The Fuzzy Boundaries of (Un)constitutionality: Two Tales of Political Jurisprudence

By Hirschl, Ran | University of Queensland Law Journal, December 2012 | Go to article overview

The Fuzzy Boundaries of (Un)constitutionality: Two Tales of Political Jurisprudence


Hirschl, Ran, University of Queensland Law Journal


Having studied comparative constitutional law for over fifteen years, one of the things that becomes strikingly apparent are attempts by courts to portray obvious political rulings as stemming from an established constitutional doctrine. In this short essay, I wish to discuss two such instances: one is a pair of rulings by the Supreme Court of Pakistan concerning the legitimacy of the Musharraf-led military coup d'etat of 1999, and later the ousting of Chief Justice Iftikhar Chaudhry by the Musharraf regime; (1) the other is a landmark ruling by Turkey's Constitutional Court concerning the supposed unconstitutionality of a constitutional amendment aimed at revising Turkey's militant secularist outlook. (2) The practical outcomes of each of these two episodes, contested as they may be, are certainly within the realm of reasonableness. It is the attempt by courts and judges to make an obviously political decision appear as if it logically flows from formal law and their invention of grand constitutional principles to support that appearance that make these decisions prime exhibits in the pantheon of poor legal decisions.

But first, a bit of theoretical context. one of the striking phenomena in late-20th and early-21st century government is the ever-increasing reliance on constitutional law and courts to deal with some of the most fundamental political quandaries a polity can contemplate. In the past two decades, the judicialization of politics worldwide has expanded its scope beyond flashy rights issues to encompass what we may term 'mega-politics'--matters of outright and utmost political significance that often define and divide whole polities. (3) Core political controversies are framed as predominantly constitutional ones, with the concomitant assumption that courts are the suitable forum to deal with them. The list of examples seems endless: the fate of the American presidency or national health care plan; what is the exact meaning of Israel's self-definition as a Jewish and democratic state; the legitimacy of the German bailout deal or the status of German sovereignty in the larger EU; the validity of Russia's war in Chechnya or accession to the WTO; the dollarization plan in Argentina; disqualification of political parties in Turkey, Belgium and Spain; the scope of Islamic law as a source of legislation in Egypt or Malaysia; whether sending Korean troops to Iraq is allowed; whether violation of term limits by incumbent leaders in Colombia, Uganda, or Venezuela is constitutional. In short, to paraphrase Alexis de Tocqueville's observation with respect to the United States, there is now hardly any political disagreement in the world of new constitutionalism that does not sooner or later become a landmark constitutional case.

Just as the judicialization of mega-politics appears inexorable, so is the politicization of the judiciary--the inevitable flip side of judicialization. The more politically significant courts become, the greater the likelihood pertinent political stakeholders will seek to influence or control judicial appointments and outcomes. In that respect, an overwhelming body of evidence suggests that extra-judicial factors play a key role in constitutional court decision-making patterns, in particular in politically significant cases. (4) Constitutional courts and judges may speak the language of legal doctrine but, consciously or not, their actual decision-making patterns are correlated with policy preferences and ideological and attitudinal tilts; (5) as well as appearing to reflect strategic considerations vis-a-vis their political surroundings, panel compositions, professional peers, or the public as whole. This can be explained by reference to the costs that judges as individuals or courts as institutions may incur as a result of adverse reactions to unwelcome decisions, or through the various benefits that they may acquire through the rendering of welcome ones. (6)

A case in point is the Supreme Court of Pakistan's appraisal of the very legitimacy of the Pervez Musharraf-led military coup d'etat of 1999. …

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

The Fuzzy Boundaries of (Un)constitutionality: Two Tales of Political Jurisprudence
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.