The Constituted Nature of Constituents' Interests: Historical and Ideational Factors in Judicial Empowerment

By Hilbink, Lisa | Political Research Quarterly, December 2009 | Go to article overview

The Constituted Nature of Constituents' Interests: Historical and Ideational Factors in Judicial Empowerment


Hilbink, Lisa, Political Research Quarterly


Through an analysis of constitutional transitions in one democratizing case (Spain 1978) and one authoritarian case (Chile 1980), this article argues that judicial empowerment can be accurately explained only through reference to the historical and ideational context in which institutional designers operate. Historical and ideational factors-that is, shared experiences, beliefs, identities, ideologies, and interpretations of events and sequences of events at home or abroad-shape the way that political actors perceive their interests, formulate their strategies, and justify their decisions and are thus crucial to explaining when, why, and how institutional designers choose to empower courts.

Keywords: judicial empowerment; Spain; Chile; judicial review; institutional design; constitutional courts

Once upon a time, not so long ago, courts with constitutional review powers were relatively rare in the world. Moreover, even if they existed on paper, they were often designed in a way that left them without any significant independence from the other branches of the state. Today, the situation has changed dramatically. Around the globe, parliamentary sovereignty is in decline and constitutional courts with broad powers have become commonplace (Scheppele 2000; Stone Sweet 2000; Ginsburg 2003; Hirschl 2004). Although not all such courts are equally assertive in the use of their formal powers, in many places, courts have come to play an unprecedented role in the political process (Tate and Vallinder 1995; Seider, Schjolden, and Angeli 2005; Hirschl 2008).

In recent years, works analyzing the origins of this phenomenon have thus proliferated. Some have claimed that the trend reflects a growing social demand for rights protection and limits on government (Dworkin 1990; Shapiro 1996). Others have interpreted it as a logical solution to systemic problems, such as conflicts between branches or levels of government (Lijphart and Waisman 1996; Guarnieri and Pederzoli 2002) or commitment and collective action challenges (North and Weingast 1989; Weingast 1997). But perhaps the most influential works argue that the empowerment of courts is best understood as a calculated move by elites in charge of institutional design to secure their interests through countermajoritarian means (Magalhães 1999; Ginsburg 2003, 2008; Hirschl 2004; Finkel 2008). These latter arguments, which this project refers to as "rational-strategic" theories, are based on the assumption that politicians, the suppliers of institutional change, would never create a potential check on their power unless it were in their personal or partisan self-interest to do so. Hence, though differing in the details, they contend that the deliberate strengthening of the judicial role happens when politicians experience or anticipate challenges to their direct control of policy making, and therefore perceive benefits to entrenching their policy preferences in constitutional documents and delegating decision making on these matters to independent courts, who will protect their interests against attack by future electoral majorities.

Rational-strategic works offer a welcome corrective to some of the overly functionalist arguments of the past, effectively bringing agency - and hence politics - back in to the analysis of judicial empowerment. Yet while interests and strategies are indubitably central to explaining institutional change, this does not mean that essentially the same narrowly instrumental set of interests is at work in all or even most cases of judicial role expansion, as rational-strategic theorists claim or imply. Indeed, in this article, I argue that judicial empowerment can be accurately explained, and potentially predicted, only through reference to the historical and ideational context in which institutional designers operate. Historical and ideational factors - that is, shared experiences, beliefs, identities, ideologies, and interpretations of events and sequences of events at home or abroad-shape the way that political actors perceive their interests, formulate their strategies, and justify their decisions, and are thus crucial to explaining when, why, and how institutional designers choose to empower courts. …

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