Comparative Judicial Review
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Comparative Judicial Review

Edited by Erin F. Delaney and Rosalind Dixon

Constitutional courts around the world play an increasingly central role in day-to-day democratic governance. Yet scholars have only recently begun to develop the interdisciplinary analysis needed to understand this shift in the relationship of constitutional law to politics. This edited volume brings together the leading scholars of constitutional law and politics to provide a comprehensive overview of judicial review, covering theories of its creation, mechanisms of its constraint, and its comparative applications, including theories of interpretation and doctrinal developments. This book serves as a single point of entry for legal scholars and practitioners interested in understanding the field of comparative judicial review in its broader political and social context.
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Chapter 6: Interpreting constitutions in divided societies

Hanna Lerner

Abstract

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.

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