Editors’ note: this post features a book review by Dr. Zim Nwokora of Theunis Roux latest book The Politico-Legal Dynamics of Judicial Review: A Comparative Analysis (Cambridge: Cambridge University Press, 2018). For further information on the book you can read our author interview with Theunis Roux, published on this blog on 26 September 2018, here.
The Politico-Legal Dynamics of Judicial Review is an ambitious, thought-provoking and carefully researched contribution to the literatures on judicial review and methodology in comparative constitutional law. Its central concept is the “judicial review regime” (henceforth JRR), which is the term Roux uses to describe the bundle of “legitimating ideas about the law/politics relation” (p. 3). JRRs are a feature of countries with strong-form judicial review, that is, where judges make decisions on public policy matters that are binding on other governmental actors. This system “thrusts the judiciary into the center of politics” (p. 1).
Motivating the study is the question: what determines the outcomes of judicial review in this setting? This question has often been tackled within a game-theoretic framework in which judges and politicians engage in a series of actions and counter-actions based on expectations about each other’s behaviour. But a problem with this way of thinking, the book argues, is its neglect of the context that structures these interactions. In particular, how these games play out depends on a society’s JRR because it determines the ideational resources available to legal and political actors when they make claims for authority. The differences across JRRs can be reduced to two fundamental dimensions: first, whether (or not) there is a commitment to the separability of law from politics; and secondly, whether (or not) political power is rooted in democratic practices.
Using these dimensions, Roux identifies four JRR ideal types. In a system of democratic legalism, as exemplified by Australia, law’s authority is grounded in claims about the capacity of judges to reason through specialised legal techniques, and thus differently from politicians whose authority emanates from a popular mandate secured through free and fair elections. Under democratic instrumentalism, political power is again derived from elections and multiparty competition but law’s authority reflects a widespread acceptance of the political nature of judgments, with judges embedded in political debates and therefore likely to take account of the policy consequences of their decisions. The present-day JRR in the United States corresponds to this type.
Under authoritarian instrumentalism, law operates as an extension of authoritarian rule so judges are not independent of politicians but rather subordinates who implement political policies. For example, the law/politics relation in Myanmar has traditionally cast law “not as a counterweight to political power, but as the means through which power holders would ensure an orderly society founded on the traditional values of ‘stillness’ and ‘calmness’” (p. 267). The JRRs of Singapore and Zimbabwe (for most of its history) correspond to the peculiar arrangement that is authoritarian legalism, where public commitment to the separation of law and politics is put in the service of an authoritarian regime. As a consequence, judicial review may be permitted across a wide sweep of economic and social issues while law’s authority is suppressed in the politically sensitive areas where it could threaten the authoritarian elite.
JRRs are sticky, in the sense that they tend to persist, but they are certainly not fixed. Thus the notion of JRR-change—when a society shifts from one JRR type to another or, more modestly, between the subtypes of a type—is one of the central themes of the book. The book explores JRRs and JRR-change in a variety of countries. The United States provides the main backdrop for the development of a theory of JRRs and JRR-change in Chapter 2. This is followed by detailed, chapter-length studies of Australia, India and Zimbabwe. In Chapter 6, the number of countries under examination is expanded through the inclusion of Germany, Colombia, Hungary, Indonesia, South Africa, Chile, Singapore, Egypt, Palestine and Myanmar. This set of 14 cases includes examples of all four JRR ideal types. Furthermore, the dynamics within these countries are sufficiently varied to enable the development, and some testing, of general conjectures about JRR development.
For example, based on examination of these cases, Roux argues that an exogenous shock—that is, a significant external event which challenges prevailing views of the law/politics relation—is necessary (but insufficient) for JRR transformation. Consider the United States, where JRR transformation in the early twentieth century (i.e., the Lochner era), from democratic legalism to democratic instrumentalism, was triggered by industrialisation and an accompanying need for stronger worker rights. Exogenous shocks were also followed by JRR transformation in other cases, including India, Zimbabwe and Chile. But, crucially, major shocks also occurred in Germany and Colombia, without JRR transformation resulting, leading Roux to conclude that transformation also requires “legal or political actors willing and able to drive it forward. Absent that, traditional conceptions of the law/politics relation provide a powerful ideational resource for legal and political actors with an interest in preserving them” (p. 294).
The book’s major, substantive contributions are observations such as these about JRRs in general and how they operate in particular countries. And, in combination with the theory developed in Chapter 2, they shed new light on the ideational context of judicial review. This is an important and distinctive contribution given the literature’s focus on strategic interactions between judges and politicians. Furthermore, The Politico-Legal Dynamics of Judicial Review also contributes to the methodology of comparative constitutionalism through its application of Comparative Historical Analysis (CHA), an approach largely developed by sociologists and political scientists which has not (yet) been widely used by comparative constitutional lawyers. As Roux shows, the CHA toolkit can be useful in several ways: it can help researchers select cases in a more rigorous way; it supplies concepts that help to structure comparative analyses; and since there is now a large body of empirical scholarship using these methods, its application can provide a basis for understanding the distinctive features of a particular institutional arena.
Overall, The Politico-Legal Dynamics of Judicial Review is a very impressive study. Its contributions will be of interest to comparative constitutional lawyers, comparative political scientists, and specialists in the politico-legal dynamics of the countries it studies.
Dr. Zim Nwokora is a Senior Lecturer in Politics and Policy Studies, Deakin University (Australia)
Suggested citation: Zim Nwokora, book review of ‘The Politico-Legal Dynamics of Judicial Review: A Comparative Analysis‘ by Theunis Roux, IACL-AIDC Blog (28 January 2019) https://blog-iacl-aidc.org/2019-posts/2019/1/27/book-review-the-politico-legal-dynamics-of-judicial-review-a-comparative-analysis