Vol. 9 No. 6 (June 1999) pp. 248-249.

CONSTITUTIONAL DIALOGUES IN COMPARATIVE PERSPECTIVE by Sally J. Kenney, William M. Reisinger, and John C. Reitz (Editors). New York: St. Martin’s Press, 1999. 254 pp.

Reviewed by Carol Ann Traut, Department of Political Science, University of South Dakota.

 

As Martin Shapiro writes in the closing chapter of this book, the study of comparative law inevitably falls back "into a chaos of detailed similarities and differences here and there" (p.193). Nevertheless, given the political changes of the last decade and the rapid pace of governmental reforms, including judicial reforms, this book provides a useful overview of changes occurring in Europe.

The coverage of topics is very broad with three chapters dealing with human rights issues in individual countries (hate speech in Canada and the United States, human rights in France, Germany, Italy, and Spain, and inter-cultural citizenship in Britain), two chapters on eastern Europe including Russia, one chapter on a comparison of judicial changes in western European countries (France, Italy, Germany, and Spain), one chapter on the transnational Court of Justice - European Communities (the ECJ), one chapter on the relationships between abstract judicial review and the political economy in Germany, France, and the United States, and a final chapter on theoretical and historical developments in judicial review. The volume also is valuable for the diversity of techniques used to study judicial developments in Europe. They range from content analysis, focus on individual judge’s characteristics, and cross-country comparisons to "new institutionalist" analysis.

The editors acknowledge that the study of courts historically has been divided into two main camps: the structurally-based camp which focuses on legal history and the political camp which sees courts and justices as political actors with some discretion on how they decide legal questions and certainly with impact on the "who gets what, when, how" outcomes of society. These two perspectives also influence the study of courts transnationally and with perhaps greater effect on research because of the challenge faced by comparativists in defining categories of similarities and differences. That courts’ roles and the "rule of law" are political issues is highlighted especially in the rapidly democratizing countries of Eastern Europe. Certainly the output of courts in individual countries as well as their overall role, and for that matter, the role "the rule of law" as opposed to the wishes of rulers plays in any regime are political outcomes. Kenney’s discussion of the ECJ, a court which cuts across individual political cultures and regimes, highlights most dramatically the political nature of courts.

Martin Shapiro’s final essay on judicial review is particularly helpful in presenting the efforts to theorize about the role of courts and their power of judicial review transnationally. He discusses three theories. The federalism theory views judicial review as a practical solution to the inevitable disputes that arise in countries with complex political structures that possess both central governments and constituent governments with separate powers. A second theory, the "rule of law" theory, suggests that judicial review will exist in countries with stronger allegiances to judicial neutrality. Finally, the rights hypothesis focuses on the growing international concern with individual human rights and the need for some governmental body to serve as arbiter of rights versus governmental interest.

As the complexities of politics and governmental structure continue to grow globally, Shapiro neatly summarizes the growing role of judicial review comparatively by answering the question of "why [given immensely different cultures] do different peoples give so much power to judges" by asserting that they cannot help it, they want to.

Copyright 1995