Towards Juristocracy

Author: Ran Hirschl
Publisher: Harvard University Press
ISBN: 9780674038677
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In countries and supranational entities around the globe, constitutional reform has transferred an unprecedented amount of power from representative institutions to judiciaries. The constitutionalization of rights and the establishment of judicial review are widely believed to have benevolent and progressive origins, and significant redistributive, power-diffusing consequences. Ran Hirschl challenges this conventional wisdom. Drawing upon a comprehensive comparative inquiry into the political origins and legal consequences of the recent constitutional revolutions in Canada, Israel, New Zealand, and South Africa, Hirschl shows that the trend toward constitutionalization is hardly driven by politicians' genuine commitment to democracy, social justice, or universal rights. Rather, it is best understood as the product of a strategic interplay among hegemonic yet threatened political elites, influential economic stakeholders, and judicial leaders. This self-interested coalition of legal innovators determines the timing, extent, and nature of constitutional reforms. Hirschl demonstrates that whereas judicial empowerment through constitutionalization has a limited impact on advancing progressive notions of distributive justice, it has a transformative effect on political discourse. The global trend toward juristocracy, Hirschl argues, is part of a broader process whereby political and economic elites, while they profess support for democracy and sustained development, attempt to insulate policymaking from the vicissitudes of democratic politics.

Towards Juristocracy

Author: Ran Hirschl
Publisher:
ISBN: 9780674025479
Format: PDF, Kindle
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Ran Hirschl here argues that, whereas judicial empowerment through constitutionalization has a limited impact on advancing progressive notions of distributive justice, it has a transformative effect on political discourse.

Towards Juristocracy

Author: Ran Hirschl
Publisher: Belknap Press
ISBN: 9780674012646
Format: PDF, Mobi
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Ran Hirschl argues that whereas judicial empowerment through constitutionalization has a limited impact on advancing progressive notions of distributive justice, it has a transformative effect on political discourse.

Constitutional Theocracy

Author: Ran Hirschl
Publisher: Harvard University Press
ISBN: 0674059379
Format: PDF, Docs
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In this ground-breaking book, renowned constitutional scholar Ran Hirschl describes “constitutional theocracy,” a new, hybrid form of government that has emerged from an overlapping of two parallel trends during the 20th century: the rise in political religion on the one hand and the spread of constitutional forms of government to most countries in the world on the other. Hirschl delivers two blockbuster theses: That in most constitutional theocracies, 1) courts are the primary secular agents of government, and 2) the electorate usually has a choice between a secular party that is against redistribution of wealth and a more theological party that supports redistribution. This last thesis, especially, will be news to many of the book’s American readers, who are accustomed to a theological politics stridently opposed to redistribution.

Comparative Matters

Author: Ran Hirschl
Publisher: Oxford University Press, USA
ISBN: 0198714513
Format: PDF
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Through an extensive exploration of comparative constitutional endeavours past and present, near and far, Ran Hirschl shows how attitudes towards engagement with the constitutive laws of others reflect tensions between particularism and universalism as well as competing visions of who 'we' are as a political community. Drawing on insights from social theory, religion, history, political science, and public law, Hirschl argues for an interdisciplinary approach tocomparative constitutionalism that is methodologically and substantively preferable to merely doctrinal accounts. The future of comparative constitutional studies, he contends, lies in relaxing thesharp divide between constitutional law and the social sciences.

Governing with Judges

Author: Alec Stone Sweet
Publisher: Oxford University Press
ISBN: 0198297300
Format: PDF, ePub
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Constitutional Politics in Europe: Governing with Judges elaborates a theory of constitutional politics, the process through which the discursive practices and techniques of constitutional adjudication come to structure the work of governments, parliaments, judges, and administrators. Focusingon the cases of France, Germany, Italy, Spain, and the European Union, the book examines the sources and consequences of the pan-European movement to confer constitutional review authority on a new governmental institution, the constitutional court. Detailed case studies illustrate how and to whatextent legislative processes have been placed under the influence of constitutional judges. In a growing number of policy domains, these judges function as powerful, adjunct legislators. As constitutional courts have consolidated their position as authoritative interpreters of the constitutionallaw, and especially of human rights provisions, the work of the judiciary, too, has gradually been constitutionalised. Today, ordinary judges seek to detect violations of the constitution in their application of the various codes, and to rewrite statutes that they deem unconstitutional.Constitutional politics have not only provoked the demise of traditional notions of parliamentary sovereignty, they have organized profound transformations in the very nature of European governance. Stone Sweet argues that constitutional adjudication constructs complex causal linkages between rule systems and normativity, on the one hand, and the strategic behaviour of individuals, on the other. The theory constitutes a novel synthesis of normative and rational approaches to politics. Thebook also addresses central questions raised by a wide range of ongoing theory projects, including the 'new institutionalism,'rational choice, principal-agent theories of delegation, and the new constitutionalism in Continental legal theory.

Weak Courts Strong Rights

Author: Mark Tushnet
Publisher: Princeton University Press
ISBN: 069114320X
Format: PDF, Docs
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Unlike many other countries, the United States has few constitutional guarantees of social welfare rights such as income, housing, or healthcare. In part this is because many Americans believe that the courts cannot possibly enforce such guarantees. However, recent innovations in constitutional design in other countries suggest that such rights can be judicially enforced--not by increasing the power of the courts but by decreasing it. In Weak Courts, Strong Rights, Mark Tushnet uses a comparative legal perspective to show how creating weaker forms of judicial review may actually allow for stronger social welfare rights under American constitutional law. Under "strong-form" judicial review, as in the United States, judicial interpretations of the constitution are binding on other branches of government. In contrast, "weak-form" review allows the legislature and executive to reject constitutional rulings by the judiciary--as long as they do so publicly. Tushnet describes how weak-form review works in Great Britain and Canada and discusses the extent to which legislatures can be expected to enforce constitutional norms on their own. With that background, he turns to social welfare rights, explaining the connection between the "state action" or "horizontal effect" doctrine and the enforcement of social welfare rights. Tushnet then draws together the analysis of weak-form review and that of social welfare rights, explaining how weak-form review could be used to enforce those rights. He demonstrates that there is a clear judicial path--not an insurmountable judicial hurdle--to better enforcement of constitutional social welfare rights.

Constitutional Democracy

Author: Walter F. Murphy
Publisher: JHU Press
ISBN: 9780801884702
Format: PDF
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In this engaging and provocative work, Walter F. Murphy combines a lifetime's study of constitutions and democracy with traditional storytelling to answer fundamental questions about constitutional democracy: How is it created? How is it maintained? How can it be adapted to changing circumstances?

Courts in Latin America

Author: Gretchen Helmke
Publisher: Cambridge University Press
ISBN: 1139497162
Format: PDF, ePub, Docs
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To what extent do courts in Latin America protect individual rights and limit governments? This volume answers these fundamental questions by bringing together today's leading scholars of judicial politics. Drawing on examples from Argentina, Brazil, Chile, Mexico, Colombia, Costa Rica and Bolivia, the authors demonstrate that there is widespread variation in the performance of Latin America's constitutional courts. In accounting for this variation, the contributors push forward ongoing debates about what motivates judges; whether institutions, partisan politics and public support shape inter-branch relations; and the importance of judicial attitudes and legal culture. The authors deploy a range of methods, including qualitative case studies, paired country comparisons, statistical analysis and game theory.

The Oxford Handbook of Comparative Constitutional Law

Author: Michel Rosenfeld
Publisher: OUP Oxford
ISBN: 0191640174
Format: PDF, Docs
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The field of comparative constitutional law has grown immensely over the past couple of decades. Once a minor and obscure adjunct to the field of domestic constitutional law, comparative constitutional law has now moved front and centre. Driven by the global spread of democratic government and the expansion of international human rights law, the prominence and visibility of the field, among judges, politicians, and scholars has grown exponentially. Even in the United States, where domestic constitutional exclusivism has traditionally held a firm grip, use of comparative constitutional materials has become the subject of a lively and much publicized controversy among various justices of the U.S. Supreme Court. The trend towards harmonization and international borrowing has been controversial. Whereas it seems fair to assume that there ought to be great convergence among industrialized democracies over the uses and functions of commercial contracts, that seems far from the case in constitutional law. Can a parliamentary democracy be compared to a presidential one? A federal republic to a unitary one? Moreover, what about differences in ideology or national identity? Can constitutional rights deployed in a libertarian context be profitably compared to those at work in a social welfare context? Is it perilous to compare minority rights in a multi-ethnic state to those in its ethnically homogeneous counterparts? These controversies form the background to the field of comparative constitutional law, challenging not only legal scholars, but also those in other fields, such as philosophy and political theory. Providing the first single-volume, comprehensive reference resource, the Oxford Handbook of Comparative Constitutional Law will be an essential road map to the field for all those working within it, or encountering it for the first time. Leading experts in the field examine the history and methodology of the discipline, the central concepts of constitutional law, constitutional processes, and institutions - from legislative reform to judicial interpretation, rights, and emerging trends.