1
Fordham Law Review
November, 2006
*721 THE NEW CONSTITUTIONALISM AND THE JUDICIALIZATION OF PURE POLITICS
WORLDWIDE
Ran Hirschl [FNa1]
Introduction
Over the last few decades the world has witnessed a profound transfer of power from representative institutions
to judiciaries, whether domestic or supranational. The concept of constitutional supremacy--one that has long
been a major pillar of the American political order--is now shared, in one form or another, by over one hundred
countries across the globe. Numerous post-authoritarian regimes in the former Eastern Bloc, Southern Europe,
Latin America, and Asia have been quick to endorse principles of modern constitutionalism upon their transition
to democracy. Even countries such as Canada, Israel, Britain, and New Zealand--not long ago described as the
last bastions of Westminster-style parliamentary sovereignty--have gradually embarked on the global trend
towards constitutionalization. Almost every day newspaper headlines report on issues such as
constitutionalization processes in the European Union (EU) and Iraq, trials of ousted despots before international
tribunals, and landmark constitutional jurisprudence in the United States, Germany, or South Africa.
One of the main manifestations of this trend has been the judicialization of politics--the ever-accelerating
reliance on courts and judicial means for addressing core moral predicaments, public policy questions, and
political controversies. Armed with newly acquired judicial review procedures, national high courts worldwide
have been frequently asked to resolve a range of issues, from the scope of expression and religious liberties,
equality rights, privacy, and reproductive freedoms, to public policies pertaining to criminal justice, property,
trade and commerce, education, immigration, labor, and environmental protection. Bold newspaper headlines
reporting on landmark court rulings concerning hotly contested issues--same sex marriage, limits on campaign
financing, and affirmative action, to give a few examples--have become a common phenomenon. *722 This is
evident in the United States, where the legacy of active judicial review recently marked its bicentennial
anniversary; here, courts have long played a significant role in policy making. It is just as evident in younger
constitutional democracies that have established active judicial review mechanisms only in the last few decades.
Meanwhile, transnational tribunals have become the main loci for coordinating policies at the global or regional
level, from trade and monetary issues to labor standards and environmental regulations.
However, the growing political significance of courts has become not only more widespread, but also expanded
in scope to become a manifold, multifaceted phenomenon that extends well beyond the now "standard" concept
of judge-made policy making, through ordinary rights jurisprudence and judicial redrawing of legislative
boundaries between state organs. The judicialization of politics now includes the wholesale transfer to the courts
of some of the most pertinent and polemical political controversies a democratic polity can contemplate. Recall
such matters as the outcome of the American presidential election of 2000, the new constitutional order in South
Africa, Germany's place in the EU, the war in Chechnya, Argentina's economic policy, Hungary's welfare
regime, the Pervez Musharraf-led military coup d'état in Pakistan, transitional justice dilemmas in postauthoritarian
Latin America and post-communist Europe, the secular nature of Turkey's political system, Israel's
foundational definition as a "Jewish and Democratic State," or the political future of Quebec and the Canadian
federation: All of these and many other hotly contested political issues have been framed as constitutional issues.
And this has been accompanied by the concomitant assumption that courts--not politicians or the demos itself--
are the appropriate forums for making these key decisions. In short, to paraphrase Alexis de Tocqueville's
observation with respect to the United States, [FN1] there is now hardly any public policy dilemma or political
disagreement in the world of new constitutionalism that does not sooner or later become a judicial one.
Despite the increasing prevalence of this phenomenon, academic discourse addressing the judicialization of
politics worldwide remains surprisingly sketchy. With a few notable exceptions, [FN2] the judicialization of
politics is often treated in a rather unrefined fashion as an organic byproduct *723 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 paper, 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
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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.
I. The Three Faces of Judicialized Politics
The "judicialization of politics" is an often umbrella-like term referring to what are really three interrelated
processes. At the most abstract level, the judicialization of politics refers to the spread of legal discourse, jargon,
rules, and procedures into the political sphere and policy-making forums and processes. The ascendancy of legal
discourse and the popularization of legal jargon are evident in virtually every aspect of modern life. It is perhaps
best illustrated by the subordination of almost every decision-making forum in modern rule-of-law polities to
quasi-judicial norms and procedures. Matters that had previously been negotiated in an informal or nonjudicial
fashion have now come to be dominated by legal rules and procedures. [FN3]
Judicialization of this type is inextricable from law's capture of social relationships and popular culture and its
expropriation of social conflicts. It stems from the increasing complexity and contingency of modern societies,
[FN4] or from the creation and expansion of the modern welfare state with its numerous regulatory agencies.
[FN5] Some accounts of the rapid growth of judicialization at the supranational judicial level portray it as an
*724 inevitable institutional response to complex coordination problems deriving from the systemic need to
adopt standardized legal norms and administrative regulations across member-states in an era of converging
economic markets. [FN6]
Related aspects of this type of "juridification" of modern life have also been identified by early legal
sociologists--for example, Henry Maine's "from status to contract" thesis [FN7] or Max Weber's emphasis on the
rise of a formal, unambiguous, and rational legal system in Western societies. [FN8] Lawyers are the main
"moles" of such "organic judicialization." According to Emile Durkheim, for example, law reflects the evolving
division of labor and interpersonal solidarity within a society. [FN9] In primitive societies, he argues, the
division of labor among people was less developed, and social bonds were typically stronger. Hence, formal law
was not required. In more developed societies, there is increased specialization and clearer division of labor
among people, accompanied by lower social cohesiveness. Contract, rather than status or barter, has become the
major form of exchange among people. The state apparatus now assures the fulfillment of the contract and
establishes the external conditions for its use. A special class-- lawyers--arose to negotiate and litigate the more
complex and ever-increasing contractual relationships in modern society.
A second, more concrete aspect of the judicialization of politics is the expansion of the province of courts and
judges in determining public policy outcomes, mainly through "ordinary" constitutional rights jurisprudence and
the judicial redrawing of boundaries between state organs (e.g., the separation of powers, federalism). Not a
single week passes by without a national high court somewhere in the world releasing a major judgment
pertaining to the scope of constitutional rights protections or the limits on legislative or executive powers. Of
these, the most common are cases dealing with classic civil liberties, primarily criminal due process rights,
various aspects of the rights to privacy, and formal equality--all of which expand and fortify the boundaries of
the constitutionally protected private sphere, often perceived as threatened by the long arm of the encroaching
state and its regulatory laws. [FN10]
Judicialization of public policy making through rights jurisprudence is perhaps most evident in the area of
procedural justice. In many new constitutionalism countries, criminal due process cases account for roughly
*725 two-thirds of constitutional courts' rights cases. [FN11] The prevalence of due process rights is also evident
in cases dealing with "process-light" measures adopted to combat terrorism. In 1999, the Israeli Supreme Court
banned the use of torture in interrogations by Israel's General Security Services. [FN12] Peru's Constitutional
Council annulled in 2002 the secret trial by a military tribunal of the leaders of the Shinning Path Maoist
underground rebel movement. [FN13] The Law Lords declared unconstitutional Britain's post-9/11 state of
emergency legislation. [FN14] In its recent ruling in Hamdan v. Rumsfeld, the U.S. Supreme Court quashed the
Bush Administration's Guantánamo Bay military tribunals. [FN15]
Whereas the first type of judicialization may be described as "judicialization of social relations," judicialization
of this second type focuses mainly on procedural justice and formal fairness in decision-making processes.
Because it is often initiated by right claimants who challenge public policy decisions and practices, it may also
be described as "judicialization from below." As Charles Epp suggests, the impact of constitutional catalogues of
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rights may be limited by individuals' inability to invoke them through strategic litigation. [FN16] Hence, bills of
rights matter to the extent that a support structure for legal mobilization--a nexus of rights-advocacy
organizations, rights-supportive lawyers and law schools, governmental rights-enforcement agencies, and legal
aid schemes--is well developed. In other words, while the existence of written constitutional provisions is a
necessary condition for the effective protection of rights and liberties, it is certainly not a sufficient condition.
The effectiveness of rights provisions in planting the seeds of social change in a given polity is largely
contingent upon the existence of a support structure for legal mobilization, and, more generally, socio-cultural
conditions that are hospitable for such "judicialization from below."
Legal mobilization from below is aided by the commonly held belief that judicially affirmed rights are selfimplementing
forces of social change removed from the constraints of political power. This belief has gained a
near-sacred status in public discussion. The "myth of rights," as Stuart Scheingold termed it, contrasts the
openness of judicial proceedings to the secret bargaining of interest group pluralism so as to underscore the
integrity and incorruptibility of the judicial process. [FN17] "The aim, of course, *726 is to enhance the
attractiveness of legal and constitutional solutions to political problems." [FN18] This in turn may lead to a
spread of populist "rights talk" and the corresponding impoverishment of political discourse. [FN19]
Another aspect of the second face of judicialization is the enforcement of procedural fairness through
administrative review. The proliferation of administrative agencies in the modern welfare state has profoundly
expanded the scope of administrative review by courts. More often than not, such judicial involvement in public
policy making is confined to procedural aspects, focusing on process rather than substance. Drawing upon basic
norms from contract law, constitutional law, and mainly administrative law, courts oversee and enforce the
application of due process, equal opportunity, transparency, accountability, and reasonableness in public policy
making. It is therefore not surprising that judicialization of this type dominates the justice system itself, from
civil procedure to criminal due process; it is particularly noticeable in other process-heavy policy areas such as
immigration, taxation, or public tenders. But it is also clearly evident in countless other areas, from urban
planning and public health to industrial relations and consumer protection. Courts have also monitored important
aspects of the privatization of government assets in the post-communist world. In short, the judicialization of
public policy making in most constitutional democracies, either through rights jurisprudence or administrative
review, comes close to virtually "governing with judges." [FN20]
Over the last few decades, the judicialization of public policy making has also proliferated at the international
level, with the establishment of numerous transnational courts and quasi-judicial tribunals, panels, and
commissions dealing with human rights, transnational governance, trade, and monetary affairs. [FN21] Perhaps
nowhere is this process more evident than in Europe. [FN22] A similar process has taken place with respect to
international trade disputes. [FN23] Decisions made by the World Trade Organization's (WTO) dispute
settlement mechanism have had far-reaching implications for trade and commerce policies worldwide. This is
also the case even in the United States, where compliance with unfavorable rulings by foreign tribunals has
always been a tough sell. The 1994 North America Free Trade Agreement (NAFTA) also establishes quasijudicial
dispute *727 resolution processes regarding foreign investment, financial services, and antidumping and
countervailing instances. Similar arrangements were established by the Mercado Común del Sur agreement in
South America and the Association of Southeast Asian Nations (ASEAN) in the Asia-Pacific region. In short, a
large-scale transfer of crucial policy-making prerogatives from majoritarian decision-making arenas at the
national level to relatively insulated transnational entities and tribunals has been rapidly established over the last
few decades.
A third emerging class of the judicialization of politics is the reliance on courts and judges for dealing with what
we might call "mega-politics": core political controversies that define (and often divide) whole polities. The
judicialization of mega-politics includes a few subcategories: judicialization of electoral processes; judicial
scrutiny of executive branch prerogatives in the realms of macroeconomic planning or national security matters
(i.e., the demise of what is known in constitutional theory as the "political question" doctrine); fundamental
restorative justice dilemmas; judicial corroboration of regime transformation; and, above all, the judicialization
of formative collective identity, nation-building processes, and struggles over the very definition--or raison
d'être--of the polity as such, arguably the most problematic type of judicialization from a constitutional theory
standpoint. These emerging areas of judicialized politics expand the boundaries of national high-court
involvement in the political sphere beyond the ambit of constitutional rights or federalism jurisprudence and take
the judicialization of politics to a point that far exceeds any previous limit. More often than not, this trend is
supported, either tacitly or explicitly, by powerful political stakeholders. The result has been the transformation
of supreme courts worldwide into a crucial part of their respective countries' national policy-making apparatus.
Elsewhere, I have described this process as a transition to juristocracy. [FN24]
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It is difficult to overstate the profoundness of this transition. Whereas oversight of the procedural aspects of the
democratic process--judicial monitoring of electoral procedures and regulations, for example--falls within the
mandate of most constitutional courts, questions such as a regime's legitimacy, a nation's collective identity, or a
polity's coming to terms with its often less than admirable past, reflect primarily deep moral and political
dilemmas, not judicial ones. As such, they ought--at least as a matter of principle--to be contemplated and
decided by the populace itself, through its elected and accountable representatives. Adjudicating such matters is
an inherently and substantively political exercise that extends beyond the application of rights provisions or basic
procedural justice norms to various public policy realms. Judicialization of this type involves instances where
courts decide on watershed political questions that face a nation, despite the fact that the constitution of that
nation does not speak to the contested issues directly, and despite the obvious recognition of the very *728 high
political stakes for the nation. [FN25] It is precisely these instances of judicialization of watershed national
questions involving the intersection of very high political stakes with little or no pertinent constitutional
guidelines that make the democratic credentials of judicial review most questionable. For it is ultimately unclear
what makes courts the most appropriate forum for deciding such purely political quandaries.
The difference between the second and third face of judicialization is subtle, but it is important. It lies in part in
the qualitative distinction between mainly procedural justice issues on the one hand, and substantive moral
dilemmas or watershed political quandaries that the entire nation faces on the other. In other words, there seems
to be a difference between the political salience of the judicialization of public policy making and the
judicialization of mega-politics. Ensuring procedural fairness in public tenders is an important element of
corruption-free public administration. Likewise, the scope of the right to a speedy trial is an important issue for
people facing criminal charges. But its political salience is not nearly as significant as that of purely political
issues such as the place of Germany in the European Union, the future of Quebec and the Canadian federation,
the constitutionality of the post-apartheid political pact in South Africa, or that of affirmative action in the
United States.
But the difference between the second and third level of judicialized politics goes beyond the question of
political salience. It depends on our conceptualization of the "political." What counts as a "political" decision is
not an easy question to answer. A political decision must affect the lives of many people. However, many cases
that are not purely political (e.g., large class-action law suits) also affect the lives of many people. More
importantly, since there is no plain and simple answer to the question "what is political?"--for many social
theorists, the answer to that question would be "everything is political"--there cannot be a plain and simple
definition of the judicialization of politics either. In other words, what Larry King would consider political is
quite different from what Michel Foucault would consider political. Likewise, what may be considered a
controversial political issue in one polity (say, the right to have an abortion in the United States) may be a
nonissue in another polity. That said, there seems to be a qualitative difference between the political salience of
(for example) a court ruling refining the boundaries of the right to fair hearing or reviewing the validity of
federal quotas on agricultural export and a landmark judgment determining the legitimacy of a polity's regime or
a nation's collective identity. Indeed, few decisions may be considered more "political" than authoritatively
defining a polity's very raison d'être. That elusive yet intuitive distinction is what differentiates the judicialization
of mega-politics from the first two levels of judicialization. Consider the following *729 examples--all are
seldom addressed by canonical constitutional theory, which is often preoccupied with matters American.
II. The Judicialization of Pure Politics: A Few Illustrative Cases
A. The Bush v. Gore Scenario
One of the politically salient arenas that has seen a dramatic judicialization over the last two decades is the
electoral process, or what may be referred to as "the law of democracy." [FN26] Courts throughout the world of
new constitutionalism are frequently called upon to decide on matters such as the redrawing of electoral districts,
party funding, campaign financing, and broadcast advertising during election campaigns. In an increasing
number of instances courts approve or disqualify political parties and candidates. Over the last few years, courts
in a number of constitutional democracies--notably Belgium, Israel, India, Spain, and Turkey--have banned (or
come close to banning) popular political parties from participating in national elections. [FN27] Only recently,
the Supreme Court of Bangladesh ruled that voter lists drawn up for the upcoming elections in that country were
invalid. [FN28] During the last decade alone, constitutional courts in over twenty-five countries have been called
upon to determine the political future of prominent leaders through impeachment or disqualification trials.
Whereas the Russian Constitutional Court, for example, enforced a constitutional limit on Russian President
5
Boris Yeltsin's bid for a third term, the Colombian Supreme Court recently approved a constitutional amendment
that removed a provision prohibiting the reelection of government officials, allowing President Alvaro Uribe to
run and ultimately be reelected for a second term. [FN29]
Courts have also become ultimate decision makers in disputes over national election outcomes--for example, in
Zimbabwe (2002), [FN30] in Taiwan (2004), [FN31] in Ukraine (2004), [FN32] and in Italy (2006), where the
Italian *730 Supreme Court approved a win of fewer than 25,000 votes of center-left leader Romano Prodi over
right-wing Silvio Berlusconi in one of Italy's closest elections. [FN33] Most recently, a series of election appeals
and counter-appeals culminated in Mexico's Federal Electoral Court's dismissal of leftist runner-up Andres
Manuel Lopez Obrador's claim of massive fraud in the July 2006 presidential election in that country. [FN34]
The ruling formally granted right-wing candidate Felipe Calderon the 2006-2012 presidency following an
electoral win by less than a 0.6% margin. Even the fate of elections in the exotic island nations of Madagascar
and Trinidad and Tobago have been determined by judicial tribunals. [FN35] Clearly, the Bush v. Gore
courtroom struggle over the fate of the American presidency was anything but an idiosyncratic moment in the
recent history of comparative constitutional politics. [FN36]
B. Core Executive Prerogatives
Another political area that has been increasingly judicialized is core prerogatives of legislatures and executives
in foreign affairs, national security, and fiscal policy. The Supreme Court of Canada (SCC) was quick to reject
the "political question" doctrine (non-justiciability of explicitly political questions) following the adoption of the
Canadian Charter of Rights and Freedoms in 1982. [FN37] In its landmark ruling in Operation Dismantle v. The
Queen, for example, the Court unanimously held that "[i]f a case raises the question of whether executive or
legislative action violated the Constitution, then the question has to be answered by the Court, regardless of the
political character of the controversy . . . . Disputes of a political or foreign policy nature may be properly
cognizable by the courts." [FN38] Not surprisingly, the SCC has become a key decision-making *731 body on
core political questions ranging from the future of Quebec to the future of health care policy in Canada. [FN39]
The newly established Russian Constitutional Court followed suit in the Chechnya Case when it agreed to hear
petitions by a number of opposition members of the Duma, who challenged the constitutionality of three
presidential decrees ordering the Russian military invasion of Chechnya. [FN40] Rejecting Chechnya's claim to
independence and upholding the constitutionality of President Boris Yeltsin's decrees as intra vires, the majority
of the judges of this court stated that maintaining the territorial integrity and unity of Russia was "[a]n
unshakable rule that excludes the possibility of a unilateral armed secession in any federative state." [FN41] In
2004, the Israeli Supreme Court went on to rule on the constitutionality and compatibility with international law
of the West Bank barrier--a controversial network of fences and walls separating Israel from Palestinian
territory. [FN42]
A slightly different, yet equally telling, manifestation of judicial intervention in the political sphere--this time in
the context of national fiscal and welfare policy--can be found in the 1995 Austerity Package Decisions (the socalled
"Bokros cases") by the Hungarian Constitutional Court. [FN43] Here, the court drew upon the concepts of
reliance interest and legal certainty to strike down some twenty-six provisions of a comprehensive economic
emergency plan introduced by the government, the major thrust of which was a substantial cut in the
government's expenditures on welfare benefits, pension allowances, education, and health care in order to reduce
Hungary's enormous budget deficit and foreign debt. [FN44] An equally significant manifestation of the
judicialization of contentious macroeconomic matters is the Supreme Court of Argentina's October 2004 ruling
(the so-called "Corralito Case") on the constitutionality of the government's "pesification" plan (total
convergence of the Argentine *732 economy into pesos with a fixed exchange rate vis-à-vis U.S. dollars), and
the corresponding devaluation and freezing of savings deposits nominated in U.S. dollars--a fall-out from
Argentina's major economic crisis of 2001. [FN45]
While there has been increased judicial penetration into the core prerogatives of legislatures and executives
pertaining to foreign affairs, national security, and fiscal policy, courts have by and large remained passive with
respect to social policy and redistribution of wealth and resources. With very few exceptions (mainly South
Africa and India), courts have shied away from advancing progressive notions of distributive justice in arenas
such as income distribution, eradication of poverty, or subsistence rights (e.g., basic education, health care, or
housing), all of which require wider state intervention and changing public expenditure priorities. [FN46] For
Keynesians and progressives, the judicialization of core executive prerogatives has therefore been a mixed
blessing.
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C. Corroboration of Regime Change
Another emerging area of judicial involvement in mega-politics is the (in)validation of regime change. The most
obvious example is the "constitutional certification" saga in South Africa: This was the first time a constitutional
court refused to accept a national constitutional text drafted by a representative constitution-making body.
[FN47] Other recent manifestations of this type of judicialization include the rarely acknowledged yet
astonishing restoration of the 1997 Fijian constitution by the Fijian Court of Appeal in Fiji v. Prasad in 2001--the
first time in the history of modern constitutionalism that a polity's high court restored a constitution and the
democratic system of government that created it; [FN48] the landmark February 2006 ruling by the Supreme
Court of Nepal, which declared unconstitutional the controversial Royal Commission for Corruption Control
(RCCC) established following the royal coup of 2005, thereby paving the way for the release of ousted Prime
Minister Sher Bahadur Deuba, who had been detained since July 2005 on the RCCC's orders; [FN49] and the
2004 dismissal by the Constitutional Court of South Korea of the impeachment of President Roh Moo-hyun by
South Korea's National Assembly--the first time in the history of modern constitutionalism that a *733 president
impeached by a legislative body has been reinstated by a judicial body. [FN50]
A case in point here is the Pakistani Supreme Court's appraisal of the very legitimacy of the military coup d'état
of 1999. Charging runaway corruption and gross economic mismanagement by the government, General Pervez
Musharraf seized power from Prime Minister Nawaz Sharif in a military coup d'état on October 12, 1999.
Musharraf declared himself the country's new Chief Executive, detained Prime Minister Sharif and several of his
political allies, and issued a Proclamation of Emergency that suspended the operation of Sharif's government,
Pakistan's National Assembly, and its Senate. In response, political activists opposed to the military coup filed a
petition to the Supreme Court in mid-November 1999, challenging the legality of the overthrow of Sharif's
government and the Proclamation of Emergency, and demanding that Nawaz Sharif be released and his elected
government be reinstated. In a widely publicized decision released in May 2000, the Pakistan Supreme Court
drew upon the doctrine of "state necessity" to unanimously validate the October 1999 coup as having been
necessary to spare the country from chaos and bankruptcy. [FN51] The Court held that
[o]n 12th October, 1999, a situation arose for which the Constitution provided no solution and the intervention
by the Armed Forces through an extra constitutional measure became inevitable, which is hereby validated on
the basis of the doctrine of State necessity and the principle of salus populi suprema lex . . . . [S]ufficient
corroborative and confirmatory material has been produced . . . in support of the intervention by the Armed
Forces through extra-constitutional measure. [FN52]
However, Chief Justice Irshad Hasan Khan added that "prolonged involvement of the Army in civil affairs runs
a grave risk of politicizing it, which would not be in national interest, therefore, civilian rule in the country must
be restored within the shortest possible time." [FN53] Accordingly, the court granted General Musharraf three
years to accomplish economic and political reforms and to restore democracy. [FN54] The court announced that
General Musharraf (President Musharraf as of June 2001) should choose a date no later than ninety days before
the end of the three-year period for the holding of elections to the National Assembly, the provincial assemblies,
and the Senate. [FN55] Pakistan is a country in a near-constant political limbo. One thing is clear, though--the
courtroom battle over the political *734 legitimacy of the Musharraf regime reemphasized the key political role
played by the Supreme Court in present-day Pakistan. [FN56]
D. Transitional Justice
A fourth emerging area of mega-politics that has been rapidly judicialized to what may be an excessive degree
over the past few decades is that of transitional or restorative justice. The increasingly common transfer from the
political sphere to the courts of fundamental moral and political dilemmas concerning extreme injustices and
mass atrocities committed against historically disenfranchised groups and individuals involves a few
subcategories that reflect different notions of restorative justice. There are many recent examples of the
judicialization of restorative justice. Recall the post-apartheid era in South Africa: The amnesty-for-confession
formula had been given a green light by the South African Constitutional Court in Azanian Peoples'
Organization ("AZAPO") v. President of the Republic of South Africa (1996) upholding the establishment of the
quasi-judicial Truth and Reconciliation Commission. [FN57] Or consider the major role played by the newly
established constitutional courts in post-communist Europe in confronting their respective countries' pasts
through the trials of former office holders who committed what are now considered to be human rights violations
during the communist era. [FN58] Likewise, there has been a widespread judicialization of restorative justice in
post-authoritarian Latin American countries (consider for example the legal battle over the fate of Augusto
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Pinochet, Chile's former dictator). Yet another example would be the wholesale judicialization of the battle over
the status of indigenous peoples in so-called "settler societies" like Australia, Canada, and New Zealand.
The judicialization of restorative justice is also evident at the transnational level. Here, too, there are many
examples. The International Criminal Court (ICC) (ratified by 90 countries as of 2006) was established in 1998
as a permanent international judicial body with potentially universal jurisdiction pertaining to genocide, crimes
against humanity, war crimes, and so on. [FN59] The International Criminal Tribunal for the former *735
Yugoslavia (ICTY) in The Hague was established in 1993; [FN60] this is the tribunal where Slobodan Milosevic
was put to trial. [FN61] Another example is the International Criminal Tribunal for Rwanda (ICTR) in Arusha,
Tanzania, established in 1995. Also included in this category are the recently established "hybrid courts" in
Cambodia, East Timor, Iraq, Kosovo, and Sierra Leone, which are all international restorative justice tribunals
working within the rules and regulations of the domestic legal system and applying a compound of international
and national, substantive and procedural, law.
E. Defining the Nation via Courts
But all of these areas of judicialized pure or mega-politics are merely an introduction to what is arguably the
clearest manifestation of the wholesale judicialization of core political controversies--the growing reliance on
courts for contemplating the very definition, or raison d'être, of the polity. Consider for example, the
unprecedented involvement of the Canadian judiciary in dealing with the status of bilingualism and the political
future of Quebec and the Canadian federation, including the Supreme Court of Canada's landmark ruling in the
Quebec Secession Reference--the first time a democratic country had ever tested in advance the legal terms of its
own dissolution. [FN62] Likewise, the German Federal Constitutional Court has played a key role in the creation
of the unified Germany, illustrated for example in the Maastricht Case, where the Court drew upon Basic Law
provisions to determine the status of post-unification Germany vis-à-vis the emerging European supranational
polity. [FN63] There are many other examples of this phenomenon: The central role the Turkish Constitutional
Court has played in preserving the strictly secular nature of Turkey's political system by continually outlawing
anti-secularist political forces and parties; the landmark jurisprudence of the Supreme Court of India pertaining
to the status of Muslim and Hindu religious personal laws; [FN64] the crucial role of courts in diverse
constitutional theocracies, such as Egypt or Malaysia, in determining the nature of public life in these modern
states formally governed by principles of Islamic Shari?a laws; [FN65] the wholesale transfer of the deep
religious/secular cleavage in Israeli society to the Israeli judiciary through the judicialization of the question of
"who is a Jew?" and the corresponding entanglement of the Israeli Supreme Court in interpreting *736 Israel's
fundamental definition as a "Jewish and Democratic State." [FN66] At the supranational level, one can think of
the key role the European Court of Justice has played in enforcing and accelerating the process of European
integration--a role that is only bound to increase with the 2004 EU eastward expansion and the possibility of an
EU Constitution.
To better appreciate the purely political nature of these judgments, a more detailed discussion of a few
illustrative cases is warranted. Let us begin with Europe. In the landmark Maastricht Case, the German Federal
Constitutional Court was asked to draw upon Germany's Basic Law provisions to determine the status of postunification
Germany vis-à-vis the emerging European supranational polity. [FN67] Article 38 of the Basic Law
confers on German citizens the right to vote for their parliamentary representatives. [FN68] Article 20(2) of the
Basic Law confers on citizen-voters the right to participate in the exercise of state authority through their
parliamentary deputies. [FN69] The petitioners argued that the creation of the European Union through the
Maastricht Treaty of 1992 implied a transfer of policy-making authority from the national level to the
supranational level, thereby placing a considerable amount of policy-making authority beyond the ambit of
national legislators. Specifically, the transfer of policy-making authority to the European Union constituted a
relinquishment of power by the Bundestag, thereby infringing upon the right of German citizens to influence the
exercise of state power through the act of voting. And so, once again, a national high court was called upon to
clarify and settle a fundamental political controversy, this time concerning the inter-relationships between the
German voter, the Bundestag, and the emerging supranational European polity.
In its decision, the German Federal Constitutional Court addressed at great length the rationale behind the
creation of a supranational European community, and stipulated the necessary conditions for generating
democratic legitimacy at the supranational level. The court went on to define the legislative purview of member
states and national parliaments vis-à-vis the EU, and stated that the Bundestag should retain functions and
powers of substantial importance. Moreover, the court stated that "Article 38 of the Constitution is breached if an
act opens up the German legal system to the application of the law of the supranational European Communities
8
[if that act] does not establish with sufficient certainty what powers are transferred and how they will be
integrated." [FN70] The court also held that fundamental democratic principles of political participation and
*737 representation did not pose a bar to German membership in the EU as long as the transfer of power to such
bodies "remain[ed] rooted in the right of German citizens to vote and thus to participate in the national
lawmaking process." [FN71] In other words, the court did not shy away from dealing with an explicitly political
question. Rather, it upheld the constitutionality of the Maastricht Treaty-- the constitutive document of the "ever
closer union" notion--specifically placing the treaty under the judgment of German Basic Law and its principles.
Another telling example of judicial articulation of a nation's core values is the central role played by Egypt's
Supreme Constitutional Court in dealing with the core question of the status of Shari?a rules--arguably the most
controversial and fundamental collective identity issue troubling the Egyptian polity. Since the 1979
establishment of judicial review in Egypt [FN72] and the 1980 constitutional amendment that made Islamic
Shari?a the principal source of legislation in that country, [FN73] the court has increasingly been called upon to
determine the constitutionality of legislative and administrative acts on the basis of their adherence to the
principles of the Shari?a. [FN74] "The question before the Court in all of these cases has been which principles
of the Shari?a possess determinative and absolute authority." [FN75]
To address this question in a moderate way, the court developed a complex interpretative matrix of religious
directives--the first of its kind by a nonreligious tribunal. It departed from the ancient traditions of the fiqh
(Islamic jurisprudence or the cumulative knowledge/science of studying the Shari?a) schools, and has instead
developed a new framework for interpreting the Shari?a. [FN76] Specifically, the court has developed a flexible,
modernist approach to interpreting the Shari?a that distinguishes between "unalterable and universally binding
principles, and malleable applications of those principles." [FN77] Legislation that contravenes a strict,
unalterable principle is declared unconstitutional and void, while at the same time, ijtihad (contemplation or
external interpretation) is permitted in cases of textual lacunae, or where the pertinent rules are vague or openended.
[FN78] Furthermore, the government has been given broad legislative discretion in policy areas where the
Shari?a is found to provide unclear or multiple *738 answers, provided that the legislative outcome does not
contravene the general spirit of the Shari?a. [FN79] This interpretive approach has marked a true shift in the
paradigm for legitimizing government policies based upon a moderate, fairly liberal interpretation (ijtihad) of the
Shari?a.
The court applied this interpretive approach in the Riba Case, [FN80] the landmark Niq?ab Case [FN81] and in
the groundbreaking Khul' Case where the Court upheld the constitutionality of the Personal Status Law of 2000,
including the provisions establishing a Muslim woman's right to invoke khul'--divorce on any grounds without
her husband's consent--so long as the groom's gifts of jewelry (shabka) and dowry payments (mahr) are returned,
and certain financial rights are relinquished. [FN82] Delivering the court's judgment, Justice Maher El-Bahri
confirmed that the incorporation of Khul' into Egyptian personal status law did not violate the Shari?a or article 2
of the constitution, as there were definitive Qur'anic verses and corresponding fiqh supporting the khul'
procedure.
In these and other landmark judgments concerning the scope of Shari?a in Egypt's public life, the court engaged
in an autonomous substantive interpretation of both the Qur?an and evidence available on Sunna. In fact, the
court established its own interpretation of ijtihad irrespective of the contradictory opinions in Islamic
jurisprudence, the fiqh, and its traditional methods. The Egyptian Supreme Constitutional Court thereby
positioned itself as a de facto interpreter of religious norms, and as a major forum for dealing with Egypt's
dilemma of constitutional theocracy.
Perhaps nowhere in the world is the judicialization of mega-politics more evident than in neighboring Israel--
probably the closest country on the planet to a full-fledged juristocracy. Not a single week passes by without the
Supreme Court of Israel (SCI) issuing a key ruling that is widely reported by the media and closely watched by
the political system. The clearest examples of the SCI's deep entanglement with formative questions of collective
identity are its recent rulings concerning the question of "who is a Jew"--arguably the most charged question
pertaining to collective *739 identity in present-day Israel. The Orthodox stream of Judaism has been the sole
branch of Judaism formally recognized by the state. This exclusive status has enabled the Orthodox community
to establish a near monopoly over the supply of public religious services, as well as to impose rigid standards on
the process of determining "who is a Jew." This question has crucial symbolic and practical implications, as
according to Israel's Law of Return, Jews who immigrate to Israel are entitled to a variety of benefits, including
the immediate right to full citizenship. [FN83] Non-Jewish immigrants are not entitled to these benefits. Since
being Jewish is sufficient to qualify for citizenship, the state's self-definition as a Jewish state is inextricably
9
caught up with defining "who is a Jew." Not surprisingly the conversion battle has been watched very closely by
Jews within and outside Israel.
As with other contested political affairs in Israel, the political system's inability or unwillingness to deal with the
issue (aided by the incredibly lenient standing and access rights to the SCI) brought the question of "who is a
Jew" to the SCI. In 1989, when the constitutional revolution initiative was in its formative stages, the SCI held
that for purposes of immigration, any person who converted to Judaism outside Israel, whether under the
auspices of an Orthodox, Conservative, or Reform religious institution, was automatically entitled to all the
rights of an oleh (Jewish immigrant), as stated in the Law of Return and the Citizenship Law. [FN84] In 1995,
the SCI was once again drawn into the muddy waters of identity politics. This time, the question before the SCI
was whether a non-Jewish person who underwent non-Orthodox conversion in Israel was entitled to automatic
citizenship based on the right of return. The SCI avoided giving a clear answer while explicitly reaffirming its
earlier ruling validating non-Orthodox conversions made abroad. [FN85]
Following this ruling, an increasing number of non-Jewish persons residing in Israel (primarily foreign workers
and non-Jewish immigrants from the former Soviet Union) went abroad to pursue non-Orthodox conversion in
order to claim the benefits awarded by the state to those newcomers recognized as Jews. In response, the
Ministry of the Interior (then controlled by the ultra-Orthodox Shas party) renewed its refusal to recognize
Reform and Conservative conversions to Judaism made abroad. In November 1999, the SCI revisited the issue
by stating that if the involved parties had failed to reach a settlement by April 2000, an expanded panel of eleven
judges would address the conversion issue soon thereafter. No agreeable compromise was reached by the
deadline, and the SCI resumed *740 its deliberation on the issue later that year. The judicialization of the
conversion question culminated in early 2002 with the SCI's historic decision (nine to two) to recognize nonOrthodox
conversions to Judaism performed abroad. [FN86] The SCI ordered the Ministry of the Interior to
register as Jews Israeli citizens who were converted by the Conservative or Reform movements abroad. [FN87]
In its reasoning, the SCI drew upon a longstanding convention whereby the Ministry's Population Registry
refrains from questioning Israeli citizens about the details of their beliefs. [FN88]
In March 2005, the SCI delivered yet another landmark judgment on a question that cuts to the heart of the
Jewish state's collective identity. [FN89] A group of foreign workers residing in Israel studied for Reform and
Conservative conversions in Israel, but had the actual ceremonies performed abroad in an attempt to circumvent
the State's exclusive recognition of Orthodox conversions within Israel. The Ministry of the Interior objected to
these "bypass" conversions (known in Israel as "leaping conversions" as they require a brief "jump" to a foreign
jurisdiction), arguing that the Law of Return did not apply to foreigners already living in Israel, and that bypass
conversions were effectively not overseas conversions at all. In a seven-to-four ruling, the SCI sided with the
petitioners and agreed to recognize non-Orthodox "bypass" conversions to Judaism performed de jure abroad but
de facto in Israel. The SCI held that a person who came to Israel as a non-Jew and, during a period of lawful
residence here, underwent conversion in a recognized Jewish community abroad will be considered Jewish. SCI
President Aharon Barak wrote,
The Jewish nation is one . . . . It is dispersed around the world, in communities. Whoever converted to
Judaism in one of these communities overseas has joined the Jewish nation by so doing, and is to be seen as a
"Jew" under the Law of Return. This can encourage immigration to Israel and maintain the unity of the Jewish
nation in the Diaspora and in Israel. [FN90] Recall that this was supposed to be a court ruling, not a political
speech or manifesto. [FN91]
*741 Another textbook example of the judicialization of mega-politics is provided by the unprecedented
involvement of the Supreme Court of Canada in dealing with the status of bilingualism and the political future of
Quebec and the Canadian federation, most notably by the Court's landmark ruling in the Reference re Succession
of Quebec. [FN92] What makes the Reference re Succession of Quebec so unique is not only the fact that it was
the first time a democratic country had ever tested in advance the legal terms of its own dissolution, but also the
liberty the court took to articulate with authority the fundamental pillars of the Canadian polity in a way no other
state organ has ever done before. In September 1996, following a slim 50.6% to 49.4% loss by the Quebecois
secessionist movement in the 1995 referendum, the Canadian federal government drew upon the reference
procedure to ask the Supreme Court of Canada to determine whether a hypothetical unilateral secession
declaration by the Quebec government would be constitutional. In the reference submitted by Ottawa to the
Supreme Court, three specific questions were asked: "(1) Under the Constitution of Canada, can the National
Assembly, legislature or government of Quebec effect the secession of Quebec from Canada unilaterally? (2)
Does international law give the National Assembly, legislature, or government of Quebec the right to effect the
secession of Quebec from Canada unilaterally?" In other words, is there a right to self-determination under
international law that applies to Quebec? (3) If there is a conflict between international law and the Canadian
10
Constitution on the secession of Quebec, which takes precedence? [FN93]
In a widely publicized ruling in August 1998, the SCC unanimously held that unilateral secession would be an
unconstitutional act under both domestic and international law, and that a majority vote in Quebec was not
sufficient to allow Quebec to separate legally from the rest of Canada. [FN94] However, the court also noted that
if and when secession was approved by a clear majority of people in Quebec voting in a referendum on a clear
question, the parties should then negotiate the terms of the subsequent breakup in good faith. [FN95] As for the
question of unilateral secession under Canadian law, the court's answer provided both federalists and separatists
with congenial answers.
*742 In strictly legal terms, the court ruled that the secession of Quebec would involve a major change to the
constitution of Canada that would require an amendment to the constitution, which in turn would require
negotiations among all involved parties. [FN96] On the normative level, the court stated that the Canadian
constitution is based on four equally significant underlying principles: (1) federalism, (2) democracy, (3)
constitutionalism and the rule of law, and (4) the protection of minorities. [FN97] None of these principles
trumps any of the others. [FN98] Hence, even a majority vote (i.e., strict adherence to the fundamental
democratic principle of majority rule) would not entitle Quebec to secede unilaterally. [FN99] However, the
court stated that if a clear majority of Quebecois voted "oui/yes" to an unambiguous question on Quebec
separation, this would "confer legitimacy on the efforts of the government of Quebec to initiate the Constitution's
amendment process in order to secede by constitutional means." [FN100] Such "a clear majority on a clear
question" would require the federal government to negotiate in good faith with Quebec in order to reach an
agreement on the terms of separation. [FN101]
As for international law, the court's answer was much shorter and less ambiguous; it found that although the
right of self-determination of peoples did exist in international law, it did not apply to Quebec. [FN102] While
avoiding the contentious question of whether the Quebec population or part of it constituted a "people" as
understood in international law, the court held that the right to unilateral secession did not apply to Quebec; the
Quebecois are neither denied their rightful ability to pursue their "political, economic, social and cultural
development within the framework of an existing state," nor do they constitute a colonial or oppressed people.
[FN103]
The government of Quebec responded to the judgment by enacting a bill stating that if a majority of "50% plus
one" of those Quebecois who cast ballots in a provincial referendum on the future of Quebec supported the idea
of secession, this would satisfy the requirement for "a clear majority" set by the court decision. The federal
government, on its part, responded in late 1999 by proposing the "Clarity Bill," formally confirmed by
Parliament in summer 2000. [FN104] In a nutshell, the bill states that only "a clear majority on a clear question"
would require the federal government to negotiate the terms of separation with Quebec; that, given the nature of
the question at stake, the term "clear majority" should mean more than "50% plus one"; *743 and that, in any
event, the federal government reserves the right to determine whether the question posed by the Quebec
government in a future referendum met the "clear question" criterion. [FN105]
Without the political context to make sense of these events and rulings, the non-Canadian reader may find this
chain of judicial events regarding the status of Quebec somewhat perplexing. However, one thing is indisputable:
Over the past twenty-five years, the SCC has become one of the most important public forums for dealing with
the highly contentious issue of Quebec's status and its future relationship with the rest of Canada. Drawing upon
the new constitutional framework established by the Constitution Act, 1982 and the SCC's willingness to play a
central role in the Quebec saga, the involved parties (primarily the federalists) were able to gradually transfer the
question of Quebec from the political sphere to the judicial sphere.
In summary, in numerous countries throughout the world there has been a growing legislative deference to the
judiciary, an increasing intrusion of the judiciary into the prerogatives of legislatures and executives, and a
corresponding acceleration of the process whereby political agendas have been judicialized. Together, these
developments have helped bring about a growing reliance on adjudicative means for clarifying and settling
fundamental moral controversies and highly contentious political questions, and have transformed national high
courts into major political decision-making bodies. The wave of judicial activism that has swept the globe in the
last few decades has not bypassed the most fundamental issues a democratic polity ought to address-- whether it
is coming to terms with its own, often not so admirable, past or grappling with its embedded collective identity
quandaries. With the possible exception of the judicial oversight of the electoral process itself, none of these
recently judicialized questions are uniquely or intrinsically legal; although some may have certain important
11
constitutional aspects, they are neither purely, or even primarily, legal dilemmas. As such, they ought to be
resolved, at least on the level of principle, through public deliberation in the political sphere. Nonetheless,
national high courts throughout the world have gradually become major decision-making bodies for dealing with
precisely such dilemmas. Fundamental restorative justice, regime legitimacy, and collective identity questions
have been framed in terms of constitutional claims, and, as such, have rapidly found their way to the footsteps of
the courts.
III. Why Is This Happening?
Perhaps nowhere is the notion of constitutional law as politics by other means held truer than in the area of
judicialized mega-politics. The examples discussed above highlight the fact that neither a constitutional
framework that is conducive to judicial activism nor "power-hungry" *744 judges or non-deferential
constitutional courts are sufficient conditions for the judicialization of mega-politics. Assertion of judicial
supremacy of the type described in this paper cannot take place, let alone be sustained, without the tacit or
explicit support of influential political stakeholders. It is unrealistic, and indeed utterly naïve, to assume that core
political questions such as the struggle over the nature of Canada as a confederation of two founding peoples,
Israel's wrestling with the question of "who is a Jew?" and its status as a Jewish and democratic state, the
struggle over the status of Islamic law in predominantly Muslim countries, or the transition to democracy in
South Africa, could have been transferred to courts without at least the tacit support of pertinent political
stakeholders in these countries. Like any other political institutions, constitutional courts do not operate in an
institutional or ideological vacuum. Their explicitly political jurisprudence cannot be understood separately from
the concrete social, political, and economic struggles that shape a given political system. Indeed, political
deference to the judiciary, and the consequent judicialization of mega-politics, are integral parts and important
manifestations of those struggles, and cannot be understood in isolation from them. This brings us to a critical
yet often neglected aspect of the story--the political determinants of judicialization. An authentic, "bottom up"
judicialization is more likely to occur when judicial institutions are perceived by social movements, interest
groups, and political activists as more reputable, impartial, and effective decision-making bodies than other
bureaucracy-heavy government institutions or biased majoritarian decision-making arenas. An all-encompassing
judicialization of politics is, ceteris paribus, less likely to occur in a polity featuring a unified, assertive political
system that is capable of restraining the judiciary. In such polities, the political sphere may signal credible threats
to an overactive judiciary that exert a chilling effect on courts. Conversely, the more dysfunctional or deadlocked
the political system and its decision-making institutions are in a given rule-of-law polity, the greater the
likelihood of expansive judicial power in that polity. [FN106] Greater fragmentation of power among political
branches reduces their ability to rein in courts, and correspondingly increases the likelihood of courts asserting
themselves. [FN107]
From the politicians' point of view, delegating contentious political questions to the courts may be an effective
means of shifting responsibility, and thereby reducing the risks to themselves and to the institutional apparatus
within which they operate. The calculus of the "blame deflection" strategy is quite intuitive. If delegation of
powers can increase credit and/or reduce blame attributed to the politician as a result of the policy decision of the
delegated body, then such delegation can benefit the politician. [FN108] At the very least, the transfer of
contested political "hot *745 potatoes" to the courts offers a convenient retreat for politicians who have been
unwilling or unable to settle contentious public disputes in the political sphere. It may also offer refuge for
politicians seeking to avoid difficult or "no win" decisions and/or avoid the collapse of deadlocked or fragile
governing coalitions. [FN109] Conversely, political oppositions may seek to judicialize politics (for example,
through petitions and injunctions against government policies) in order to harass and obstruct governments.
[FN110] At times, opposition politicians may resort to litigation in an attempt to enhance their media exposure,
regardless of the actual outcome of litigation. [FN111] A political quest for legitimacy often stands behind the
transfer of certain regime-change questions to courts. (Consider the aforementioned Pakistani Supreme Court
legitimization of the 1999 military coup d'état in that country.) Empirical studies confirm that national high
courts in most constitutional democracies enjoy greater public legitimacy and support than virtually all other
political institutions. [FN112] This holds true even when courts engage in explicit manifestations of political
jurisprudence. [FN113]
The judicialization of mega-politics may also be driven by "hegemonic preservation" attempts taken by
influential sociopolitical groups fearful of losing their grip on political power. Such groups and their political
representatives are more likely to delegate to the judiciary formative nation-building and collective-identity
questions when their worldviews and policy preferences are increasingly challenged in majoritarian decisionmaking
arenas. [FN114] This trend is perhaps best illustrated in countries where growing popular support for
principles of theocratic governance poses a major threat to the cultural propensities and policy preferences of
moderate and relatively cosmopolitan elites in these countries. [FN115] An increasingly common strategy
12
undertaken by political power holders representing these voices has been the transfer of fundamental collectiveidentity
or "religion and state" quandaries from the political sphere to the constitutional courts. [FN116]
Drawing upon their disproportionate access to and influence over, the legal arena, social forces in polities
facing deep division along secular-religious lines aim to ensure that their secular Western views and policy *746
preferences are less effectively contested. The results have been an unprecedented judicialization of foundational
collective identity, particularly . . . religion and state questions, and the consequent emergence of constitutional
courts as important guardians of secular interests in these countries. [FN117]
Related to this point is the proposition that the judicialization of formative collective identity questions is more
likely to occur in cases of "constitutional disharmony" caused by a polity's commitment to apparently conflicting
values such as Israel's self-definition as a Jewish and democratic state. [FN118] It is also more likely to occur
when the values protected in a given country's constitution contrast with values prevalent among that country's
populace. Consider Turkey's strict separation of religion and state despite the fact the vast majority of Turks
define themselves as devoted Muslims.
The judicialization of politics may reflect the competitiveness of a polity's electoral market or governing
politicians' time horizons. According to the "party alternation" model, for example, when a ruling party expects
to win elections repeatedly, the likelihood of an independent and powerful judiciary is low. However, when a
ruling party has a low expectation of remaining in power, it is more likely to support a powerful judiciary to
ensure that the next ruling party cannot use the judiciary to achieve its policy goals. [FN119] Likewise, when
politicians are obstructed from fully implementing their own policy agenda, they may favor the active exercise of
constitutional review by a sympathetic judiciary to overcome those obstructions. [FN120] The judicialization of
mega-politics may allow governments to impose a centralizing "one-rule-fits-all" policy upon enormous and
diverse polities. [FN121] (Consider the standardizing effect of apex court jurisprudence in exceptionally diverse
polities such as the United States or the European Union). Finally, the transfer of contested "big questions" to
courts and other quasi-professional and semi-autonomous policy-making bodies, domestic or supranational, may
be seen as part of a broader process whereby political and economic elites, while they profess support for a
Schumpeterian (or minimalist) conception of democracy, attempt to insulate substantive policy making from the
vicissitudes of democratic politics. [FN122]
*747 The transfer of foundational collective identity questions to the courts seldom yields judgments that run
counter to the interests of those who chose to delegate more power to courts in the first place. Likewise, the
advancement of restorative justice through the courts has been, at best, incremental and lethargic. Occasionally,
courts may respond to counter-establishment challenges by releasing rulings that threaten to alter the political
power relations in which the courts are embedded. Legislatures in most new constitutionalism countries have
been able to respond effectively to such unfavorable judgments or else simply to hinder their implementation.
Perhaps the clearest illustration of the necessity of political support for the third face of judicialization is the
political sphere's decisive reaction to instances of unwelcome judicial activism.
As the recent history of comparative constitutional politics tells us, recurrent manifestations of unsolicited
judicial intervention in the political sphere in general--and unwelcome judgments concerning contentious
political issues in particular--have brought about significant political backlashes, targeted at clipping the wings
of overactive courts. These include legislative overrides of controversial rulings, political tinkering with judicial
appointment and tenure procedures to ensure the appointment of "compliant" judges and/or to block the
appointment of "undesirable" judges, "court-packing" attempts by political power holders, disciplinary sanctions,
impeachment or removal of "objectionable" or "overactive" judges, the introduction of jurisdictional constraints,
or clipping jurisdictional boundaries and judicial review powers. In some instances (e.g., Russia in 1993,
Kazakhstan in 1995, Zimbabwe in 2001, and Ecuador in 2004), the actions taken as a part of this backlash have
resulted in constitutional crises leading to the reconstruction or dissolution of high courts. To this we may add
another political response to unwelcome rulings: more subtle, and possibly more lethal, sheer bureaucratic
disregard for, or protracted or reluctant implementation of, unwanted rulings. [FN123]
Examples of the legislative override scenario in the new constitutionalism world are ample. American
executives and legislatures have frequently revised, hampered, or circumvented constitutional court rulings.
[FN124] In its famous ruling in Mohammed Ahmad Kan v. Shah Bano Begum, the Supreme Court of India held
that the state-defined statutory right of a neglected wife to maintenance stood regardless of the personal law
applicable to the parties. [FN125] This decision had potentially far-reaching implications for India's longstanding
practice of Muslim self-jurisdiction in *748 core religious matters. Traditionalist representatives of the Muslim
community considered this to be proof of Hindu homogenizing trends that threatened to weaken Muslim
13
identity. India's Parliament bowed to massive political pressure by conservative Muslims and overruled the
Indian Supreme Court's decision in Shah Bano by passing the Muslim Women's (Protection of Rights of
Divorce) Act. This new bill, its reassuring title notwithstanding, undid the court's ruling by removing the rights
of Muslim women to appeal to state courts for post-divorce maintenance payments. It also exempted Muslim exhusbands
from other post-divorce obligations. The court, it seemed, understood the message. In a case dealing
with the constitutionality of the Muslim Women's Act, the court's ruling was notably more moderate and
ambiguous than its original ruling in Shah Bano. [FN126]
Or consider the harsh political reaction to, and corresponding legislative override of, the Australian High Court's
expansion of Aboriginal rights. In its historic ruling in Mabo v. Queensland II, the High Court abandoned the
legal concept of terra nullius ("vacant land") that had served for centuries as the basis for the institutional denial
of Aboriginal title, established native title as a basis for proprietary rights in land, and held that Aboriginal title
was not extinguished by the change in sovereignty. [FN127] In The Wik Peoples v. Queensland, the High Court
went on to hold that leases of pastoral land by the government to private third parties did not necessarily
extinguish native title. [FN128] Such extinguishment depended on the specific terms of the pastoral lease and the
legislation upon which it was granted. The potentially far-reaching redistribution implications of Mabo II and
Wik brought about an immediate popular backlash, with the powerful agricultural and mining sectors, backed by
the governments of Queensland, Western Australia, and the Northern Territory, demanding an across-the-board
statutory extinguishment of native title. In early 1997, the conservative government under John Howard
willingly bowed to the counter-court political backlash by introducing amendments to the Native Title Act that,
for all intents and purposes, overrode Wik.
Consider also a sip of Singapore Sling. Responding promptly to an unfavorable ruling by the Singapore
Supreme Court concerning due process rights of political dissidents detained for "communist conspiracy to
overthrow the government," the government of Singapore (controlled for the past four decades by the People's
Action Party) amended the constitution to revoke the court's authority to exercise any meaningful judicial review
over governmental powers of preventive detention. [FN129] In a widely publicized ruling in 1993, the Judicial
Committee of the Privy Council (JCPC) in London overturned a decision of the High Court of *749 Singapore to
expel Mr. J.B. Jeyaretnam--a leading opposition politician--from the Singapore bar association. Prior to its
judgment in the Jeyartenam case, the JCPC's status at the apex of Singapore's judicial system appeared
inviolable. But as soon as the JCPC issued a ruling that ran against the political interests of Singapore's ruling
elite, it was denounced by government officials as "interventionist," "going outside its prescribed role," "out of
touch" with local conditions, and "playing politics." Merely weeks after the JCPC had issued its ruling, the
Singapore government went on to pass a constitutional amendment that abolished altogether appeals to the
JCPC. [FN130]
Recognizing the crucial political significance of the judiciary, politicians in other new constitutionalism
countries have opted for tightening their control over the judicial appointment process. In late 1997, for example,
a serious rift developed between Pakistani Prime Minister Nawaz Sharif and the Chief Justice of the Supreme
Court, Sajjad Ali Shah, over the appointment of new judges to the court. The constitutional crisis came to a
dramatic end when the chief justice was suspended from office by rebel members of the Supreme Court. A crisis
of a similar nature occurred in January 2000, when General Perez Musharraf insisted that all members of the
Cupreme Court pledge allegiance to the military administration. The judges who refused to take the oath were
expelled from the court. Reacting to political turmoil following the controversial expropriation of white farmers'
land in 2000, Zimbabwe's President Robert Mugabe and his ruling ZANU (PF) party ousted the hostile C.J.
Gubbay in March 2001 and went on to appoint the supportive Chidyausiku as new chief justice of Zimbabwe's
Supreme Court. [FN131] Mugabe also stacked the court with three other ZANU (PF) supporters to ensure his
party's control over the judicial branch. [FN132] And in Egypt, disciplinary hearings were recently held against
Egypt's Supreme Constitutional Court Judges Hisham el-Bastawisi and Mahmoud Mekki for openly accusing the
government of electoral fraud in the November 2005 elections. [FN133]
In 2004, Venezuela adopted a law permitting President Hugo Chávez's coalition "to both pack and purge the
country's Supreme Court." [FN134] The law increased the number of justices from twenty to thirty-two. Those
new *750 justices can be selected by a simple majority vote of the National Assembly. [FN135] The law also
provides new mechanisms for removing justices. [FN136] One allows for suspending justices pending an
impeachment vote; the other allows for dismissal and nullification of their appointments. [FN137] In
neighboring Ecuador, major political crises in late 2004 and early 2005 led to the dissolution of that country's
supreme court on two occasions in only four months. [FN138] In Trinidad and Tobago, Prime Minister Patrick
Manning (of the mainly Afro-Trinidadian People's National Movement) has recently suspended Chief Justice
Satnarine Sharma (an Indo-Trinidadian) for allegedly trying to help oust Prime Minister Basdeo Panday (an
14
Indo-Trinidadian and Manning's chief political foe). [FN139] In April 1990, Argentina's President Carlos
Menem expanded that country's supreme court from five to nine members, and single-handedly appointed the
four new justices. [FN140] This blunt court-packing exercise effectively created an automatic pro-government
majority on the bench. Over the last few years, President Eduardo Duhalde, and later President Néstor Kirchner,
have forced all members of this bloc to step down, thereby creating a distinctly more progressive court. [FN141]
The post-communist world also has its fair share of anti-court backlash. The appointments of several activist
judges of the Hungarian Constitutional Court, including that of Justice László Sólyom (now Hungary's
president)--advocate of judicial activism based on an invisible constitutional "spirit" rather than text--were not
renewed upon the completion of their initial nine-year term. Instead, the court was filled with new, notably more
formalist judges advocating judicial restraint. [FN142] Kazakhstan's first Constitutional Court was dissolved
following the 1995 election crisis in that country and a new French-style Constitutional Council was introduced.
The Albanian Constitutional Court was suspended in 1998, its chair was arrested, and a constitutional
amendment limiting the justices' tenure in office to nine years was introduced.
Arguably, the most glaring example here is the widely documented 1993 constitutional crisis in Russia that
included the dissolution of the first Constitutional Court by President Boris Yeltsin. As is well known, President
Yeltsin reacted to an overactive involvement of the Constitutional *751 Court in Russia's political sphere by
signing a decree suspending the Constitutional Court until the adoption of a new constitution. This marked the
demise of the first Constitutional Court and its controversial Chair, Valerii Zorkin, and brought about the
establishment of the second Constitutional Court. Drawing upon a controlled comparison of the dockets of the
first and second Constitutional Courts, Lee Epstein, Olga Shvetsova, and Jack Knight show that, in a marked
departure from the first court era where the docket was dominated by politically charged federalism and
separation of powers cases, the second Russian Constitutional Court resorted to the "safe area" of individual
rights jurisprudence and tended to avoid federalism issues or separation of powers disputes. [FN143] In other
words, harsh political responses to unwelcome activism or interventions on the part of the courts, or even
credible threats of such responses, can have a chilling effect on judicial decision-making patterns. Variations on
the same logic explain prudent judicial behavior in countries as different as Argentina, [FN144] Germany,
[FN145] and Japan. [FN146]
Conclusion
I better stop this cascade of examples now before further exhausting the readers' patience. A few things must be
clear by now. First, while constitutional theorists in the Anglo-American world have been preoccupied with
limiting executive power in the so-called "war on terror" era, the global expansion of judicial power has marched
on. Over the last few years there has been a tremendous growth in the reliance on courts for dealing with some of
the most fundamental political quandaries a polity can contemplate. The judicialization of politics has extended
well beyond the now "standard" judicialization of policy making through procedural justice or rights
jurisprudence, to encompass mega-politics--electoral processes and outcomes, restorative justice, regime
legitimacy, executive prerogatives, collective identity, and nation building. The wholesale judicialization of
mega-politics reflects the demise of the "political question" doctrine, and poses a serious challenge to the
traditional separation of powers doctrine. This trend marks a transition to what I have termed elsewhere
"juristocracy" [FN147]--a sweeping phenomenon that no serious constitutional theorist in the United States or
abroad can afford ignoring. [FN148]
*752 Second, the unprecedented involvement of courts in substantive political decision making is difficult to
reconcile with some of the fundamental principles of canonical constitutional theory. An important distinction
here is between mainly process-oriented issues on the one hand, and watershed political quandaries that the
entire nation faces on the other. While there is little if any problem with courts securing procedural fairness of
electoral processes, the judicialization of fundamental restorative justice dilemmas, regime legitimacy, and
especially foundational collective-identity and nation-building processes is more troublesome. These questions
of mega-politics--often dealing with the very definition of the nation as such--involve very high political stakes
with little or no pertinent constitutional guidelines to address them. It is therefore hard to understand how, in
responding to such questions, judges would be able to base their decisions on principles or considerations that
are qualitatively different from principles or considerations that belong to the province of the legislative process
or national referenda, and that might be better determined there.
The practice is equally problematic from a representative democracy point of view. The ever-accelerating
reliance on courts for articulating and deciding matters of utmost political salience represents a large-scale
abrogation of political responsibility, if not an abdication of power, by elected legislatures whose task is to make
15
accountable political decisions. It may undermine the very essence of democratic politics as an enterprise
involving a relatively open, at times controversial, but arguably informed and accountable deliberation by
elected representatives. After all, the primary function that legislatures should fulfill is to confront and resolve
problems, not to pass them on to others. By transferring political decision-making authority to the judiciary,
these politicians manage to avoid making the difficult or potentially unpopular decisions concomitant with
fulfilling the very public task they were elected to do--to make hard, principled, and accountable political and
policy decisions, even if these decisions are not always popular with voters. By playing the "blame deflection"
game, legislatures grant priority to their short-term interests (e.g., to garner electoral support by avoiding tough
and often unpopular decisions) at the expense of political accountability and responsibility.
Finally, the existence of an active, non-deferential constitutional court is a necessary, but not sufficient,
condition, for persistent judicial activism and the judicialization of mega-politics. Any way one looks at it,
questions such as the secular nature of Turkey's political system, the war in Chechnya, Israel's fundamental
definition as a "Jewish and democratic state," or the political future of Quebec and the Canadian federation, are
first and foremost political questions, not judicial ones. A political sphere conducive to the judicialization of
such purely political questions is therefore at least as significant to its emergence and sustainability as the *753
contribution of courts and judges. This insight highlights a "court-centric" fallacy common among critics of
judicial activism who often blame "power hungry" judges and "imperialist" courts for "expropriating" the
constitution, for being too assertive and excessively entangled with moral and political decision making, and
subsequently disregarding fundamental separation of powers and democratic governance principles. As the
examples discussed here illustrate, the portrayal of constitutional courts and judges as the major culprits in the
all-encompassing judicialization of politics worldwide is too simple a tale; the judicialization of mega-politics,
and the transition to juristocracy more generally, is first and foremost a political, not a juridical, phenomenon.
Through that prism it ought to be studied.
[FNa1]. Professor of Political Science & Law, University of Toronto, and Fellow, Center for Advanced Study in the
Behavioral Sciences, Stanford. I thank Tom Rowe and the editors of the Fordham Law Review for their editorial assistance,
as well as Mark A. Graber and Ayelet Shachar for their thoughtful comments on an earlier draft of this paper.
[FN1]. Alexis de Tocqueville, 1 Democracy in America 102-09 (Phillips Bradley ed. & trans., Vintage Books 10th ed. 1961)
(1835).
[FN2]. See, e.g., The Global Expansion of Judicial Power (C. Neal Tate & Torbjörn Vallinder eds., 1995); Ran Hirschl,
Towards Juristocracy: The Origins and Consequences of the New Constitutionalism (2004) [hereinafter Hirschl, Towards
Juristocracy]; The Judicialization of Politics in Latin America (Rachel Sieder et al. eds., 2005); Martin Shapiro & Alec Stone
Sweet, On Law, Politics, and Judicialization (2002); John Ferejohn, Judicializing Politics, Politicizing Law, 65 Law &
Contemp. Probs. 41 (2002); Ran Hirschl, Resituating the Judicialization of Politics: Bush v. Gore as a Global Trend, 15 Can.
J.L. & Juris. 191 (2002) [hereinafter Hirschl, Bush v. Gore]; Richard H. Pildes, The Supreme Court, 2003 Term: Foreword:
The Constitutionalization of Democratic Politics, 118 Harv. L. Rev. 29 (2004).
[FN3]. Rachel Sieder, Introduction to The Judicialization of Politics in Latin America, supra note 2, at 5.
[FN4]. See Niklas Luhmann, A Sociological Theory of Law (Elizabeth King & Martin Albrow trans., Routledge & Kegan
Paul 1985) (1972).
[FN5]. Jürgen Habermas, Law as Medium and Law as Institution, in Dilemmas of Law in the Welfare State 203-20 (Gunther
Teubner ed., 1986); Juridification of Social Spheres (Gunther Teubner ed., 1987).
[FN6]. See generally Alec Stone Sweet, Governing with Judges: Constitutional Politics in Europe (2000); Alec Stone Sweet
& Thomas L. Brunell, Constructing a Supranational Constitution: Dispute Resolution and Governance in the European
Community, 92 Am. Pol. Sci. Rev. 63 (1998).
[FN7]. Henry Sumner Maine, Ancient Law (Transaction Publishers 2001) (1866).
[FN8]. See generally Max Weber, Economy and Society: An Outline of Interpretive Sociology (Guenther Roth & Claus
Wittich eds., Bedminster Press 1968) (1922).
[FN9]. See generally Emile Durkheim, The Division of Labor in Society (George Simpson trans., The Free Press 1964)
(1893).
[FN10]. Hirschl, Towards Juristocracy, supra note 2, at 103-18
[FN11]. Id.
16
[FN12]. See HCJ 5100/94 Pub. Comm. Against Torture in Isr. v. State of Isr. [1999] IsrSC 53(4) 817, 836, 838, 340.
[FN13]. Retrial for Peru Shining Path Rebel, BBC News, Nov. 21, 2002, http://news.bbc.co.uk/2/hi/americas/2497359.stm
(last visited Oct. 15, 2006).
[FN14]. See, e.g., A and others v. Sec'y of State for the Home Dep't, X and another v. Sec'y of State for the Home Dep't,
[2004] UKHL 56, [2005] 2 W.L.R. 87.
[FN15]. Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006).
[FN16]. See generally Charles R. Epp, The Rights Revolution: Lawyers, Activists, and Supreme Courts in Comparative
Perspective (1998).
[FN17]. See Stuart A. Scheingold, The Politics of Rights: Lawyers, Public Policy, and Political Change (2d ed. 2004).
[FN18]. Id. at 34.
[FN19]. See Mary Ann Glendon, Rights Talk: The Impoverishment of Political Discourse (1991).
[FN20]. See Carlo Guarnieri & Patrizia Pederzoli, The Power of Judges: A Comparative Study of Courts and Democracy
(2002); Stone Sweet, supra note 6.
[FN21]. See, e.g., Legalization and World Politics (Judith Goldstein et al. eds., 2001); Cesare P.R. Romano, The Proliferation
of International Judicial Bodies: The Pieces of the Puzzle, 31 N.Y.U. J. Int'l L. & Pol. 709 (1999); Anne-Marie Slaughter,
Judicial Globalization, 40 Va. J. Int'l L. 1103 (2000).
[FN22]. See, e.g., Karen J. Alter, Establishing the Supremacy of European Law (2001); Stone Sweet, supra note 6; Joseph
H.H. Weiler, The Constitution of Europe: "Do the New Clothes Have an Emperor?" and Other Essays on European
Integration (1999).
[FN23]. Legalization and World Politics, supra note 21.
[FN24]. Hirschl, Towards Juristocracy, supra note 2, at 222-23.
[FN25]. Jeremy Waldron, Judicial Power and Popular Sovereignty, in Marbury Versus Madison: Documents and
Commentary 181, 195 (Mark A. Graber & Micheal Perhac eds., 2002).
[FN26]. See, e.g., Samuel Issacharoff et al., The Law of Democracy: Legal Structure of the Political Process (1998); Russell
A. Miller, Lords of Democracy: The Judicialization of "Pure Politics" in the United States and Germany, 61 Wash. & Lee L.
Rev. 587 (2004).
[FN27]. Pildes, supra note 2, at 33. Belgium's High Court banned the Flemish right-wing separatist Vlaams Blok Party in
November 2004. The party resurfaced as Vlaams Belang a few months later.
[FN28]. Courting Danger: Democracy in the Lap of the Judges, Economist, June 3, 2006, at 40.
[FN29]. Uribe Wins Colombia Court Ruling, Allowing Him to Seek Second Term, Bloomberg News Online, Oct. 19, 2005,
http://www.bloomberg.com/apps/news? pid=10000086&sid=aaT.v1TYrNZ0.
[FN30]. See Legal Resources Found., Justice in Zimbabwe (Report), http://
www.swradioafrica.com/Documents/RDC_report.htm (last visited Sept. 20, 2006).
[FN31]. See Chris Hogg, Taiwan Court to Rule On Election, BBC News Online, Nov. 4, 2004,
http://news.bbc.co.uk/2/hi/asia-pacific/3978921.stm.
[FN32]. See, e.g., Decision of the Ukrainian Constitutional Court of Dec. 3, 2004 (invalidating the presidential election
results of November 2004 and ordering a new election). For the English translation, see http://
www2.pravda.com.ua/en/archive/2004/december/3/5.shtml; see also Decision of the Ukrainian Constitutional Court of Dec.
24, 2004, available at http:// zakon.rada.gov.ua/cgi-bin/laws/main.cgi?nreg=v022p710%2D04 (regarding the constitutionality
of the Presidential Elections Act); Decision of the Ukrainian Constitutional Court of Dec. 26, 2004, available at http://
zakon.rada.gov.ua/cgi-bin/laws/main.cgi?nreg=n0119700%2D04 (responding to Victor Yanukoyvich's claim regarding the
violation of disabled voters' rights in the 2004 election).
[FN33]. See Italian Court Rules Prodi Election Winner, Guardian Unlimited, Apr. 19, 2006, available at
http://www.guardian.co.uk/italy/story/0,, 1756970,00.html.
[FN34]. The decision was released on September 4, 2006. See Mexico Court Rejects Fraud Claim, BBC News Online, Aug.
17
29, 2006, http:// news.bbc.co.uk/2/hi/americas/5293796.stm. For further discussion of Mexico's Federal Electoral Court, see
Stephen Zamora et al., Mexican Law 196-97 (2004).
[FN35]. See Bobb and Anor. [2006] UKPC 22 (Trin. & Tobago), available at
http://www.bailii.org/uk/cases/UKPC/2006/22.html; Madagascar Court Annuls Election, BBC News Online, Apr. 17, 2002,
http:// news.bbc.co.uk/2/hi/africa/1935247.stm.
[FN36]. See generally Richard Hasen, A Critical Guide to Bush v. Gore Scholarship, 7 Ann. Rev. Pol. Sci. 297 (2004);
Hirschl, Bush v. Gore, supra note2; Pildes, supra note 2.
[FN37]. On the demise of the "political question" doctrine in the United States, see generally Mark Tushnet, Law and
Prudence in the Law of Justiciability: The Transformation and Disappearance of the Political Question Doctrine, 80 N.C. L.
Rev. 1203 (2002).
[FN38]. Operation Dismantle v. The Queen, [1985] 1 S.C.R. 441.
[FN39]. See, e.g., Chaoulli v. Que. (Att'y Gen.), [2005] 1 S.C.R. 791 (holding that limits on the delivery of private health
care in Quebec violated Quebec's Charter of Human Rights and Freedoms). Three of the judges also ruled that the limits on
private health care violated section 7 of the Charter of Rights and Freedoms. See id. The decision could have significant
ramifications on health care policy in Canada, and may be interpreted as paving the way to a so-called "two-tier" health care
system.
[FN40]. See Russian Federation Constitutional Court's Ruling Regarding the Legality of President Boris Yeltsin's Degree To
Send Troops To [Chechnya], (Official Kremlin International News Broadcast July 31, 1995). English-language analysis of
the case is provided by William E. Pomeranz, Judicial Review and the Russian Constitutional Court: The Chechen Case, 23
Rev. Cent. & E. Eur. L. 9 (1997).
[FN41]. Russian Court: Chechen War Legal, United Press Int'l, July 31, 1995, available at Lexis UPI database; see also Paola
Gaeta, The Armed Conflict in Chechnya Before the Russian Constitutional Court, 7 Eur. J. Int'l L. 563 (1996).
[FN42]. HCJ 2056/04 Beit Sourik Vill. Council v. Gov't of Isr. [2005] IsrSC 58(5) 807, translated in 38 Isr. L. Rev. 83
(2005).
[FN43]. An English translation of this case is available in Constitutional Judiciary in a New Democracy: The Hungarian
Constitutional Court 322-32 (László Sólyom & Georg Brunner eds., 2000).
[FN44]. See id.
[FN45]. Corte Suprema de Justicia [CSJN], 26/10/2004, "Bustos, Alberto Roque et al. v. Estado Nacional et al. / amparo,"
available at http:// www.csjn.gov.ar (Arg.).
[FN46]. Ran Hirschl, Constitutionalism, Judicial Review, and Progressive Change: A Rejoinder to McClain and Fleming, 84
Tex. L. Rev. 471, 485-502 (2005).
[FN47]. See Certification of the Amended Text of the Constitution of the Republic of S. Afr. 1997 (2) SA 97 (CC);
Certification of the Constitution of the Republic of S. Afr. 1996 (4) SA 744 (CC) .
[FN48]. See Republic of Fiji Islands v. Prasad [2001] 1 LRC 665 (HC), [2002] 2 LRC 743 (CA).
[FN49]. See Nepal Corruption Panel Outlawed, BBC News, Feb. 13, 2006,
http://news.bbc.co.uk/2/hi/south_asia/4708472.stm.
[FN50]. Youngjae Lee, Law, Politics, and Impeachment: The Impeachment of Roh Moo-hyun from a Comparative
Constitutional Perspective, 53 Am. J. Comp. L. 403, 403 (2005).
[FN51]. Zafar Ali Shah v. Pervez Musharraf, Chief Executive of Pak., P.L.D. 2000 S.C. 869.
[FN52]. Id. at 1219.
[FN53]. Id.
[FN54]. Id. at 1219-23.
[FN55]. Id. at 1223.
[FN56]. Since 1990 Pakistan has known five regime changes, and the Pakistan Supreme Court has played a key role in each
of these radical transitions. See, e.g., Zafar Ali Shah v. Pervez Musharraf, Chief Executive of Pak., P.L.D. 2000 S.C. 869;
18
Benazir Bhutto v. President of Pak., P.L.D. 1998 S.C. 388; Muhammad Nawaz Sharif v. President of Pak., P.L.D. 1993 S.C.
473; Begum Nusrat Bhutto v. Chief of Army Staff, P.L.D. 1977 S.C. 657.
[FN57]. Azanian Peoples' Organization ("AZAPO") v. President of the Republic of S. Afr. 1996 (4) SA 672 (CC).
[FN58]. See, e.g., Herman Schwartz, The Struggle for Constitutional Justice in Post-Communist Europe (2000); Peter E.
Quint, Judging the Past: The Prosecution of East German Border Guards and the GDR Chain of Command, 61 Rev. Pol. 303
(1999).
[FN59]. See William Schabas, An Introduction to the International Criminal Court (Cambridge Univ. Press 2004) (2001).
[FN60]. See Rachel Kerr, The International Criminal Tribunal for the Former Yugoslavia: An Exercise in Law, Politics, and
Diplomacy (2004).
[FN61]. Id.
[FN62]. See infra notes92-105 and accompanying text.
[FN63]. See infra notes 67-71 and accompanying text.
[FN64]. See, e.g., Mohammed Ahmed Khan v. Shah Bano Begum, A.I.R. 1985 S.C. 945 (India).
[FN65]. For a discussion of the role of courts in Egypt, see Ran Hirschl, Constitutional Courts vs. Religious Fundamentalism:
Three Middle Eastern Tales, 82 Tex. L. Rev. 1819, 1829-33 (2004). For Malaysia, see Michael G. Peletz, Islamic Modern:
Religious Courts and Cultural Politics in Malyasia (2002).
[FN66]. See infra notes 83-91 and accompanying text.
[FN67]. An abbreviated English version of the ruling appears in Donald P. Kommers, The Constitutional Jurisprudence of the
Federal Republic of Germany 182-86 (1997); see also id. at 187-93 (discussing the National Unity Election Case, which deals
with the post-unification amalgamation of the different electoral systems of the two Germanies).
[FN68]. Grundgesetz [GG] [Constitution] art. 38 (F.R.G.), available at
http://www.bundestag.de/htdocs_e/info/germanbasiclaw.pdf.
[FN69]. Id. art. 20(2).
[FN70]. Kommers, supra note 67, at 185-86.
[FN71]. Id. at 182.
[FN72]. See Hirschl, supra note 65, at 1822-23.
[FN73]. Egypt Const. ch. I, art. 2, available at http:// www.egypt.gov.eg/english/laws/constitution/index.asp.
[FN74]. See Hatem Aly Labib Gabr, The Interpretation of Article Two of the Egyptian Constitution by the Supreme
Constitutional Court, in Human Rights and Democracy: The Role of the Supreme Constitutional Court of Egypt 217, 217
(Kevin Boyle & Adel Omar Sherif eds., 1996).
[FN75]. Hirschl, supra note 65, at 1823.
[FN76]. See Nathan J. Brown, Islamic Constitutionalism in Theory and Practice, in Democracy, the Rule of Law and Islam
491 (Eugene Cortan & Adel Omar Sherif eds., 1999).
[FN77]. Id. at 496.
[FN78]. Id.
[FN79]. Id. at 497.
[FN80]. President of al-Azhar Univ. v. President of the Republic (the Riba Case), No. 20 of the 1st judicial year (May 4,
1985), is discussed in, Frank E. Vogel, Conformity with Islamic Shari?a and Constitutionality Under Article 2: Some Issues
of Theory, Practice and Comparison, in Democracy, the Rule of Law and Islam, supra note 76, at 525, 534.
[FN81]. Wassel v. Minister of Education (the Niq?ab Case), No. 8 of the 17th judicial year (May 18, 1996), translated in 3
Yearbook of Islamic & Middle Eastern Law 177, 178-80 (Eugene Cotran & Chibli Mallat eds., 1996) (upholding the
constitutionality of a government decree that permitted persons responsible for female pupils below university level to
19
request that they cover their hair, provided that the covers did not hide their faces (i.e. that they wear a hijab (head cover) and
not a niqab (mask or full head cover)).
[FN82]. The new law allowed this divorce by court order (i.e., without the husband's consent) after a mandatory mediation
and reconciliation process failed. These new provisions effectively outlawed the abusive practice of men divorcing their
wives by simply pronouncing "I divorce thee" (talaq al-bid?a) three times, bypassing any efforts to mediate or reconcile
partners (talaq al-ghyabi). See Khul' Law Passes Major Test, Al-Ahram Weekly On-line, Dec. 19-25, 2002,
http://weekly.ahram.org.eg/2002/617/eg11.htm.
[FN83]. The Law of Return, 1970, S.H. 586 (Isr.), available at http:// www.knesset.gov.il/laws/special/eng/return.htm
(providing Jews with the right to "return" to Israel to take up citizenship, even if they have had no previous contact with the
state).
[FN84]. HCJ 264/87 Sepharadi Torah Guardians-Shas Movement v. Population Registrar [1989] IsrSC 43(2) 723, 731.
[FN85]. See HCJ 1031/93 Pessaro (Goldstein) et al. v. Minister of the Interior [1995] IsrSC 49(4) 661.
[FN86]. HCJ 5070/95 Working and Volunteering Women Movement vs. Minister of Interior [2002] IsrSC 56(2) 721.
[FN87]. See id.
[FN88]. See id.
[FN89]. See Yuval Yoaz, Court Recognizes Non-Orthodox Overseas Conversion of Israeli Residents, Haaretz, Jan. 4, 2005,
available at http:// www.haaretz.com/hasen/pages/ShArt.jhtml?
itemNo=559673&contrassID=1&subContrassID=1&sbSubContrassID=0&listSrc=Y.
[FN90]. Id.
[FN91]. Compare this clear manifestation of the judicialization of foundational collective identity questions (the third face of
judicialization) with more routine aspects of the very same identity questions (the second face of judicialization): Fred is
converted to Judaism by an Orthodox Rabbi, who, because he is tired that day, makes a procedural mistake or two during the
process. One week later, the Rabbi realizes his error and insists that Fred goes through the proper procedure. Fred says no and
the debate reaches the courts. Although the legal struggle involves aspects of the "who is a Jew" question, these are incidental
to the mainly procedural question at stake. I thank Mark Graber for clarifying this point for me.
[FN92]. Reference re Secession of Que., [1998] 2 S.C.R. 217; see also A.G. (Que.) v. Que. Protestant Sch. Bds., [1984] 2
S.C.R. 66 (affirming the unconstitutionality of provisions regarding English instruction); Reference re Objection to
Resolution to Amend the Constitution, [1982] 2 S.C.R. 793 (holding that Quebec did not have the power to veto
constitutional amendments affecting the legislative competence of Quebec); Re Resolution to Amend the Constitution,
[1981] 1 S.C.R. 753 (holding that from a purely legal standpoint the Houses of the Parliament of Canada could request the
amendment of the Canadian Constitution unilaterally, although a constitutional convention exists that requires substantive
consent by the provinces).
[FN93]. Reference re Secession of Que., [1998] 2 S.C.R. at 228.
[FN94]. Id. at 259-60.
[FN95]. Id. at 293.
[FN96]. Id.
[FN97]. Id. at 247-63.
[FN98]. Id. at 248.
[FN99]. Id. at 259-61.
[FN100]. Id. at 265.
[FN101]. Id. at 271.
[FN102]. Id. at 277.
[FN103]. Id. at 282.
[FN104]. Clarity Act, 2000 S.C., ch. 26 (Can.). This Act "give[s] effect to the requirement for clarity as set out in the opinion
20
of the Supreme Court of Canada in the Quebec Secession Reference." Id.
[FN105]. Id.
[FN106]. Guarnieri & Pederzoli, supra note 20, at 160-82.
[FN107]. Ferejohn, supra note 2.
[FN108]. Stefan Voigt & Eli M. Salzberger, Choosing Not to Choose: When Politicians Choose to Delegate Powers, 55
Kyklos 289, 294-95 (2002).
[FN109]. See generally Mark A. Graber, The Nonmajoritarian Difficulty: Legislative Deference to the Judiciary, 7 Stud. in
Am. Pol. Dev. 35 (1993).
[FN110]. See generally The Global Expansion of Judicial Power, supra note 2.
[FN111]. See generally Yoav Dotan & Menachem Hofnung, Legal Defeats-Political Wins: Why Do Elected Representatives
Go to Court?, 38 Comp. Pol. Stud. 75 (2005).
[FN112]. See generally Joseph F. Fletcher & Paul Howe, Public Opinion and Canada's Courts, in Judicial Power and
Canadian Democracy 255-96 (Paul Howe & Peter Russell eds., 2001); James L. Gibson et al., On the Legitimacy of High
Courts, 92 Am. Pol. Sci. Rev. 343 (1998).
[FN113]. Gregory Caldeira et al., The Supreme Court and the U.S. Presidential Election of 2000, 33 British J. Pol. Sci. 535
(2003).
[FN114]. Hirschl, Towards Juristocracy, supra note 2.
[FN115]. Ran Hirschl, Three Middle Eastern Tales, supra note 65, at 1819.
[FN116]. Id.
[FN117]. Id.
[FN118]. See, e.g., Gary J. Jacobsohn, The Permeability of Constitutional Borders, 82 Tex. L. Rev. 1763 (2004).
[FN119]. See, e.g., Howard Gillman, How Political Parties Can Use the Courts to Advance Their Agendas: Federal Courts in
the United States, 1875-1891, 96 Am. Pol. Sci. Rev. 511 (2002).
[FN120]. Keith E. Whittington, "Interpose Your Friendly Hand": Political Supports for the Exercise of Judicial Review by
the United States Supreme Court, 99 Am. Pol. Sci. Rev. 583 (2005).
[FN121]. F.L. Morton, The Effect of the Charter of Rights on Canadian Federalism, 25 Publius 173 (1995); see also Leslie
Friedman Goldstein, Constituting Federal Sovereignty: The European Union in Comparative Context (2001).
[FN122]. Hirschl, Towards Juristocracy, supra note 2, at 211-23.
[FN123]. See Lisa Conant, Justice Contained: Law and Politics in the European Union (2002); Gerald N. Rosenberg, The
Hollow Hope: Can Courts Bring About Social Change? (1991); Geoffrey Garrett et al., The Politics of Legal Integration in
the European Union, 49 Int'l Org. 171 (1995).
[FN124]. See Terri Jennings Peretti, In Defense of a Political Court (1999); Gerald Rosenberg, Judicial Independence and the
Reality of Political Power, 54 Rev. Pol. 369 (1992).
[FN125]. Muhammed Ahmad Kan v. Shah Bano Begum, A.I.R. 1985 S.C. 945; see also Ayelet Shachar, Multicultural
Jurisdictions: Cultural Differences and Women's Rights 81-83 (2001).
[FN126]. See Danial Latifi v. Union of India, A.I.R. 2001 S.C. 3958.
[FN127]. Mabo v. Queensland II (1992) 175 C.L.R. 1.
[FN128]. The Wik Peoples v. Queensland (1996) 187 C.L.R. 1.
[FN129]. Chng Suan Tze v. Minister of Home Affairs [1988] 1 S.L.R. 132 (Sing.).
[FN130]. See Gordon Silverstein, Globalization and the Rule of Law: "A Machine that Runs of Itself?," 1 Int'l J. of Const. L.
427, 439-440 (2003); Francis T. Seow, The Politics of Judicial Institutions in Singapore, available at, http://
21
unpan1.un.org/intradoc/groups/public/documents/APCITY/UNPAN002727.pdf.
[FN131]. See Derek Matyszak, Creating a Complaint Judiciary in Zimbabwe, in Appointing Judges in an Age of Judicial
Power Dilemmas of Law in the Welfare State 203, 340-44 (P. Russell ed., 2006).
[FN132]. Id. at 345.
[FN133]. Broken Promises, Economist, Apr. 22, 2006, at 48-49. Egypt has a history of political interference with the judicial
sphere. The most blatant example is the 1969 "massacre of the judiciary," where more than 200 senior judicial personnel
were dismissed on "over-independence" grounds by a presidential decree.
[FN134]. Human Rights Watch, Questions and Answers about Venezuela's Court-Packing Law (July 2004),
http://hrw.org/backgrounder/americas/venezuela/2004/.
[FN135]. Id.
[FN136]. Id.
[FN137]. Id.
[FN138]. The court was dismissed by President Lucio Gutierrez for the first time in December 2004. See Ecuador Dismisses
Supreme Court, BBC News, Dec. 9, 2004, http://news.bbc.co.uk/1/hi/world/americas/4082521.stm. Having been restored in
January 2005, the court was dismissed for a second time in April 2005. See A Coup by Congress and the Street, Economist,
Apr. 23, 2005, at 37; Ecuador's Congress Backs Court Move, N.Y. Times, Apr. 19, 2005, at A13.
[FN139]. See Justice and the Judge, Economist, July 22, 2006, at 40.
[FN140]. See Another Wig Falls, Economist, Oct. 8, 2005, at 46.
[FN141]. Id.
[FN142]. Kim Lane Schepple, The New Hungarian Constitutional Court, 8 E. Eur. Const. Rev. 81 (1999).
[FN143]. Lee Epstein et al., The Role of Constitutional Courts in the Establishment and Maintenance of Democratic Systems
of Government, 35 Law & Soc'y Rev. 117 (2001).
[FN144]. Gretchen Helmke, Courts Under Constraints: Judges, Generals, and Presidents in Argentina (2005).
[FN145]. Georg Vanberg, The Politics of Constitutional Review in Germany (2005).
[FN146]. See generally J. Mark Ramseyer & Eric B. Rasmusen, Why Are Japanese Judges So Conservative in Politically
Charged Cases? 95 Am. Pol. Sci. Rev. 331 (2001).
[FN147]. Hirschl, Towards Juristocracy, supra note 2.
[FN148]. On the inexplicable divide between grand constitutional theory and the study of real-life constitutional law and
politics, see generally Barry Friedman, The Politics of Judicial Review, 84 Tex. L. Rev. 257 (2005); Mark A. Graber,
Constitutional Politics and Constitutional Theory: A Misunderstood and Neglected Relationship, 27 Law & Soc. Inquiry 309
(2002).
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