I’m back from Asia! I’ll have more pictures on my photo website soon. In the meantime, here is a short book review of a book I finished on my flight:
In Towards Juristocracy: The Origins and Consequences of the New Constitutionalism, Hirscl tries to explain not just why countries adopt judicial review, but also when. This is important, because a sufficient theory about the adoption of judicial review must account for the timing. As such, he selects three countries (Canada, New Zealand, and Israel) that did not undergo an obvious political revolution or regime change at the time of their constitutionalisation (a fourth, South Africa, fits the more common pattern of constitutionalism following a democratic transition).
Hirschl’s thesis – the hegemonic preservation theory – is that political, economic, and judicial elites adopt constitutional review in order to preserve their (often neoliberal) policy preferences in the face of mounting opposition. He analyzes the history of constitutionalisation in his sample countries and shows how changing political and demographic domestic trends, such as immigration, threatened the policies of current elites. He also scrutinizes court opinions, particularly on criminal procedure, privacy, and socio-economic rights, to show how they better match elite neoliberal policy preferences than notions of “progressive” jurisprudence.
I found the hegemonic preservation theory compelling, but felt Towards Juristocracy left a few questions open. First, it does not explain variations between elite policy preferences and the final outcome of constitutions. For example, the Canadian Charter does not provide strong protection for property rights, a key element of neoliberal thought. Likewise, the South African Supreme Court has adjudicated socio-economic rights, albeit to a limited degree. To what extent do the negotiations and power dynamics amongst elites and rising political forces affect hegemonic preservation theory? Is there a theory to predict how much of the elite’s preferences will be preserved through the process of constitutionalization?
This is a good book to read alongside Tom Ginsburg Judicial Review in New Democracies: Constitutional Courts in Asian Cases. It provides plenty to ponder. I’d be interested in more studies of hegemonic preservation theory in developing countries outside the commonwealth/British legal family.