Edited by Erin F. Delaney and Rosalind Dixon
Chapter 11: Losing faith in law’s autonomy: a comparative analysis
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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