Vol. 14 No. 7 (July 2004), pp.552-557

TOWARDS JURISTOCRACY: THE ORIGINS AND CONSEQUENCES OF THE NEW CONSTITUTIONALISM, by Ran Hirschl. Cambridge: Harvard University Press, 2004. 294pp. Cloth $49.95.  ISBN: 0-674-01264-X.

Reviewed by Mark Rush, Department of Politics, Washington and Lee University.  Email: RushM@wlu.edu

Ran Hirschl has written a thought-provoking assessment of the global shift towards judicial empowerment in TOWARDS JURISTOCRACY:  THE ORIGINS AND CONSEQUENCES OF THE NEW CONSTITUTIONALISM.  Hirschl bases his analysis on three questions:

1. “What are the political origins of the recent constitutionalism trend?”  That is, is the trend really a manifestation of an impulse towards political reform, or is it the by-product of ongoing political struggles?

2. “What is the real impact of the constitutionalization of rights . . . on national high courts’ interpretive attitudes toward progressive notions of distributive justice?”

3. What are the political consequences of judicial empowerment?

His conclusions and analysis are bound to elicit praise and criticism from across the spectrum of academic and political thought.

In the Introduction, Hirschl asserts that truly comparative constitutional analysis must rise above two debilitating constraints.  First, it must become less parochial.  Too often, “comparative analysis” is really comprised of isolated case studies of different nations.  Second, it must focus on substantive political outcomes instead of being preoccupied with normative, or process-oriented, theories of judicial behavior.  Thus, his analysis is driven in part by the desire to determine whether the judicialization of politics has improved the quality of democracy in the societies in which it has taken place.

He says that recent constitutional transitions in Canada, South Africa, New Zealand, and Israel, are best understood in terms of the political self-interest of the governing forces that supported the constitutional reform movement.  He says that “voluntary self-limitation through the transfer of policy-making authority from majoritarian decisionmaking arenas to the courts seems, prima facie, to run counter to the interests of power-holders in legislatures and executives” (p.11).  But, he argues that, in fact, such transfers take place (and make sense) only if they can be viewed as a means of furthering the self-interest of the actors who are apparently giving up their power. 

Hirschl assesses these recent enhancements of judicial power in terms of his theory of “hegemonic self-preservation” (p.11).  That is, he says that the judicialization of politics must be understood in terms of “concrete [*553] social, political and economic struggles that shape a given political system.”  Therefore, shifts in power away from the legislature are frequently manifestations of a ruling majority’s perception that it is about to lose power (or that its demise is imminent).  As a result, by transferring power to the courts via a process of constitutional reform that embodies the values of the prevailing majority, those who are losing power can place constitutional constraints on those who will inevitably replace them.  In each country he studies, the inevitability of this demise is manifested by trends in migration or demographics, pressures brought about by supranational treaties (the establishment of the EU or NAFTA), or international organizations (the UN, perhaps a Carter Center endorsement of elections), or simply long-term secular political realignment.

He demonstrates that the terms on which constitutional reform and judicial empowerment are based are conditioned by and embody key values that the prevailing political majority holds.  In Israel, for example, the new constitution, as well as the opinions of the Supreme Court, manifest the Ashkenazi’s commitment to holding back the rising forces of religious fundamentalism and extremism.  The result, he says is that the Supreme Court now finds itself embroiled in political controversies (which are cloaked in the garb of “constitutional” development) concerning the definition of a Jewish, democratic state. 

Similarly, in Canada, he argues that the Charter manifests a Trudeauian commitment to developing a sense of Canadian nationalism that would gradually erode the regional and secessionist sentiments that have festered in that country.  The result has been a series of decisions favoring the rights of minorities (what Morton and Knopff refer to as the “Court Party”) and the federal government at the expense of the provinces.

Hirschl’s analysis is convincing—almost.  One could write many pages assessing and discussing his argument, most of which would boil down to a simple response to the tune of “Yes, but. . .”  While Hirschl acknowledges that his conclusions are tentative, something just does not seem quite right.  This reflects less on the quality of his analysis than it does on the uncertainty of its implications.  If he is right, what should we do?

It is hard to assess the implictions of Hirschl’s analysis for several reasons. First, how do we distinguish a truly egoistic political agenda cloaked in constitutional reform, from a bona fide attempt to reform and improve a constitutional system?   Hirschl suggests that the partisan backlash against and criticism of newly empowered judiciaries (whose constitutional decisions invariably tend to sustain the political status quo and come at the expense of either the existing political opposition or nascent minorities) makes clear the obvious partisan influences in the new constitutional structures.  But, does partisan opposition to constitutional reform indicate that the reforms are, indeed, partisan themselves? 

The Supreme Court of Israel has interpreted new constitutional provisions with an eye towards preserving some of the secular aspects of the state.  This has naturally engendered opposition from [*554] the more fundamentalist and sectarian ends of the political spectrum.  But, this opposition does not, in itself, render suspect the constitutional commitment to separation of church and state.  Maybe secularism is a genuinely progressive and wise constitutional course.  This is not to question Hirschl’s analysis.  Instead, I raise this and the following questions to demonstrate that Hirschl’s interpretation of events invite rebuttal.

Second, echoing earlier studies of the limits of judicial capacity to bring about social change (Rosenberg 1991) or to resolve complex questions of public policy (Horowitz 1977), Hirschl notes that in all four nations, the absence any real change in economic equality or social justice (he discusses this extensively in Chapters 5 and 6) demonstrates the folly of hoping that courts will be able to accomplish what the more proactive and powerful branches of the government either cannot or will not do.

Hirschl demonstrates, for example, that when a newly empowered judiciary deviates from the “constitutional agenda” of the majority that empowered it, the government has been able to “clip the court’s wings” (pp.200-206) and keep it faithful to the majority’s plan.  This lends credence to his claim that “seemingly humanitarian constitutional reforms often mask an essentially self-serving agenda [of the governing majority]” (p.99).

It is not clear, however, how the existence of such political checks on the courts affects Hirschl’s theory.  Insofar as override provisions (such as S. 33 of the Canadian Charter) allow a governing majority (or, in the case of Canada, a province) to buffer the impact of a judicial decision, it may seem as though Hirschl’s vision is entirely accurate—no so-called constitutional “reform” is going to occur without the consent (and furtherance of the self-interest) of a governing majority.  On the other hand, the fact that a judiciary would so quickly deviate from the majority’s agenda (all of Hirschl’s studies cover the last 20 years or so) indicates either that 1) courts can and do take on agendas of their own, even though the legislature may retain some control via the selection process, or 2) that the nascent political opposition, minority groups or, simply, disparate interest groups quickly learn how to use litigation to shape political debate.

This is not to question Hirschl’s observations—it is, instead, to wonder whether they have a shelf-life.  Even if we assume that constitutional reform is conditioned by the self-interest of the waning political majority, constitutional politics is by no means static.  It is, instead, a repeated game.  This is, perhaps, best demonstrated by the arduous, but ultimately successful litigation strategy of the NAACP that led to the U.S. Supreme Court’s call for school desegregation in BROWN v. BOARD OF EDUCATION and is reflected, perhaps, in the incremental success of the contemporary homosexual rights litigation in Canada.

As a result, while a constitution may place parameters on the political game, it is unlikely to preserve the majority’s agenda intact for long because 1) interest groups that lose in the legislature will return to court, and 2) if Hirschl is correct that constitutional reform occurs because a majority foresees its demise, [*555] then sooner or later, a new majority will arise whose judicial appointees will reflect a different political agenda and will interpret the constitution differently.  A third question begged by Hirschl’s analysis concerns the impact on the quality of democratic deliberation in nations that judicialize their politics.  Hirschl laments the empowerment of judiciaries for several reasons. 

He suggests that ruling elites may welcome the change to hand politically divisive issues to the judiciary.  A skeptical view of political elites would suggest that judicial empowerment allows a legislature to forsake its deliberative and governing responsibilities by handing contentious issues over to a branch of government that is not electorally accountable.  Under these circumstances, if the court rules in favor with the majority’s agenda, elected officials can say that the court tied their hands and that they must defer to its constitutional authority.  Should the court rebuke the government, legislators can simply campaign against it.  Either way, the legislature is buffered against the political consequences of difficult decisionmaking because, Hirschl says, the judicialization of politics “represents a large-scale abrogation of political responsibility if not outright abdication of power, by legislatures whose primary task is to make political decisions for which they are accountable to their constituents. . . these legislatures take advantage of (or worse, actively support the establishment and maintenance of) a strong judiciary to avoid difficult, unwanted or unpopular outcomes (p.187).

On the other hand, Hirschl’s analysis suggests a contrary conclusion.  If he sees judicialization as the cloaking of a partisan agenda in constitutional garb, it would seem that majoritarian resolution of intractable political questions (such as “Who is a Jew?” and “What are the secession rights of Quebec?” (p.186)) might actually be better left to the courts despite the limitations of the judicial process.

If the courts do retain a high level of popular support as alternatives to what is perceived to be an unnecessarily partisan and interest-group driven legislative process, then asking them to play what can best be described as H. L. A. Hart’s referee function may actually work well.  Obviously, contentious conflicts will not be resolved by judicial fiat.  But, if such conflicts can be managed less contentiously in the courts (where they are likely to end up anyway if interest groups play the litigation game), then the judicial “debasement” of the process of democratic deliberation may not be such a bad thing, if it results in a more peacefully “managed” process in which the courts referee the political game.  In fact, it could be argued that the trend towards judicialization simply expands the scope of the deliberative dialogue to include the courts.

One question that Hirschl raises, but does not answer arises early in his discussion of Ronald Dworkin and how he inspired Hirschl’s inquiry.  At the beginning, Hirschl says that there is no alternative but to use a result-driven rather than a procedural-driven standard for assessing whether judicial review helps or hinders democracy. Citing Dworkin, Hirschl notes, “The best institutional structure is the one best [*556] calculated to produce the best answers to the essentially moral question of what the democratic conditions actually are, and to secure stable compliance with those conditions” (p.3).  Hirschl then quotes Dworkin:

Once we have settled on a given normative meaning of the term “social justice”. . . the question of democracy versus constitutionalism in pursuit of social justice becomes an empirical question: What type of fundamental governing principle—parliamentary sovereignty, constitutional supremacy, welfare state, neoliberal macroeconomics, or any other overarching principle—has produced or is likely to produce practical outcomes closest to the meaning of social justice? (p.3)

This begs questions (which Hirschl does not answer) concerning the scope and definition of “democratic conditions.”

In the end, Hirschl expands his lament about the debasement and debilitation of deliberative democracy that occurs as a result of reliance on and empowerment of the courts to include what he perceives as a global trend towards government by judiciary and bureaucracy. But, it is hard to tell whether this trend is a good or bad thing.  If it represents a power grab or gaming of the political system by waning political elites, this definitely is not a constructive development and essentially is nothing more than a gerrymandering or “lockup” of the political system (see Issacharoff and Pildes 1998).  On the other hand, if it represents a phase of political enlightenment in which courts can be used to defuse political crises, then this is a good thing.

In closing, TOWARDS JURISTOCRACY will cause the reader to stop, go back, review different parts of Hirschl’s argument and wonder whether he has set forth a pathbreaking work or has simply restated the obvious maxim that politics is driven by self-interest.  However, a well-reasoned statement of the obvious can be an invaluable contribution to our understanding when it is brought to bear against what Hirschl describes as more “doctrinal” and normative theories of (in this case) constitutional development and political reform.  Thus, an economist or student of rational choice might find little surprising in Hirschl’s conclusions. But, it is clear that in an age when political and constitutional reform as well as the judicialization of politics are frequently hailed as progressive steps towards equality, distributive justice and control over excessively partisan governments, Hirschl demonstrates that there are limits to what courts can and will deliver on behalf of the goals espoused by advocates of political and constitutional reform.

While I have raised several points of contention in this review, nothing I have said should be regarded as less than a ringing endorsement of Hirschl’s work.  Students of the politics in the countries he studies may quibble with his interpretations of their recent constitutional history.  But, there is no question that his point of view makes sense, is forcefully argued and that his analysis and conclusions are formidable.   TOWARDS JURISTOCRACY is an impressive book that will certainly engender more debate than it resolves.  For this, Hirschl should be commended for a work that will certainly shape [*557] political science analysis of the courts and constitutionalism for some time.

REFERENCES:

Dworkin, Ronald. 1996. FREEDOM’S LAW. Cambridge: Harvard University Press.

Hart, H. L. A. 1961.  THE CONCEPT OF LAW. Oxford : Clarendon Press.

Horowitz, Donald. L. 1977.  THE COURTS AND SOCIAL POLICY. Washington DC, Brookings.

Issacharoff, Samuel and Richard Pildes.  1998. “Politics As Markets: Partisan Lockups of the Democratic Process.”  50 STANFORD LAW REVIEW 643-718.

Morton, F. L. and Rainer Knopff.  2000. THE CHARTER REVOLUTION AND THE COURT PARTY.  Peterborough, Ontario: Broadview Press.

Rosenberg, Gerald N. 1991. THE HOLLOW HOPE.  Chicago: The University of Chicago Press.

CASE REFERENCES:

BROWN v. BOARD OF EDUCATION, 347 US 483 (1954).

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Copyright 2004 by the author, Mark Rush.