Interests, Ideas, and Institutions in Comparative Analysis of Judicial Power

Article excerpt

In a high-profile 1993 publication about the status of scholarship titled "Public Law and Judicial Politics," Martin Shapiro wrote that "political science study of comparative constitutional law and courts has begun to flourish a little." He celebrated the fact that a growing, if still small, group of political scientists was attempting "to undertake comparative analysis of courts comparable to systemic comparative work on legislatures, executives and bureaucracies." However, he lamented, this group "remains small and rather isolated from the main body of comparativists," and "most comparative politics scholars remain woefully uninformed about constitutional law and courts" (p. 367).1

The minisymposium in the preceding pages of this edition of PRQ provides a welcome signal that Shapiro's lament is no longer warranted. Featured here are several of the many distinguished political scientists who in recent years have contributed conceptually sophisticated, empirically rich studies probing the proliferation of constitutions, constitutional courts, and judicialized politics around the world. Moreover, the intellectual connection and professional standing of this scholarship among comparativists seems to have grown substantially as well. And there is every reason to think that this symposium will advance these trends yet further.

This new collection has been comparatively oriented in at least two important regards. First, and most obvious, the authors offer empirical studies of judiciaries that have developed significance, or been "empowered," in seven national contexts over the past four decades or so. This sample is smartly subdivided between different regime types - including four in the process of transition from semiauthoritarian to democratic states and three relatively developed democracies dealing with issues regarding substantial minority group interests.2 As such, the studies provide much opportunity for theory building across national cases. Second, the studies are theoretically comparative in the sense that they critically engage with one of the leading analytical approaches to explaining judicial empowerment, which they label the "rational-strategic" model. That latter approach has been addressed so extensively in previous pages that I will not summarize its key features here. Instead, my concluding comments briefly offer some questions and puzzles at stake in the debate over how we analyze comparatively the dynamics of power at work in the politics of judicial institutions.

Pressing the Terms of Engagement

It is worth noting at the outset the terms and tenor of the theoretical engagement. For one thing, the symposium editors chose to focus in particular on the phenomenon of "judicial empowerment," thus placing the study of power and politics at the heart of the inquiry. This is laudable, for studies of law and courts, even by political scientists, do not always center so directly on questions of power. Moreover, the authors in the symposium are to be commended for their generous, thoughtful, and constructive challenges to rationalstrategic frameworks. The authors go out of their way at most points to underline that they do not dismiss or reject the rational-strategic approach so much as seek to expand, complicate, supplement, or refine its understandings in a variety of ways. The core critique is that the rational-strategic approach is not so much wrong as too narrow, too simple, and overbroad in its generalizations. The model has various degrees of analytical value in different contexts, symposium contributors acknowledge, but in nearly all cases, additional considerations are needed to make sense of how and to what effect courts increase their relative power. The symposium authors thus typically eschew either/or claims and offer instead arguments about other factors or understandings that are as important or that matter "along with" strategic-rational actions of political elites. The effort is one of "synthesis" rather than thumping and trumping. …