A Tale of Two Maps: The Limits of Universalism in Comparative Judicial Review

(2009) 47 Osgoode Hall Law Journal 287-316.

CLPE Research Paper No. 14/2008

36 Pages Posted: 10 Dec 2007 Last revised: 3 Jan 2017

See all articles by Adam M. Dodek

Adam M. Dodek

University of Ottawa - Common Law Section

Date Written: May 1, 2008

Abstract

The explosion of scholarship in comparative constitutional law in the last decade tends to overshadow the traditional suspicion that comparative law exhibited towards public law. For the greater part of the 20th century, the dominant paradigm in comparative public law was particularism and strong skepticism towards universalist features and possibilities in public law, especially constitutional law. With the rise of judicial review after World War II and especially in Eastern Europe after the collapse of the Soviet Union, comparative judicial review has begun to flourish. This paper is a comment on a paper by Professor Miguel Schor entitled "Mapping Comparative Judicial Review" presented at the Second Osgoode Hall Law School Constitutional Law Roundtable in Toronto in February 2007. In this paper, the author argues that the comparative scholarship on judicial review overemphasizes the centrality of "the Question of Legitimacy" of judicial review in a democratic polity. This is attributed to the mistaken extrapolation of the American debate over judicial review to universal application. Drawing on the examples of Canada, South Africa and Israel, the author argues that the Question of Legitimacy has less importance and a decisively different character in those countries than in the United States. It is time to recall and embrace some of the particularist skepticism in comparing judicial review across different legal systems.

Keywords: comparative constitutional law, judicial review, particularism, universalism, legitimacy

JEL Classification: K33, K39

Suggested Citation

Dodek, Adam M., A Tale of Two Maps: The Limits of Universalism in Comparative Judicial Review (May 1, 2008). (2009) 47 Osgoode Hall Law Journal 287-316.; CLPE Research Paper No. 14/2008. Available at SSRN: https://ssrn.com/abstract=1067625

Adam M. Dodek (Contact Author)

University of Ottawa - Common Law Section ( email )

57 Louis Pasteur Street
Ottawa, K1N 6N5
Canada

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