and challengers, intragovernmental disputes about who governs, challenges to government stasis and maladministration, cultural and religious cleavages, and disputes about rights and equality. Exploring these judicial roles, the authors provide examples from countries around the globe. The chapter then synthesizes three factors which affect increases (and retractions) in judicial assertiveness: national institutional and political structures, contemporary political dynamics, and court-related factors. Finally, the authors identify trends which help account for the expansion of judicial roles: the spread of constitutional democracy, globalization and economic liberalization, increases in government activism, and evolving conceptions of law.
Steven Gow Calabresi
This chapter advances a theory of the emergence of judicial review that is predicated on two aspects of certain nation-state formation: the need for a federalism umpire and for rights protection due to the need to right historic wrongs. In the United States, for its first 70 years the Supreme Court acted as a federalism umpire in a manner consistent with the British system of judicial review that the colonies experienced before independence. However, it was not until the righting of the wrongs of slavery and the Black Codes that judicial review greatly expanded in scope. In Germany, in contrast, while federalism umpiring was an important role for the Constitutional Court, the much more important justification for its existence was righting the wrongs of the Holocaust and Nazism. Finally turning to India, the author argues that the same two motivations apply with the additional need for honest rule of law motivating a great expansion of judicial review.
Vicki C. Jackson
This chapter examines certain ways that proportionality—either as a structured doctrine or as a concept or principle—may affect constitutional adjudication, based on an examination of Australian, Canadian, South African, and US constitutional cases. It explores differences between proportionality as a doctrine and proportionality as a principle and looks at whether proportionality as an approach is experienced by judges as a choice or a necessity. It also explores a potentially significant analytical difference that exists between the principle of proportionality and the doctrine of proportionality review, raising the possibility that the minimal impairment (or “necessity”) inquiry, if always read as a stringent, less restrictive means test, may be at odds with the more general principle of proportionality as applied to democratic self-governing decisions and, if so, asking whether this circumstance should affect application of the doctrine or, rather, should affect the nature of the remedy required.
Alon Harel and Adam Shinar
Rather than considering judicial review as an overarching mechanism to protect rights, democracy, or justice, or to promote other desirable ends, this chapter examines which institutional features facilitate the realization of non-instrumentalist concerns underlying judicial review. After first surveying various instrumentalist theories, the authors argue that these theories fail because they rest upon empirical conjectures which cannot be substantiated. They then defend a non-instrumentalist theory of judicial review: Individuals have a right to a hearing if there is an alleged rights violation, and it is the protection of the right to a hearing that ultimately justifies judicial review. Finally, the chapter aims to understand how the right to a hearing is implemented in various jurisdictions. It thus draws on examples from the United States, Israel, India, Columbia, and South Africa to explore the importance of three aspects of the right to a hearing: the opportunity to voice a grievance, the opportunity to be provided with a justification for a decision, and the duty to reconsider the initial decision giving rise to the grievance.
Vicki C. Jackson
U.S. constitutional law concerning the relationship between executive and legislative power is surprisingly thin. There is little case law directly designed to preserve the authority of Congress as the pre-eminent place of democratic self-governance; there is almost no consistent case law constraining the processes of legislation or requiring its generality. There is only somewhat more case law constraining the executive power vis-à-vis Congress. With respect to Congress’s relation to the courts, there is some case law, but of quite limited scope, that prevents Congress from overstepping into the judicial arena. There is, however, much constitutional law concerning the appointment and removal of government officers, and many cases elaborating the presumption of judicial review. The absence of case law on delegation of powers, or requiring legislative generality, or defining areas where enacted legislation is required for lawful government action, or constraining independent presidential action, may seem inconsistent with basic premises of the separation of legislative and executive power. But intense political party competition at the national level produces a degree of self-checking capacity. Moreover, the constitutionally protected presence of various organized economic and social interests may also serve as a check on undue institutional aggrandizement. Yet these doctrinal silences may matter, especially to the extent that they contribute to democratic malfunctions, such as the acceptance of gridlock, brinksmanship and executive law-making on major issues as normal. Epistemic uncertainty, however, abounds, in trying to determine whether changes in separation of powers doctrines will improve or worsen these problems. Understanding the actual functioning of the political system cannot be accomplished through the disciplinary tools of law alone. Formalist approaches reasoning from purportedly clear meanings of text are often justly criticized for ignoring broader questions of purposes and context. Yet critiques of formalism, and arguments for more flexible approaches based on concern for an overall balance of legislative and executive powers, may assume that the effects of differing allocations of powers on well-functioning democracies can be known, an assumption that may be more heroic than correct. Judicial modesty and interpretive rather than constitutional approaches may therefore be appropriate presumptive starting points.
Edited by David Bilchitz and David Landau
Daniel Bonilla Maldonado
The chapter describes and analyses the conceptual structure of the principle of separation of powers. As a consequence, it describes and analyzes its premises, the basic concepts it constructs, the particular type of subject it creates, and the notions of time and space it forms. The chapter is divided into four sections. The first section presents the key components of the current dominant interpretation of the principle separation of powers. The second section explores the concept of subject constructed by the principle of separation of powers. It constructs a collective subject, the State, which is anthropomorphized and presented as a victimizer and an individual subject, an abstract individual that is articulated as a victim of the collective subject. The third section of the chapter, studies the notion of time constructed by the principle of separation of powers. The concept of time has two dimensions. The first is the circular and infinite notion of time in which the principle operates. The second is the notion of time that intersects with the idea of social change that overlaps with the principle of separation of powers. The fourth and last section of the chapter examines the concept of space constructed by the principle of separation of powers. The conceptual geography elaborated by the principle has multiple levels. The primary one is that of the nation-state. Nevertheless, the space of the principle also has dimensions that are internal and external to this way of thinking about the organization of a political community.
In many constitutional systems around the world, the powers of the executive branch are vast, ever-expanding, and elusive. This chapter draws on a number of examples, from “established” and “fragile” democratic contexts to develop a typology of the different functions that courts can play in checking executive power. It concludes that courts can be surprisingly successful in limiting the growth of even powerful executives. It finds that, as a strategy, courts are more likely to be successful when they focus on empowering other institutions that can serve as a counterweight to powerful presidents, rather than seeking to shoulder the entire burden of limiting executive power themselves. Through case studies the chapter explores the circumstances under which courts have sought to make the constitution matter by placing limits on executive power.