FROM COMPARATIVE JUDICIAL POLITICS TO
COMPARATIVE LAW AND POLITICS
Lisa Hilbink, University of Minnesota. Email:
hilbink [at] umn.edu.
pp.1098-1102
This review was part of an LPBR
special edition on the Oxford Handbook of Political Science, LPBR
18(12), December 2008.
Among the many merits of the new OXFORD HANDBOOK OF LAW AND POLITICS (OHLP)
is its inclusion of two full sections (ten chapters totaling 200 pages) on
law and politics issues from comparative and international/supranational
perspectives. Had the volume been published a decade earlier, this would
certainly not have been the case. Indeed, many of the authors of these
chapters were, like myself, still graduate students ten years ago, toiling
to find a place in a subfield long dominated by scholars of a single court
in a single country – namely the U.S. Supreme Court. Both the quantity and
the quality of their contributions to this handbook are a testament to our
shared success in opening the subfield to new cases and new questions. The
study of law and courts outside the U.S. has come a long way in a short
time.
In striving to establish our legitimacy as comparativists interloping in a
traditionally Americanist domain, however, I fear we are, perhaps
unwittingly, reproducing some of the existing pathologies of the law and
courts subfield. Reading the chapters in the “Comparative Judicial Politics”
section of the OHLP, I was struck by three things: first, the almost
exclusive focus on high courts and constitutional decision-making in the
countries of study; second, a tendency to discount the relevance of factors
in any way internal to law or legal institutions; and third, a limited and
limiting view of politics as narrowly instrumental.
The focus on high courts and constitutional decision making is easy enough
to understand and arguably the least problematic of these three issues. If
Americanists who study law and courts at levels other than SCOTUS have faced
an uphill battle for professional attention and recognition, imagine the
position that comparativists find themselves in, having to demonstrate that
the phenomena they want to study are empirically significant and
theoretically relevant, even if they aren’t likely to make even the back
pages of U.S. newspapers or be the subject of major debate on U.S.-based
blogs and list-servs. To be sure, the proliferation of high courts with
constitutional review powers (Ginsburg, OHLP) and the increased involvement
of old and new courts in “mega-politics” (Hirschl, OHLP) are phenomena that
cry out for explanation and are thus natural targets for comparative
analysis. However, if (at least part of) the goal is to understand when,
where, how, and why law and legal institutions matter, or come to matter,
for governance, – that is, for the way that governments provide (or fail to
provide) basic public goods, such as physical and economic security or
social services, – then a narrow focus on the highest court, and often on a
subset of decisions of that court, is definitely not sufficient. Not only do
we need more studies of lower court decision-making [*1099] in different
countries (and different provinces), but we also need more research into the
role of police, prosecutors, public defenders, ombudsmen offices,
comptrollers, and other agencies charged with upholding the law and/or
monitoring powerful actors, as well as the interactions between them.
Brinks’s (2008) book on the judicial response to police killings in five
different Latin American cities offers an excellent model for such work.
We could also benefit from far more studies of the
role that actors in civil society, be they inside or outside the legal
profession, play in advancing or undermining the rule of law at any level.
Chavez (OHLP) surveys some of the work that has been done in this vein,
but it is clear that the various propositions in the literature are in
serious need of systematic comparative testing and refining. One
noteworthy effort in this regard is the Halliday, Karpik, and Feeley
(2007) volume, which seeks to illuminate the role that actors in the
“legal complex” (judges, lawyers, and legal academics) play in
constructing or eroding political liberalism. Many of the contributions to
that work, covering sixteen countries on four continents, discuss high
courts, but treat them as only one piece of a larger picture in struggles
for core rights of citizenship, a moderate state, and associational
autonomy. The analyses do not all point in the same causal direction, but
they offer a rich trove of empirical material and a number of propositions
that might be further tested in future research.
Perhaps turning the focus away from high courts in this way would help
mitigate the second tendency in the literature on comparative law and
courts, evident in several of the chapters of the OHLP, to caricature and
dismiss arguments that highlight factors internal to law or legal
institutions. I can think of no political scientist specializing in
judicial behavior outside the U.S. (or inside, for that matter) who
accepts the legal formalist myth that judges decide cases uniquely or
mechanically on the basis of legal text or other legal rules. But even if
we all proceed on a legal realist/political jurisprudential premise, we
need not conclude that judicial behavior is determined by “conditions
outside of the courts and the law” (Chavez, OHLP: 75). To paraphrase
Martin Shapiro in the closing chapter of the OHLP, law, by definition,
puts limits on discretional decision making. Where political decisions are
purely discretional, as in autocratic regimes, there is really nothing for
law and politics scholar to study. And while democratic legislators may
have relatively few constraints on their discretion, the discretion of
administrators and judges (particularly in lower courts) is often highly
constrained, and therefore, “the law and politics scholar working on such
secondary rulemaking…is warned to pay as much or more attention to the
constraining rules as to the discretion” (Shapiro, OHLP: 773).
To this I would add that the “constraining rules” operating on judicial
actors may not be directly legible off the legal text. Indeed, there may
be formal rules and informal norms internal and particular to judicial
institutions that shape and constrain judicial conduct by providing, as
historical institutionalists put it, “the content of the identities,
preferences, and interests that actors [can] embrace and [*1100] express”
(Smith OHLP: 47-8). In my work on Chile, I demonstrate that there was a
clear pattern of judicial behavior in civil and political rights cases
across time (despite administration and regime change), and argue that
this persistence is best explained by institutional factors that served
both to constitute and constrain judicial preferences (Hilbink 2007). This
is not a crude argument about judges’ “political culture,” as Chavez
(OHLP: 70-1) portrays it, but rather an analysis that takes seriously the
ways that the institutional setting can (and in the Chilean case, does)
affect the way judges understand what they want to do, what they think
they ought to do, and what they believe they can do (Gibson 1986: 150). As
Baum argues, both consciously and subconsciously, judges are motivated by
a desire for respect and approval from their reference groups or audiences
(2006: 43–48), and among the audiences that will be most salient for
judges are professional colleagues and superiors (2006: 171). While
calculations about the way the other branches will respond to judicial
decisions (the “separation of powers” model) are no doubt at work to
varying degrees in different courts and at different times, even high
court judges “face a wide array of incentives based on personal
preference, professional ethos, and the institutional environment in which
they operate” (Halberstam OHLP: 151). Scholars of comparative judicial
politics should thus take care not to mischaracterize or write off
analyses that give explanatory weight to legal and judicial (that is,
“internal” (Chavez OHLP: 75)) variables. Not only is it incorrect to
equate such analyses with traditional legal formalism or crude cultural
arguments, but rejecting them may prevent us from identifying when and how
legal rules and norms actually matter, or when they matter more or less
and why.
This brings me to my third and final observation, which is that there
appears to be an unfortunate tendency among scholars of comparative law
and courts to define and portray the “political” in narrow instrumental
(or “realist”) terms. Because of the strong influence of rational choice
approaches in the discipline, much theorizing on judicial empowerment and
judicial behavior has proceeded on several core assumptions. The first is
that interests are the driving force behind political decision making, and
that interests are independent of ideas, which are simply tools that
political actors invoke, ignore, or attack in order to advance their
pre-existing interests. The second is that the primary interest of
political actors, be they dressed in suits, robes, or uniforms, is the
maximization of their personal, partisan, or institutional power. And the
third is that outcomes, such as the establishment or maintenance of
judicial independence (Chavez OHLP; Vanberg OHLP), or the expansion of the
judicial role (Ginsbug OHLP; Hirschl OHLP) are the product of coldly
rational and strategic calculations to advance this primary interest.
To be sure, arguments based on these assumptions are a welcome corrective
to overly functionalist or naively idealistic accounts that leave power
considerations out of the picture. I do not wish to detract from or
dismiss the very valuable contributions to the literature that have been
based on these assumptions. However, in their zeal to “bring the politics
back in,” comparative judicial theorists have tended to go too far in the
[*1101] opposite direction, reducing everything to “exogenously specified”
(Ginsburg OHLP: 91) raw power calculations. Identities, norms, and social
aspirations and aversions (Scheppele 2003) have been treated as (at best)
interesting but politically, and hence causally, irrelevant.
Yet an increasing number of “microstudies” (Ginsburg OHLP: 93) reveal that
the dichotomy between ideas and interests in judicial politics is a false
one, and that arguments based on rational-strategic/realist assumptions
are unable to account for the timing, nature, and outcome of the
establishment and exercise of judicial independence and the rule of law.
The aforementioned volume by Halliday, Karpik, Feeley (2007) contains
several chapters, including one by Ginsburg, that highlight the importance
of ideas, and the mechanisms through which ideas are transmitted and
implemented in fights for political liberalism. And in a collective work
in progress, Patricia Woods and I are bringing together analyses of
judicial empowerment in seven countries that highlight the ways in which
ideational factors, social processes, and historical trajectories drive
the way that political actors, in and out of the courts, perceive their
interests and construct their strategies, and, thereby, shape the timing
and nature of outcomes.
Ultimately, what we should strive for in comparative judicial studies is
to transcend the old, stale binary of law qua naïve idealism and politics
qua pure instrumentalism and get on with analyses that treat both law and
politics more generously. We should allow for the possibility (but never
assume) that law limits the discretion of decision makers, and never
assume (even if the possibility is much greater) that discretionary
decision makers seek, whenever possible, to avoid or subvert law. In her
chapter in the OHLP on the European Court of Justice (ECJ), Karen Alter
describes how a debate previously polarized between a “heroic” legalist
narrative about the ECJ role in European integration and a more hard-nosed
political account casting the ECJ as a mere “agent” of individual states
has given way to a “view that both legal and political considerations
influence ECJ jurisprudence.” The convergence around what she calls a
“comparative politics narrative,” which treats ECJ decision making as only
one step in a more complex chain, represents in her view “the maturation
of European law scholarship” (Alter OHLP: 217). It is my hope that work on
comparative law and courts can and will undergo a similar maturation, the
hallmark of which would be a recognition that while there may be politics
in all decisions interpreting and applying law, this does not necessarily
render law irrelevant, and, moreover, that while all law involves
politics, only certain kinds of politics involve law. Pursuing research
that seeks to identify the conditions under which law matters in public
decision making (by judges or other actors), how it matters, and when it
ceases to matter across time and space would allow us to claim the title
of true comparative “law and politics” scholars.
REFERENCES:
Baum, Lawrence. 2006. JUDGES
AND THEIR AUDIENCES: A PERSPECTIVE ON JUDICIAL BEHAVIOR. Princeton:
Princeton University Press. [*1102]
Brinks, Daniel. 2008. THE
JUDICIAL RESPONSE TO POLICE KILLINGS IN LATIN AMERICA: INEQUALITY AND
THE RULE OF LAW. New York: Cambridge University Press.
Gibson, James L. 1986. “The Social Science of Judicial Politics.” In
POLITICAL SCIENCE: THE SCIENCE OF POLITICS. Herbert F. Weisberg (ed). New
York: Agathon Press.
Halliday, Terence, Lucien Karpik, and Malcolm Feeley (eds). 2007. FIGHTING
FOR POLITICAL FREEDOM: COMPARATIVE STUDIES OF THE LEGAL COMPLEX AND
POLITICAL CHANGE. Oxford: Hart Publishing.
Hilbink, Lisa. 2007. JUDGES
BEYOND POLITICS IN DEMOCRACY AND DICTATORSHIP: LESSONS FROM CHILE.
New York: Cambridge University Press.
Scheppele, Kim Lane. 2003. “Aspirational and Aversive Constitutionalism:
The Case for Studying Cross-constitutional Influence through Negative
Models.” I.CON 1(2): 296-324.
© Copyright 2008 by the author, Lisa Hilbink.