Vol. 14 No. 1 (January 2004)

COURTS AND POLITICAL INSTITUTIONS: A COMPARATIVE VIEW by Tim Koopmans. Cambridge: Cambridge University Press, 2003. 322 pp. Cloth $70.00. ISBN: 0-521-82662-4. Paper $25.00. ISBN: 0-521-53399-6.

Reviewed by Paul Chen, Department of Political Science, Western Washington University. Email: paul.chen@wwu.edu .

COURTS AND POLITICAL INSTITUTIONS is an excellent addition to the works published over the last decade that provide a comparative analysis of constitutional law and courts, and that seek to understand and explain the growing influence of courts and of judicial-style decision-making in cross-national politics and policy-making (e.g. Jackson and Tushnet 2002; Jacob et al. 1996; Slaughter, Stone Sweet, and Weiler 1998; Tate and Vallinder 1995; Stone Sweet 2000). The book will be of interest to scholars of comparative politics (a field in which courts have traditionally been neglected), comparative constitutional law, comparative judicial systems, human rights law, European courts, and inter-branch relations. Anyone broadly interested in comparative political institutions should read this work.

The opening sentence states that "[t]his book examines the legal relations between political institutions and the courts in some European countries and in the United States" (p.1); but that statement, as is the book's title, is somewhat misleading. What Koopmans analyzes is not ordinary courts like those in Anglo-American legal systems whose primary function is to settle disputes between private litigants. Rather, he does a cross-national comparison of constitutional courts or special tribunals whose function is to review the legality or constitutionality of legislation and of administrative actions-in particular, the CONSEIL CONSTITUTIONNEL (Constitutional Council) and the CONSEIL D'ETAT (Council of State) in France, the BUNDESVERFASSUNGSGERICHT (Constitutional Court) of the Federal German Republic, the British House of Lords (with respect to administrative decisions), and the United States Supreme Court (when exercising its power of judicial review). More accurately, he examines in comparative context the relationship between national institutions that-within an American conception of separation-of-powers-exercise judicial power and those that exercise legislative and executive powers. Such comparison

shows us something about law and legal evolution generally. It allows us to develop ideas about the judicial interpretation of legal and constitutional provisions, about the use of broad and narrow notions and concepts, about the social and cultural factors influencing legal developments, about the relationship between law and politics, and half a dozen other fundamental problems (p.6).

For practical reasons, Koopmans limits his analysis primarily to four countries: the United States, Great Britain, France, and Germany. Throughout the book, however, he illustrates his points with examples from many other countries (e.g. the Netherlands, Belgium, Portugal, Spain, Canada). What these countries have in common is that they are liberal democracies that "share some political and ideological traditions"-namely "democracy, rule of law, human rights protection and open government" (p.7). Incorporated into his discussion are also many cases from the Courts of Justice for the European Communities and the European Court of Human Rights. No doubt Koopmans' experience as both a former professor of constitutional law (Leiden University, the Netherlands) and former judge of the Court of Justice of the European Communities has provided him with extensive knowledge of the judicial practices and doctrines he discusses in rich detail.

Comparing the political systems of these countries, he discovers certain "fundamental" questions, questions whose answers "MUST have been given before the system of public law could begin to operate." One such question concerns the relationship between the judicial and legislative institutions: whether the judiciary can strike down legislation for violating higher law embodied in either a written constitution or some general legal principle. Simply, courts have that authority, or they do not. Another fundamental question concerns the division of power between the legislative and executive-administrative institutions: "Parliament and government either have their own independent powers or work together as interdependent bodies" (p.8). It is significant that the answers to these questions are binary. He is not suggesting that every country's political system implements one or the other response to such questions. Rather, the binary nature of the answers is key to his comparative methodology, which consists of "identifying some of the fundamental questions of public law in the four [national] systems I propose to investigate; trying to find the opposing answers to each of these questions; and locating the four systems on the line between the two polar answers" (p.9).

This linear typology is further based on the concept of the TRIAS POLITICA in the sense taken from the doctrine of the separation-of-powers in American constitutional law-the idea that the legislative, executive, and judicial powers are distinct and separate. For his research, he assumes that each of the four constitutional systems he examines embodies this tripartite division of political power (p.11). He is not concerned with whether the concept is correct as a matter of political theory, but whether it can serve as a heuristic tool for comparative research (p.13).

After his introduction, Koopmans lays down the foundation for his comparative analysis, asserting the primacy of the relationship between the legislative and judicial branches: "Relations between courts and political institutions cannot be properly assessed without a prior definition of the powers of the courts with regard to legislation." The contours of this relationship are ultimately shaped by the responses to the fundamental question concerning judicial review: "Do judges have to respect statutes validly approved by the competent political institutions in all circumstances, or are they, on the contrary, entitled to set aside or disregard statutes which, in their view, violate rules of higher law, for example, those of the constitution" (p.15)? In Chapters Two and Three he describes, respectively, the two ends of the scale on this issue-on one end, the "parliamentary model" of the British constitutional system, premised on the concept of parliamentary sovereignty which obviates judicial review; on the other end, the "constitutional model" of the American political system, in which courts can invalidate legislation under their power of judicial review. In respective chapters, Koopmans briefly discusses the doctrinal and historical development of the two systems, describes their influence on the development of the constitutional systems of other nations, and then discusses how each system works in contemporary political practice.

In Chapter Four Koopmans discusses "the growth of judicial power," giving brief histories of the political and legal development of constitutional courts after WWII, and describing the growing influence on national legal systems of international and human rights laws and of the expanding case law coming out of the European courts in Strasbourg and Luxembourg. In Chapter Five he discusses constitutional and doctrinal limits on, and theoretical objections to, the exercise of judicial review. Chapter Six assesses judicial review of administrative actions. In Chapters Seven and Eight he analyzes, respectively, doctrines pertaining to constitutional structure-separation of powers, federalism, the nature of executive leadership-and judicial protection of individual rights, focusing on freedom of expression, freedom from police intrusion, and church-state relations. In Chapter Nine he discusses a mixed bag of issues: judicial interpretation of statutory provisions, the increasing application of general principles of law (e.g. proportionality, due process, privacy) to case adjudication; access to judicial process; and the role of "higher law" in adjudication. Chapter Ten highlights several global trends in politics, society, and the economy-e.g. the decreasing political participation and sense of community among citizens coupled with an increasing sense of individual autonomy and rights consciousness (p.253), and more frequent recourse to the judicial system via litigation as a form of political protest (p.262)-and how these trends are creating problems of governance for state-centered political systems.

At the end of Chapter Nine Koopmans introduces the concept of "bipolarity":

It is still possible to operate a constitutional system on the basis of separation of powers: it happens in the USA. It is also feasible to make a conceptual distinction between legislative functions on the one hand, government and the administration on the other. Nevertheless, the constitutional practice in most countries shows that these neat distinctions and classifications are gradually being overshadowed by one all-embracing contrast: that between the world of politics and the world of law (246).

In the bipolar model of judicial and legislative-executive relations, the "chief characteristic distinguishing the courts from the political institutions is judicial independence," a topic he finds oddly neglected in the literature. He suggests that the concept of bipolarity not only serves as a useful tool for comparative constitutional research (p.248), but may eventually replace, in constitutional practice, the idea of the separation-of-powers as a "constitutional paradigm" (p.251).

Throughout the book are several recurring ideas or themes: waning public trust in political leadership; increasing influence of human rights protections in judicial decision-making and judicial review; and "judicialization" of politics and policy-making-i.e. the extension of court jurisdiction to matters previously deemed not susceptible to judicial remedy, and the decreasing deference that courts grant to political institutions (p.269)-themes that are considered by similar works (e.g. Stone Sweet 2000, Tate and Vallinder 1995). Regarding judicialization, Koopmans explains why he doubts the trend will continue indefinitely. His reasons include the inherent limitations of judicial remedies in solving social problems, and the eventual overburdening of judicial systems (pp.273-274).

COURTS AND POLITICAL INSTITUTIONS provides an excellent introduction to comparative constitutional law and comparative judicial decision-making. The scope of Koopmans' coverage is extremely broad, yet his comparative analysis is quite systematic, incorporating illustrations primarily from four countries but drawing on examples from many others as well. His analysis is at core institutional, but it is not overly formalistic; he explains how constitutional provisions and judicial doctrines are applied in actual practice. From the start he affirms the need to study legal and constitutional development within its unique institutional context, stating that "it is hard to examine constitutional developments without taking a look at historical, social and political backgrounds" (p.2). He reaffirms this view at the conclusion by stating that "[t]he macrocosm of historical, sociological and cultural developments has contributed to shaping the micro-world of the law in its relationship to politics" (p.284). His richly detailed legal, historical, and political analysis shows the seriousness of this belief. Koopmans goes beyond merely describing how different political and constitutional systems work; he provides an analytical framework for future research, as well as substantive issues for further inquiry.

REFERENCES:

Jacob, Herbert, Erhard Blankenburg, Herbert M. Kritzer, Doris Marie Provine, Joseph Sanders. 1996. COURTS, LAW, AND POLITICS IN COMPARATIVE PERSPECTIVE. New Haven: Yale University Press.

Jackson, Vicki C., and Mark Tushnet. 2002. DEFINING THE FIELD OF COMPARATIVE CONSTITUTIONAL LAW. Westport: Praeger.

Tate, C. Neal, and Torbjorn Vallinder, eds. 1995. THE GLOBAL EXPANSION OF JUDICIAL POWER. New York: New York University Press.

Slaughter, Anne-Marie, Alec Stone Sweet, and Joseph H. Weiler, eds. 1998. THE EUROPEAN COURTS AND NATIONAL COURTS: DOCTRINE AND JURISPRUDENCE. Oxford: Hart Publishing.

Stone, Alec. 1992. THE BIRTH OF JUDICIAL POLITICS IN FRANCE: THE CONSTITUTIONAL COUNCIL IN COMPARATIVE PERSPECTIVE. New York: Oxford University Press.

Stone Sweet, Alec. 2000. GOVERNING WITH JUDGES: CONSTITUTIONAL POLITICS IN EUROPE. Oxford: Oxford University Press.

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Copyright 2004 by the author, Paul Chen