Towards Juristocracy: The Origins and Consequences of the New Constitutionalism
| Author | Vlad Perju |
| Published date | 01 November 2005 |
| DOI | http://doi.org/10.1111/j.1468-2230.2005.00572_3.x |
| Date | 01 November 2005 |
Ran Hirschl,Towards Juristocracy:The Origins and Consequences of the New
Constitutionalism,Cambridge and London: Harvard University Press, 2004,
294pp, hb $49.95.
Many of the problems faced by constitutional democracies are said to revolve
around the tension between constitutionalism and democracy. InTo w a r d s J u r i s t o c -
racy, Ran Hirschl worries about constitutionalism becoming the dominant part-
ner i n this relationship. Hirschl uses the term ‘new constitutionalism’ to describe
this emergingglobal arrangement, which he sees as the outcome of a‘transforma-
tion in the relations betwee n courts and representative institutions though the
enactment of bil ls of rights that has swept the world during the past few decades’
(p 217). Hirschl draws on political science to argue that an overblown constitu-
tional realm that gives judges a say about almost every aspect of social life is at
odds withthe vision of a democratic societycommitted tosocial justice and mate-
rial redistribution. Bydrawing on the experiences of a numberof constitutional
democracies ^ Israel, Canada,South Africa, NewZealand and the UnitedStates ^
he sets out to arguethat an institutional arrangement that allows courts to strike
down legislative measures in the name of individual rights is, at best, a mixed
blessing. He contendsthat the process ofconstitutionalisation is a reaction of poli-
tical and economic elites to democracy’s threat to breakentrenched social hierar-
chy. ‘The constitutionalization of rights is . . . not a re£ection of a genuinely
progressive revolution in a polity; rather, it is evidence that the rhetoric of rights
and judicial reviewhas been appropriated bythreatened elites tobolster their own
position in the polity’ (p 12).
The thesis so stated is important, but not particularlyoriginal.What is original
is how Hirschl attempts tovalidate it. Fluent in both law and political science, he
combines quantitative analysis (egi n his discussion of the data regarding negative
versus positive rights in constitutional adjudication at pp 106 -107) with close
attention to the development of legal doctrine (eg the analysis of criminal due
process rights and workers’ rights in Chapter 4). Apart from breaking with the
abstract rhetoric that has come to dominate contemporary debates about consti-
tutionalism, this empirical analysis demonstrates that the constitutionalisation of
rights is an almostinsuperableobstacle in the ¢ghtfor social justice.The data show
courts to be reluctant ‘to diminish the stark disparities in life conditions within
and among polities in the neoliberal age’ (p 155). Hirschl presents this as a knock-
down argument against those who naivelybelieve that ascribing limitless power
to the judiciary is one way to ¢ght social inequality. Put succinctly, if social justice
is the desired goal, Hirschl’s evidenceshows that the constitutionalizationof rights
is not the means to achieve it.
But why, exactly, should the constitutionalisation of rightsbe i nimical to social
justice?In answering this question, Hirschl engages in the sortof causal analysis so
common in political science. First of all, judges are given power only when poli-
tical andeconomic elites haveno other way tocling on to their diminishingi n£u-
ence than byrelinquishing direct control in favor of less direct but equallyreliable
means. As the recent constitutional experiences of Israel and Canada purportedly
show, judges possess both publiccredibility and skill in preserving the hegemony
of those to whom they owe their power. ‘Judicial empowerment through
Reviews
103 8 rThe Modern LawReview Limited 2005
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