Towards Juristocracy: The Origins and Consequences of the New Constitutionalism.

• Author: Moure, Daniel
• Position: Book Review

Ran Hirschl, Towards Juristocracy: The Origins and Consequences of the New Constitutionalism (Cambridge, Mass.: Harvard University Press, 2004). Pp. 286.

"First they ignore you, then they laugh at you, then they fight you, then you win."

Mahatma Gandhi

So it was in the fight for Indian independence. But for scholars who argue against prevailing orthodoxies, the process tends to be somewhat more succinct. Mainstream academics tend to be too polite to laugh at those who challenge their most precious habits of thought, but they also often find themselves unable to deal with such challenges. For radical scholars, then, the process can often be summarized as follows: "First they ignore you, period."

Such may be the fate of Ran Hirschl's exceptional book, Towards Juristocracy, which examines the recent constitutional revolutions in Canada, Israel, New Zealand, and South Africa. As late as 1942, the judiciary could declare a national law void for unconstitutionality in only two countries--the United States and Norway. (1) In a third--Mexico--it could declare an unconstitutional law inapplicable to a specific individual. (2) Since the mid-twentieth century, as Hirschl notes, power has been transferred from representative institutions to judiciaries in more than eighty countries (1), and the pace has accelerated with the spread of the new constitutionalism. Hirschl tests mainstream explanations for this transfer of power against empirical data and finds them lacking. Standard evolutionist and functionalist approaches, for example, respectively assume that constitutionalization is inevitable in democratic societies and is intended to overcome institutional inefficiencies. But these approaches inadequately explain the significant differences in the timing, scope, and nature of this transfer of power between states (31-38). In place of such accounts, Hirschl develops his "hegemonic preservation thesis," according to which this transfer of power results from an interplay between the strategic interests of three key groups: political elites, economic elites, and judicial elites.

Hirschl assumes that these elites are strategic decision makers who attempt to maintain or enhance their dominant positions (43). Power will most likely be transferred to the judiciary, therefore, when these groups believe that such a transfer will enhance or prevent the erosion of their power. For judicial elites, particularly the high court, the benefits are obvious--increased prestige and decision-making power (47-48). The benefits for economic elites are also easy to discern: the constitutional protection of private property safeguards them against what Alexander Hamilton once referred to as "the democratical jealousy of the people." (3) Even when the constitution does not explicitly protect private property, the prevalent emphasis on individual rights and negative liberties tends to favour economic elites (46-47). As for political elites, it seems counterintuitive for them to delegate their power voluntarily. And so it is, except when their traditional control over electoral politics is threatened by the rising influence of peripheral groups. At such times, political elites may conclude that they can protect their policy preferences more effectively by transferring control to the judiciary, particularly when they control the judicial appointment process and are relatively certain that judicial decisions will serve their interests (43-44).

To test his thesis, Hirschl examines the origins, actual impact, and political consequences of the recent constitutional revolutions in Canada, Israel, New Zealand, and South Africa, and he focuses on these countries for several reasons. All four countries are characterized by...