The Realist Turn in Comparative Constitutional Politics

By Hirschl, Ran | Political Research Quarterly, December 2009 | Go to article overview

The Realist Turn in Comparative Constitutional Politics


Hirschl, Ran, Political Research Quarterly


The past few decades have seen sweeping global convergence to democracy, real or professed, alongside convergence to constitutional supremacy and a corresponding increase in the political salience of constitutional courts worldwide. Elsewhere, I have termed this great transformation a transition to "juristocracy" (Hirschl 2004). This large-scale convergence toward constitutional supremacy is typically portrayed by constitutional theorists and jurist as stemming from modern democracies' post-World War II acceptance of and commitment to the notion that democracy means more than mere adherence to the principle of majority rule. Not least, we are often reminded, it reflects these polities' genuine precommitment to entrenched, selfbinding protection of minorities and individual liberties in an attempt to protect vulnerable groups and individuals vis-à-vis the potential tyranny of governments and political majorities. Judges who are removed from the pressures of partisan politics are responsible for enforcing these rights and limitations. Because constitutionalization and the corresponding establishment of constitutional review are widely perceived as power-diffusing measures, their adoption is often portrayed as a reflection of progressive social or political change, or simply as the result of societies' or politicians' devotion to a "thick" notion of democracy and their uncritical celebration of human rights.

The Realist Approach to Constitutional Politics

Against this canonical, politics-light backdrop, political scientists have attempted to provide a richer explanatory account of the proliferation and role of constitutional law and courts as a form of politics by other means. As the seminal works of Robert McCloskey, Robert Dahl, and Martin Shapiro (among others) established, constitutional courts and their jurisprudence are integral elements of a larger political setting. Their establishment and behavior cannot be understood in isolation from their surrounding political context. Until the early 2000s, the spread of federalism and the concept of the separation of powers (a functionalist, systemic needs-based explanation) and the prevalence of rights ideology and discourse (an ideational explanation) were considered the main extrajudicial driving forces behind the spread of constitutional review (Ginsburg 2008). Taking the notion of courts as political institutions even further, recent political science scholarship, quantitative and qualitative, suggests that political deference to the judiciary and the consequent judicialization of megapolitics - indeed, the profound expansion of judicial power more generally - are an important manifestation of concrete social, political, and economic struggles that shape a given political system. More specifically, it attempts to go beyond the traditional focus on constitutionalization as emanating from broad demand-side pressures to identify specific supply-side factors that are conducive to the establishment and maintenance of constitutional review, most notably the changing interests and incentives of pertinent political stakeholders.

At the very least, the transfer to the courts of contested political "hot potatoes" offers a convenient retreat for politicians who are unwilling or unable to settle public disputes in the political sphere. Delegation also helps politicians avoid difficult or "no-win" decisions and/or the collapse of deadlocked or fragile governing coalitions (Graber 1993). Alternatively, when politicians are obstructed from fully implementing their own policy agendas, they may favor the active exercise of constitutional review by a sympathetic judiciary in order to overcome those obstructions (Whittington 2005). Judicial empowerment may likewise reflect the competitiveness of a polity's electoral market or governing politicians' time horizons. So, for example, when a ruling party expects to win elections repeatedly, the likelihood of an independent and powerful judiciary is low (Ramseyer 1994). …

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