Between the Global North and the Global South
Edited by David Bilchitz and David Landau
Chapter 2: Institutional failure and intertemporal theories of judicial role in the global south
This chapter argues that a “global south” constitutionalism might be constructed in part on distinctive theories of the judicial role. Both constitutional design and jurisprudence suggest that newer or more fragile democracies are often preoccupied with problems of democratic erosion, political dysfunction, and institutional failure. Judges working in these contexts have responded with at least two distinct theories of their role. In the first, labelled constitutional realization, judges may relax constraints on the separation of powers and take action themselves in the event of widespread institutional failures that make other branches of government unable or unwilling to carry out assigned constitutional tasks. In the second, judges justify interventions as an attempt to improve the functioning of the political system over time. These theories share an intertemporal nature – they focus on what judicial activism can achieve over time, rather than whether judges are overstepping pre-existing, static constraints. This chapter finds that both theories are plausible but also highlights important and underexplored questions, both normative and empirical. Further, it suggests that while global north and global south contexts share common problems, the distinctive nature of problems across many newer or more fragile democracies makes it attractive to develop constitutional theories of the global south and to use those to dialogue with global north constitutional theory.
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