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.
Erin F. Delaney and Rosalind Dixon
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.
Rosalind Dixon and Tom Ginsburg
This chapter explores the strategic foundations of judicial review, by developing the idea of judicial review as a form of political “insurance”. Building on prior work on the insurance function of constitutions and courts, it develops a three-part typology of constitutions as a form of political insurance: first, the idea of constitutions as a form of power-based insurance; second, as a form of personal insurance for political leaders; and third, a form of policy-based insurance for elites facing a loss of internal or external political influence. Each type of insurance, the chapter suggests, implies somewhat different choices at the level of constitutional design—that is, in the design of constitutional language, amendment rules, constitutional courts, and procedural rules of access to judicial review. Each also raises distinct risks of “nullification” or “cancellation”. The chapter explores these risks, and offers new insights about how and when they are most likely to arise: Constitutional insurance, it ultimately suggests, is most likely to be effective where it is multi-sided in nature, offering some potential pay-off to all major political players. The chapter illustrates these arguments with examples from South Africa, Mexico, Italy, Japan, Taiwan and Romania, among other countries.
This chapter approaches comparative constitutional law from a court-centered perspective rather than a rights-oriented perspective. The author discusses the role of new constitutional courts in forestalling a return to an autocratic past and in acting as the handmaidens of a new democratic order, by considering court creation in a broad swath of European countries and South Africa. The chapter pays particular attention to the specific role that the Constitutional Court in South Africa played in moving the country from a provisional to a final constitution. Next, the author reviews the role of constitutional courts in new democracies in aiding quick transitions to basic democratic governance before constitutional drafters are able to reach full agreement on and flesh out the specifics of constitutional compromise. Finally, the chapter assesses how courts in Argentina, Columbia, South Africa, Germany, India, and Israel have survived confrontations with political power with varying success.
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.
The chapter tackles the special case of judicial review in divided societies, where judges are required to interpret the constitution in the context of ongoing public, political, and constitutional debates on the vision of the state. While empowered judiciaries are expected to serve as chief protectors of constitutionalism and liberalism, in divided societies they often face foundational controversies left unresolved by the constitutional drafters. Under such circumstances, courts’ involvement may intensify rather than mitigate identity conflicts. Drawing on the experience of India, Israel, and Tunisia, the chapter analyzes the risks and opportunities involved in constitutional drafting and constitutional interpretation in deeply divided societies, arguing that under conditions of foundational disagreements over the basic norms and values that should underpin the state, judicial intervention in controversial issues may generate a harsh political backlash and weaken the court’s legitimacy as a political neutral defender of democratic procedures.
Salma Waheedi and Kristen Stilt
This chapter begins by providing a background to Islamic law and constitutions in the Muslim world. The authors then present a classificatory scheme that outlines the different institutional design models for constitutional interpretation in Muslim countries. These include a secular model, an Islamic model, and a hybrid model, with different countries falling along a spectrum of variations. The chapter considers several case studies, such as Kuwait and Egypt for the secular model, Iran and Saudi Arabia for the Islamic model, and Malaysia, Afghanistan, and Pakistan for the hybrid model. The chapter concludes by highlighting the ways in which the political context and certain choices in constitutional drafting can foster one system or another along the spectrum.
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.
Wen-Chen Chang and Yi-Li Lee
This chapter examines the dynamics of having a constitutional court separate from the ordinary appellate structure of a court system, using South Korea and Taiwan as comparative case studies. The authors open by examining the differences that choices of institutional design, appointment mechanisms, and contextual dynamics make in the development of systems of constitutional review. They find that notwithstanding a clear jurisdictional distinction, tension nevertheless emerges between the Constitutional Court and the Supreme Court in South Korea, whereas in Taiwan, where there is not a clear division of jurisdiction, the Constitutional Court, Supreme Court, and Supreme Administrative Court have collaborated. This chapter concludes by suggesting that institutional design, appointment mechanisms and contextual dynamics are the key to explaining the competitive or collaborative power configurations among multiple top courts.
Tonja Jacobi, Sonia Mittal and Barry R. Weingast
This chapter argues that the United States Constitution is self-stabilizing. A self-stabilizing constitution creates incentives for all relevant actors to abide by the rules. Drawing on earlier work, the authors argue that to be self-stabilizing, a constitution must: (1) lower stakes in politics for both ordinary citizens and powerful elite groups; (2) create focal points that facilitate citizen coordination against transgressions by government officials; and (3) enable adaptation over time. The Supreme Court—through powers of judicial review and institutional practices—has assumed an increasingly important role in maintaining constitutional stability. The chapter contends that the Court can lower the stakes, facilitate coordination and enable adaptation—strengthening the self-stabilizing characteristics of the Constitution—though it has not always done so. In so arguing, the authors offer a new framework for understanding the Court’s opinions, and ultimately, the work of the nation’s top judges.