From Democracy to Juristocracy

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

The difference between calling something legal and calling it "permitted to go unpunished" has parallels in a number of the other particularized case accounts. For example, the Italian Constitutional Court, in coming to terms with the ECJ assertion that even the Italian constitution must give way to the ECJ's interpretation of the demands of the European Economic Community (EEC) Treaty and EEC law, produced another ruling that is likely to strike American readers as a legal fiction: In Italy's constitution, "judicial review" of legislation for constitutionality is reserved to the Italian Constitutional Court, but since the ECJ ruled that national laws in conflict with Eurolaw must be treated by all judges as invalid, the Constitutional Court simply ordered ordinary judges in Italy to "ignore" any law that conflicts with EEC law (rather than declare it void, which declaration would usurp its own prerogatives!) (Sweet 166-68 and note 11).

The limitations of space in this essay do not permit doing justice to the many intriguing case stories included in this book. They alone would warrant the cost of purchase, because they shed so much helpful light on the actual judicial-legislative interaction that lies at the heart of the "judicialization of politics" in Europe.

Ran Hirschl's Explanation .

Ran Hirschl's book expands our focus beyond Europe, offering the salutary reminder that the move toward "juristocracy" is a truly global trend. Hirschl looks at the supreme courts of Israel, New Zealand, the Republic of South Africa, and Canada, and does so with more detail and greater depth than either of the other two volumes. It is a truly impressive piece of research, comprehensive in coverage of the relevant scholarship, cogently argued and elegantly presented.

Like Sweet, Hirschl is promoting a thesis. He first wants to understand what political forces moved countries to amend constitutions to empower judges to throw out democratically enacted laws where those countries were not caught up in other fundamental transitions-such as the need to develop a postcolonial, or post-dictatorship, or post-Communist constitution. Second, he wants to know what sorts of policy consequences ensue from the adoption of judicial review. He believes he has figured out the answers and he pushes them hard, and usually convincingly.

His answer to the first query is that in countries where hegemonic elites observe the rising power of competing groups, groups who do not share their fundamental values and worldview, the hegemonic elites seek to entrench their fundamental values above the vagaries of majority rule. They make this move before the majority supportive of their leadership gives way to what might be called the "rising" majority; in effect, they are entrenching values supported by the majority before it becomes too late to garner majority support for these values.

This thesis differs from, although it has parallels with, the "thin political" rational choice explanation that one often sees: namely, political parties or groups that have been dominant in dictatorial (or other) situations willingly entrench judicial power to protect themselves from later retaliation from their enemies, and they do so in alliance with groups that fear regression back to dictatorship. Their hope is that neutral judges committed to rule-of-law rights will give them a fairer shake than their unchecked political enemies would.12 Hirschl does not disagree with these accounts so much as he finds them incomplete. They cannot explain why legislative forces in countries such as England or Canada that get along for centuries without judicial review and with liberal rights generally honored would suddenly adopt entrenched bills of rights to be enforced against legislatures by courts. Moreover, they fail to take account of cleavages in other domains than electoral conflict, such as cultural and social cleavages. Finally, they fail to pay adequate attention to the political influence wielded by judicial elites and economic elites in bringing about transitions to juristocracy (Ch. 2).