On Law, Politics, and Judicialization

By Martin Shapiro; Alec Stone Sweet | Go to book overview

1 Law, Courts, and Social Science

Over the past half-century, the domain of the litigator and the judge has radically expanded. In successive waves of democratization and state reform, a 'new constitutionalism' (Shapiro and Stone 1994) has swept across Europe and made inroads into Africa, Latin America, and Asia. In moves of enormous consequence, new constitutions typically repudiate legislative supremacy, establish fundamental human rights as substantive constraints on legislators and administrators, and provide for judicial protection of these rights against abuses by public authority. At the international level, events appear as dramatic and transformative. The European Court of Justice has fashioned a quasi-federal, legal system out of a treaty (Stein 1981 ; Weiler 1999); the judicialization of the GATT was consolidated and institutionalized as the legal system of the World Trade Organization (Hudec 1992 ; Stone Sweet 1998a); the scope and effectiveness of regional and global human rights regimes have steadily expanded (Helfer and Slaughter 1997); and transnational business has constructed a private, 'a-national' legal system that today competes with national law and state courts (Dezelay and Garth 1996 ; Mattli 2001). We could go on. Our point is that it will be increasingly difficult for scholars who do empirical research on government, or governance, to avoid encountering a great deal of law and courts.

During this same period, the relative status of legal scholarship in the field of political science has steadily declined (Shapiro 1993a). This is not the place to chronicle or critique that discipline's uneasy relationship with one of its sub-fields. What is clear is that social scientists now focus increasingly on a range of issues that implicate law and courts. Game theorists in political science, for example, have shown on how rules and veto points structure legislative processes and condition policy outcomes (for example, Tsebelis 1999), while 'institutionalists' of a more sociological or constructivist bent argue that rule systems themselves help to shape identities, roles, and tastes (for example, Giddens 1984 ; March and Olsen 1989). Often enough to matter a great deal, the relevant 'rules of the game' are in fact legal rules; legal doctrine shapes the strategies of those who pursue their interests through

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On Law, Politics, and Judicialization
Table of contents

Table of contents

  • On Law, Politics, and Judicialization iii
  • Acknowledgements vii
  • Contents ix
  • List of Figures x
  • 1: Law, Courts, and Social Science 1
  • Political Jurisprudence 19
  • Judicialization and the Construction of Governance 55
  • Appendix 88
  • 2: Judicial Law-Making and Precedent 90
  • Towards a Theory of Stare Decisis 102
  • Path Dependence, Precedent, and Judicial Power 112
  • 3: Constitutional Judicial Review 136
  • The Success of Judicial Review and Democracy 149
  • Constitutional Politics in France and Germany 184
  • 4: Testing, Comparison, Prediction 209
  • The Giving Reasons Requirement 228
  • Appendix 290
  • 5: Judges and Company 292
  • Globalization of Freedom of Contract 296
  • Islands of Transnational Governance 323
  • 6: Abstract Review and Judicial Law-Making 343
  • References 376
  • Index 407
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