The Politico-Legal Dynamics of Judicial Review
Professor Theunis Roux tells us about his recently published book, ‘The Politico-Legal Dynamics of Judicial Review - A Comparative Analysis‘.
Tell us a little bit about the book.
The central aim of the book is to direct attention away from slice-in-time conceptions of judicial politics (as separation-of-powers games or policy dialogues) towards the slower-moving, macro-social process through which conceptions of the law/politics relation evolve and change character over time. To accomplish this redirection, the book draws on two bodies of literature that have not enjoyed all that much attention in comparative constitutional law and politics to date. The first is the historical institutionalist approach to judicial review which has been used in longitudinal studies of the US Supreme Court, but which has thus far not been deployed comparatively. The second is a subfield of comparative politics – Comparative Historical Analysis (or CHA) – which has developed sophisticated methods for the comparative study of institutional change, but which has thus far not been applied to judicial review, despite the obvious implications it has for our understanding of this institution. In bringing those two approaches together, the book demonstrates that societal conceptions of the law/politics relationship influence the form that judicial review takes (how it is institutionalised) and are in turn influenced by judicial review as this institution begins to function. While this process is different for each country, we can distinguish four ideal-typical forms of law/politics interaction that capture the main conceptual possibilities: authoritarian and democratic legalism, and authoritarian and democratic instrumentalism. After setting out these ideal types, the book shows through in-depth case studies of Australia, India and Zimbabwe how societal conceptions of the law/politics relationship have shaped and been shaped by judicial review. It then conducts a medium-N comparative analysis of ten additional countries to reveal the causal mechanisms through which these conceptions consolidate, incrementally evolve and occasionally transform. The book’s main finding is that the slower-moving, macro-social process it identifies is relatively independent of the formal constitution, on the one hand, and of everyday constitutional politics, on the other. The concluding chapter spells out the implications of this finding for constitutional design, public impact litigation, and the moral legitimacy of judicial review.
What inspired you to take up this project?
My thinking on this topic began many years ago, in 1998, on reading Karl Klare’s paper on ‘transformative constitutionalism’ in the South African Journal on Human Rights. In this paper, Klare argued that the fulfilment of the 1996 South African Constitution’s transformational promise required a constitutional-cultural change from a formalist conception of law’s authority to a more American-style acceptance of judicial review as an inevitably political institution. I thought at the time that there was something not quite right about that argument, both as a matter of judicial posture and as a matter of the feasibility of effecting such a radical constitutional-cultural change. I had one go at working through my misgivings in my book on the Chaskalson Court (The Politics of Principle: The First South African Constitutional Court, 1995-2005 (Cambridge University Press, 2013)). This book is my second attempt, from a more expansive, comparative perspective.
Whose work was influential on you throughout the course of the project?
In addition to responding to Klare, I have found the work of historical institutionalist scholars in the US very inspirational (Howard Gillman, Mark Graber, Keith Whittington, Barry Friedman and, even though he doesn’t identify as such, Bruce Ackerman). Halfway through the project, Nick Cheesman at the Australian National University said to me: ‘you had better read KKV’ (King, Keohane and Verba on Designing Social Inquiry). Like a lot of people, I found their attempt to fit the square peg of qualitative social science research into the round hole of a quantitative social science understanding of research design a little unconvincing. But Nick’s suggestion got me on to reading James Mahoney, Paul Pierson and Kathleen Thelen. I discovered, initially to my alarm, and then to my relief, that I had built, more or less from the ground up, what is commonly known in CHA as a typological theory. After that, at a late stage of the project, I began reading scholars who work specifically on ideational as opposed to formal institutional change (like Mark Blyth, for example). I was still discovering new work I might have used at the very end of the project, but I had to draw a line somewhere – not least because BORIS, my university’s wonderfully named research output quantification system, needed to be fed (or at least thrown some scraps to keep its tummy from rumbling).
What challenges did you face in writing the book?
The main challenge was to convert myself from an academic lawyer into a political scientist, or at least to learn enough about the theoretical frameworks and methodologies I was drawing on not to embarrass myself too horribly. I probably needn’t have worried. As Ran Hirschl said to me, serious political scientists likely won’t read my book anyway. Again, I don’t know whether to be relieved or sad about that.
What do you hope to see as the book’s contribution to academic discourse and to constitutional or public law more broadly?
I think I can just refer here to what I said earlier about directing attention away from slice-in-time conceptions of judicial politics to slower-moving, macro-social processes. Even if people don’t agree with my argument or are unconvinced by my methods, I hope at least to have demonstrated that there are a range of methodologies in comparative politics that we can use in the study of judicial review.
I have started a new book called Dancing in Babel’s Tower: Interdisciplinary Synergies in Comparative Constitutional Law and Politics (expressions of interest from publishers welcome!) The aim of this book is to examine the feasibility of interdisciplinary research across law and social science in the context of our field (however we define it). I distinguish between a ‘benign toleration’ approach to interdisciplinarity and a ‘critical engagement’ model. I then analyse a range of topics, such as judicial independence and judicial empowerment, where academic lawyers and social scientists appear to be speaking different languages, but where it may be possible to discover the synergies referred to in the title.
There is a 20% discount on the book. Buyers purchasing the book from Cambridge.org, can use the code ROUX2018 to access the discount. The code expires on 2 August 2019.
Theunis Roux is Professor of Law at the University of New South Wales in Sydney.
Order this book here.