Law - New Constitutionalism 1, Hirschl.docx

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Western University
Political Science
Political Science 3201F/G
Dan Bousfield

THE NEW CONSTITUTIONALISM AND THE JUDICALIZATION OF PURE POLITICS WORLDWIDE – HIRSCHL  Over the last few decades the world has witnessed a profound transfer of power from representative institutions to judiciaries, whether domestic of supranational  One of the main manifestations of this trend has been the judicialization of politics – the ever-accelerating reliance on courts and judicial means for addressing core moral predicaments, public policy questions, and political controversies  In younger constitutional democracies that have established active judicial review mechanisms only in the last few decades. Meanwhile, transnational tribunals have become the main loci for coordinating policies at the global or regional level, from trade and monetary issues to labor standards and environmental regulations  The judicialization of politics now includes the wholesale transfer to the courts of some of the most pertinent and polemical political controversies a democratic polity can contemplate  With respect to the US, there is now hardly any public policy dilemma or political disagreement in the world of new constitutionalism that does not sooner or later become a judicial one  With a few notable exceptions, the judicialization of politics is often treated in a rather unrefined fashion as an organic by-product of the prevalence of rights discourse  Three broad categories of judicialization  1. The spread of legal discourse, jargon, rules and procedures into the political sphere and policy making forums and processes  2. Judicialization of public policy-making through ordinary administrative and judicial review  3. The judicialization of pure politics – the transfer to the courts of matters of an outright political nature and significance including core regime legitimacy and collective identity questions that define (and often divide) whole politics THREE FACES OF JUDICIALIZED POLITICS  The judicialization of politics is an often umbrella-like term referring to what are really three interrelated processes  The ascendancy of legal discourse and the popularization of legal argon are evident in virtually every aspect of modern life  Matters that had previously been negotiated in an informal or non-judicial fashion have now come to be dominated by legal rules and procedures  Inevitable institutional response to complex coordination problems deriving from the systemic need to adopt standardized legal norms and administrative regulations across member-states in an era of converging economic markets  Law reflects the evolving division of labor and interpersonal solidarity within a society  Contract Has become the major form of exchange among people  The prevalence of due process rights is also evident in cases dealing with process-light measures adopted to combat terrorism  Whereas the first type of judicialization may be described as judicialization of social relations, judicialization of this second type focuses mainly on procedural justice and formal fairness in decision-making processes  Bills of rights matter to the extent that a support structure for legal mobilization  The effectiveness of rights provisions in planting the seeds of social change in a given polity is largely contingent upon the existence of a support structure for legal mobilization and more generally, socio-cultural conditions that are hospitable for such judicialization from below  Another aspect of the second face of judicialization is the enforcement of procedural fairness through administrative review  Judicial involvement in public policy making is confined to procedural aspects, focusing on process rather than substance  The judicialization of public policy making in most constitutional democracies, either through rights jurisprudence or administrative review, comes close to virtually governing with judge  A third emerging class of the judicialization of politics is the reliance on courts and judges for dealing with hat we might call mega politics core political controversies that define and often divide whole polities  These emerging areas of judicialized politics expand the boundaries of national high- court involvement in the political sphere beyond the ambit of constitutional rights or federalism jurisprudence and take the judicialization of politics to a point that far exceeds any previous limit  Judicialization of this type involves instances where courts decide on watershed politics questions that face a nation, despite the fa
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