Towards Juristocracy: The Origins and Consequences of the New Constitutionalism

Posted: 16 Feb 2004

Abstract

In countries and supranational entities around the globe, constitutional reform has transferred an unprecedented amount of power from representative institutions to judiciaries. The constitutionalization of rights and the establishment of judicial review are widely believed to have benevolent and progressive origins, and significant re-distributive, power-diffusing consequences. "Towards Juristocracy" challenges this conventional wisdom.

Drawing upon a comprehensive comparative inquiry into the political origins and jurisprudential consequences of the recent constitutional revolutions in Canada, Israel, New Zealand, and South Africa, the book shows that the trend toward constitutionalization is hardly driven by politicians' genuine commitment to democracy, social justice, or universal rights. Rather, it is best understood as the product of a strategic interplay among hegemonic yet threatened political elites, powerful economic stakeholders, and judicial leaders. This self-interested tripartite coalition determines the timing, extent, and nature of constitutional reforms.

This book demonstrates that whereas the constitutionalization of rights may promote procedural justice and negative liberties, it does little if anything for advancing progressive notions of distributive justice. At the same time, judicial empowerment through constitutionalization has a transformative effect on political discourse. From foundational collective identity and nation building quandaries to restorative justice and regime change controversies, constitutional courts have become crucial fora for dealing with the most fundamental questions a democratic polity can contemplate. The global trend towards juristocracy is part of a broader process, whereby proponents of powerful social and economic interests, while they profess support for democracy, attempt to insulate policy-making from the vicissitudes of democratic politics.

Given this dramatic development, the traditional neglect of the study of comparative law and politics is becoming harder to justify. An informed, genuinely comparative, problem driven research agenda will not only help to bridge the traditional gap between grand constitutional theory and real-life constitutional politics worldwide; it is also likely to yield novel insights concerning the origins and consequences of the ever-accelerating transition to juristocracy.

Suggested Citation

Hirschl, Ran, Towards Juristocracy: The Origins and Consequences of the New Constitutionalism. Ran Hirschl, TOWARDS JURISTOCRACY: THE ORIGINS AND CONSEQUENCES OF THE NEW CONSTITUTIONALISM, Harvard University Press, 2004. Available at SSRN: https://ssrn.com/abstract=503284

Ran Hirschl (Contact Author)

University of Toronto ( email )

78 Queen's Park
Toronto, Ontario M5S 2C5
Canada

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