From Democracy to Juristocracy

Law & Society Review, Sep 2004 by Goldstein, Leslie Friedman

From Democracy to Juristocracy Carlo Guarneri and Patrizia Pederzoli, From Democracy to Juristocracy? The Power of Judges: A Comparative Study of Courts and Democracy, C. A. Thomas, English editor. Oxford: Oxford University Press, 2002. 235 pages. $75.00 cloth.

Alec Stone Sweet, Governing with Judges: Constitutional Politics in Europe. Oxford: Oxford University Press, 2000. 232 pages. $75.00 cloth; $27.50 paper.

Ran Hirschl, Towards Juristocracy: The Origins and Consequences of the New Constitutionalism. Cambridge: Harvard University Press, 2004. 294 pages. $49.95 cloth.

The phrase the power of judges turns up 103 recent titles on the Borders/Amazon search list, many of which, like the ones under review here, have a comparative focus-comparative at least in the casual sense, where comparative includes single country studies of foreign judiciaries. Each of the books under review, by contrast, takes a systematically comparative look at several countries, and in that sense this selection marks an important breakthrough for political science.1 But the more general point is that the sharp recent rise in "the power of judges" the world over has attracted considerable notice. Titles such as The Global Expansion of Judicial Power (Tate & Vallinder 1995) and terms such as juristocracy (Hirschl) and courtocracy (Scheppele 2002) proliferate precisely because that power has spread around the globe, in a development that seriously began only after World War 11 and that has taken on real momentum in the last thirty-five years.

All three of the books here under review not only offer comparative descriptions of this development in several countries, but also make important contributions toward developing an explanatory theory about the causes and consequences of this massive recent growth in judicial power the world over. However, each emphasizes a different aspect of the picture.

Alec Stone Sweet's Governing with Judges looks at the power to review laws for constitutionality in the post-World War II courts of France, Germany, Italy, Spain, and the European Union (EU) and argues that this power has shown a tendency to both spread beyond the Constitutional Court to which it is formally restricted, down into the "ordinary" courts, and permeate partisan conflicts within the legislature. He believes this "judicialization of politics" is endemic in the dynamic of judging itself, and that both the institution of a priori judicial review and the presence of lengthy bills of rights have accelerated this development.

Patrizia Pederzoli and Carlo Guarneri compare the exercise of judicial review in the United States, England, Wales, Germany, Portugal, Italy, France, and Spain. They are particularly intrigued by the recent trend in some of the countries for major political controversies to end up in courts, decided by judges, rather than by elected legislators, and they explain this by looking at the combination of variations in the legislative partisan balance and variations in political institutions-particularly those for recruiting and promoting judges and those that structure the degree of separation between prosecuting and judging.

Ran Hirschl's Towards Juristocracy focuses on four former British colonies-Canada, Israel, the Republic of South Africa, and New Zealand-and argues that the delegating of constitutional review power to judges emerged out of the perception by dominant groups that their hegemony was threatened by the rise in power of previously subordinated groups, and that in fact this recent constitutionalization of rights has had largely negative consequences for marginalized, subordinated groups.

This review essay concentrates on these three books but, where appropriate, draws on other works in the large and fast-growing literature on this subject. It concludes with some independent reflections on the kind of political environment likely to produce the most luxuriant growth in judicial power.

Worldwide Increase in Judicial Power

Before World War I, and again as of 1942, only the United States and Norway had a court with power to throw out laws adopted by the national legislature (Guarneri & Pederzoli 135).2 Today, more than eighty countries do (Hirschl 1). This rapidity of the transformation of constitutions around the globe is nothing short of remarkable.

In both the United States (1803) and Norway (1866), this power came not explicitly from the written constitution but from court precedent (Smith 2000; Ryssdal 1981). The Weimar Republic, Austria, Spain, and-in Alec Stone Sweet's phrase-"some states in Eastern Europe[,] had possessed constitutional courts of varying effectiveness in the interwar years," which were ended by the wartime constitutions (Stone Sweet 31 [hereafter Sweet]; Guarneri & Pederzoli 135). In 1943, Iceland joined this tiny judicial review club, making it a threesome (Smith 2000).

During the 1940s and 1950s, the postwar wave of (in Hirschl's term) "reconstruction" constitutions that instituted judicial review included Austria, Italy, Germany, France, and Japan (Guarneri & Pederzoli 135; Hirschl 7; Sweet 31). The decolonization of Africa and Asia in the 1950s and 1960s brought judicial review in several "independence" constitutions of Africa and Asia (Hirschl 7). A wave of democratization in southern Europe brought judicial review to Spain, Portugal, and Greece in the 1970s, and then, in the late 1980s and early 1990s, to new constitutions in the Republic of South Africa and in several Latin American countries. Yet another wave struck in the 1990s, as the former Soviet, Soviet bloc, and Yugoslavian republics adopted liberal democratic constitutions that included judicial review. As part of no specifically classifiable trend, several additional countries adopted new constitutions or new constitutional guarantees of fundamental rights to be enforced via judicial review between 1979 and 1994: Sweden, 1979; Egypt, 1980; Canada, 1982; Belgium, 1985; New Zealand, 1990; Mexico, 1994; and Israel, 1992-1995 (Hirschl 8; Sweet 31; Guarneri & Pederzoli 136).3