The New Constitutionalism and the Judicialization of Pure Politics Worldwide

Abstract

Despite the increasing prevalence of the judicialization of politics - the ever-accelerating reliance on courts worldwide for addressing core moral predicaments, public policy questions, and political controversies - academic discourse addressing this phenomenon remains surprisingly sketchy. With a few notable exceptions, the judicialization of politics is often treated in a rather unrefined fashion as an organic byproduct of the prevalence of rights discourse. It is sometimes confused with a generic version of judicial activism, with little or no attention to the distinction between reliance on courts for determining say, the scope of the right to fair trial, and reliance on courts for dealing with watershed questions of nation building and collective identity that lie at the heart of a nation's self-definition. In this article, I chart the contours of the latter aspect, or what may be called the judicialization of mega or pure politics.

I begin by distinguishing among three broad categories of judicialization: (1) the spread of legal discourse, jargon, rules, and procedures into the political sphere and policy-making forums and processes; (2) judicialization of public policy-making through "ordinary" administrative and judicial review; and (3) the judicialization of "pure politics" - the transfer to the courts of matters of an outright political nature and significance including core regime legitimacy and collective identity questions that define (and often divide) whole polities. I then illustrate the distinct characteristics of this latter type of judicialization through recent political jurisprudence of courts and tribunals worldwide. In the paper's final part, I illustrate the significance of the political sphere's support as a necessary precondition for the judicialization of pure politics. These examples suggest that constitutional law is indeed a form of politics by other means.

Keywords: Judicialization of politics, comparative constitutional law and politics