Vol. 10 No. 8 (August 2000) pp. 480-483.

GOVERNING WITH JUDGES: CONSTITUTIONAL POLITICS IN EUROPE by Alec Stone Sweet.

Oxford: Oxford University Press, 2000. 232 pp. Cloth $60.00. Paper $24.95.

Reviewed by Donald W. Jackson, Department of Political Science, Texas Christian University.

This book is the latest stage in the evolution of Alec Stone Sweet's work on European constitutional politics and constitutional courts. His other works, from a notable beginning in THE BIRTH OF JUDICIAL POLITICS IN FRANCE (1992), through the intervening theoretical explication in his article, "Judicialization and the Construction of Governance," (1999) should be read as well.

In this book, Stone Sweet's essential points are, first, that European policy-making has been "judicialized" by judges, especially those sitting on specialized constitutional courts. Their decisions intervene in the legislative process to constrain legislators, and sometimes even to determine the "precise terms of legislation." Second, he describes the politicization of constitutional justice, by which he means that constitutional review may be activated either to alter legislative outcomes or the state of constitutional law itself. Moreover, this judicialized and politicized form of constitutional politics has expanded beyond the realm of constitutional courts to include other political actors in a process of broadly judicialized policy making. It should be noted that writing about the judicialization of politics is by no means unique to Stone. For example, although their book was not focused strictly on the phenomenon of European-style constitutional politics, the Tate and Vallinder edited book, THE GLOBAL EXPANSION OF JUDICIAL POWER (1995), had much the same theme.

Thirty years ago this book might have been written in the language of functional analysis. Stone Sweet's effort to transcend strict tri-partite separation of powers recalls the commonplace understanding of that time that the any of the functions of rule-making, rule-application and rule-adjudication in principle might be performed within any of the separate institutions that were designed chiefly to fulfill only a single function. Also, the normative structures that influence the behavior of actors within the separate institutions might have been described as the normative expectations for specified roles. Note, for example, the following:

"In short, norms are the natural product of our propensity for moral reflection, and rule systems are sustained by ongoing, collective conversation about how society ought to be ordered" (p. 10)

However, this is a reminder of the circularity of our discourse rather than a fundamental criticism.

The European model of judicial review that Stone Sweet analyzes often is abstract review or referred constitutional questions, conducted chiefly --

but not

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exclusively -- by specialized constitutional courts that are formally detached both from the legislature and the judiciary. This process contrasts with the American model that consists usually of concrete review -- an actual case or controversy between contending parties -- and is pervasive (in principle, within the power of any judge of any court).

Stone Sweet notes that the antecedent of the European model is the "Kelsenian Constitutional Court" of the Austrian Second Republic. He notes that while Hans Kelsen understood that the negating power of a constitutional court was legislative in nature, Kelsen argued that the decisions of constitutional judges were "absolutely determined by the constitution" (p. 35). Of course, Kelsen's argument cannot withstand comparison to the real world of constitutional adjudication in which constitutional judges may, as Stone Sweet suggests: (1) operate as a 'counterweight' to majority rule; (2) "pacify" politics; (3) legitimize public policy; and (4) protect human rights (p. 137).

In the 1999 article that preceded the present book, Stone Sweet presented a conceptual model that is well worth the reading. It rests on his use of the concepts of dyads and triads and their related normative structures as the fundamental building blocks of politics. Dyads are patterns of exchange between two individuals or groups, the normative basis of which is reciprocity. Triads are more interesting to students of judicial politics, for the triad involves two disputants and a dispute "resolver." Triadic dispute resolution (TDR), Stone Sweet says, may be either consensual or compulsory. Compulsory TDR is triggered by one party to a dispute against the will of the other, and thus courts are the paradigmatic form of compulsory TDR (Stone Sweet 1999, 150). The normative structures that describe how compulsory TDR is to be conducted - the rules of the game - include, most importantly that the "dispute resolvers" must be fair and impartial. Indeed, the dispute resolver's neutrality is the foundation for the social legitimacy of the triad. I would add that the expectation of neutrality rests both on social trust of others and on our belief that certain institutions are trustworthy. Yet, when the disputes to be resolved involve constitutional principles, TDR is involved in determining "the content of a community's normative structure." Thus in Stone Sweet's terms, "The judicialization of politics is the process by which triadic lawmaking progressively shapes the strategic behavior of political actors engaged in interactions with one another" (Stone Sweet 1999, 164). This is the model that Stone Sweet applies to constitutional politics in Europe in the present book. So he presents what he describes as a theory of the judicialization of social life as well as a theory of constitutional politics. I would call his results a conceptual framework, but perhaps that is a distinction without an important difference. I would caution that as we come to understand this process as intrinsically political -- through the politicization of constitutional justice -- we encounter the potential contradiction that the dispute resolver is no longer necessarily neutral within the terms of our original normative expectation. That can create a crisis of legitimacy. Of course, most citizens, most of the time, remain blissfully unaware of this contradiction.

His purpose is:

"... to explain first, how legislators are gradually placed under the

tutelage of the constitutional court or, more

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precisely, the pedagogical authority of constitutional case law and, second, why the techniques of constitutional decision-making, as developed and employed by constitutional judges, tend to diffuse to other public authorities" (p. 194).

To flesh out the model he reviews example of judicial "legislation" in France (nationalizing the economy, 1981-1982) and Spain (legalizing abortion, 1983-1985) in Chapter 3. Selected examples of his review of the protection of human rights in Chapter 4 include transexuality and the right to sexual identity in Italy, 1979-1985 - as an example of protecting an unwritten right. Spain -- language rights in Catalan, 1994 -- and Germany - liberalization of abortions, 1975-1992 - serve as examples of balancing interests. Germany again -- freedom of expression and private law) - provides an example of the constitutionalization of German private law and Italy again -- the dismantling of the state's broadcast monopoly) - provides an example of interactive corrective revision between the Parliament and the constitutional court (on Italy see also Volcansek 2000).

His framework for understanding constitutional politics has four stages arrayed in a circle with the flow counter-clockwise. The constitution itself is arrayed between the 4th (and last) and the 1st stage. The legislature between the 1st and 2nd stages, the constitutional court (and individual judges) between the 2nd and 3rd stages, and specific decisions of the constitutional court between the 3rd and the 4th stages. The 1st and 4th stages depict the "judicialization of law-making." These consists of the discourse containing decisions by constitutional judges that contain "the constitutional rules governing the exercise of legislative power" and "the reception of those rules, and the terms of this discourse by legislators." The second and third stages depict the "politicization of constitutional justice," by which he means efforts to use constitutional judges either to alter legislation or constitutional norms" (p. 194-95). Thus, judicial review is a process of the constitution influencing the decisions of legislatures, which in turn are reviewed and influenced by judges (here chiefly constitutional courts), whose decisions determine the meaning of the constitution and once again influence the decisions of legislatures. And so on . . . .

According to Stone Sweet, the consequence of this process is that European "[l]egislators today routinely take decisions that they would not have taken in the absence of review, and governing majorities anticipate likely decisions of the courts and constrain their behavior accordingly" (p. 202).

To follow up on this book, it would be most interesting to apply Charles Epp's (1998) findings regarding "support structures for legal mobilization" to the constitutional politics that Stone Sweet studies. Are the processes of European constitutional courts so different that such support structures or less relevant? Or do they operate differently?

Stone Sweet's concluding caveat is that, "In the end, governing with judges also means governing like judges" (p. 204). For those of us who study judges, this is a book that is well worth the reading.


REFERENCES:

Epp, Charles R. 1998. THE RIGHTS REVOLUTION: LAWYERS, ACTIVISTS AND SUPREME

COURTS IN

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COMPARATIVE PERSPECTIVE. Chicago: The University of Chicago Press.

Stone, Alec. 1992. THE BIRTH OF JUDICIAL POLITICS IN FRANCE. New York: Oxford

University Press.

Stone Sweet, Alec. 1999. "Judicialization and the Construction of

Governance." COMPARATIVE POLITICAL STUDIES, 32: 147-84.

Tate, C. Neal and Torbjorn Vallinder (eds.). 1995. THE GLOBAL EXPANSION OF

JUDICIAL POWER. New York: New York University Press.

Volcansek, Mary L. 2000. CONSTITUTIONAL POLITICS IN ITALY: THE CONSTITUTONAL

COURT. New York: St. Martin's Press.