How, When and Why Does Faith in Law's Autonomy from Politics Decline? A Comparative Constitutional-Cultural Analysis

Erin Delaney and Rosalind Dixon (eds), Comparative Judicial Review (Edward Elgar, Forthcoming)

UNSW Law Research Paper No. 17-16

31 Pages Posted: 22 Feb 2017

Date Written: January 1, 2016

Abstract

This paper examines the conditions for a particular kind of constitutional-cultural transformation, one in which a hegemonic ideology of law’s autonomy from politics weakens to be replaced by a conception of law, and judicial review in particular, as an adaptable instrument for the pursuit of political goals. A transformation of this sort is famously what is said to have occurred in the United States over the course of the last century. A broadly similar process took place in India after the end of the 1975-1977 Emergency. On the other hand, in Australia in the mid-1980s and in South Africa after 1996, calls for judges to be more candid about the role of extra-legal values in constitutional adjudication did not in the end result in a significant weakening in the ideal of law’s autonomy from politics. Likewise, Germany’s strongly legalist tradition survived the criticisms of its role in the rise of National Socialism, with the Federal Constitutional Court famously consolidating its authority in the 1950s by construing that country’s bill of rights as an ‘objective system of values’. The paper uses Millian methods of agreement and difference and within-case process tracing to compare and contrast these five cases. It concludes that, in societies that have adopted a system of strong-form judicial review, a durable weakening in the ideal of law’s autonomy from politics occurs when: (1) the existing ideology of legalism is destabilized by a significant exogenous shock; and (2) there exists either a broad-based legal-cultural movement or a group of charismatic judges willing and able to drive the transformation to a new conception of the law/politics relation.

Keywords: constitutional culture, law’s autonomy, legalism, comparative historical analysis

Suggested Citation

Roux, Theunis Robert, How, When and Why Does Faith in Law's Autonomy from Politics Decline? A Comparative Constitutional-Cultural Analysis (January 1, 2016). Erin Delaney and Rosalind Dixon (eds), Comparative Judicial Review (Edward Elgar, Forthcoming), UNSW Law Research Paper No. 17-16, Available at SSRN: https://ssrn.com/abstract=2921602

Theunis Robert Roux (Contact Author)

University of New South Wales (UNSW) ( email )

Kensington
High St
Sydney, NSW 2052
Australia

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