Vol. 13 No. 12 (December
2003)
JUDICIAL REVIEW IN NEW
DEMOCRACIES: CONSTITUTIONAL COURTS IN ASIAN CASES, by Tom Ginsburg. New York: Cambridge University Press,
2003. 310pp. Hardback $70.
ISBN: 0521817153. Paperback
$26. ISBN: 0521520398.
Reviewed by Ran Hirschl,
Associate Professor of Political Science and Law, University of Toronto. Email: ran.hirschl@utoronto.ca
Despite the global expansion
of judicial review and the key role of constitutional courts worldwide in
dealing with the most contentious moral and political issues, the field
of comparative judicial studies-specifically the study of the political
origins and consequences of judicial empowerment-remains under-represented
in the literature. The dearth of research and theory concerning the politics
of constitutionalization is due in part to practical difficulties (e.g.
language and accessibility, appropriate acquaintance with foreign constitutional
systems and legal materials, and the like). It is also a result of the preoccupation
of prominent scholars who shape the contours of contemporary debate with
"grand" constitutional theory and the somewhat exhausted, and often abstract,
debate concerning the tension between constitutionalism and fundamental
democratic governing principles. There is also a tendency towards parochialism
among scholars of constitutional law and politics as far as other countries'
constitutional arrangements and practices are concerned. With a few notable
exceptions, primarily in the context of constitutional reform in western
Europe and in the post-Soviet world, genuinely comparative studies of the
origins and consequences of constitutional transformation and judicial empowerment
are still rare, and often lack coherent methodology.
Tom Ginsburg's thoughtful
and stimulating JUDICIAL REVIEW IN NEW DEMOCRACIES is not only an important
contribution to the study of comparative constitutional politics and constitutional
design, but also a noteworthy contribution to the more general literature
concerning the transition to and consolidation of democracy in post-authoritarian
polities, in Asia and beyond. The book addresses a few fundamental questions:
Where does judicial power come from? How does it develop in early stages
of democratic liberalization in post-authoritarian polities? What are the
political conditions that support its maintenance and expansion in new democracies?
The first four chapters
set out the book's theoretical framework. Ginsburg is very well versed in
pertinent law and society, "transitology," and constitutional theory literature.
The arguments are both lucid and thought-provoking. In a nutshell, Ginsburg's
response to the aforementioned questions is that the establishment of constitutional
review in new democracies is largely a function of politics and interests,
not a reflection of macro-cultural or societal factors. Specifically, judicial
review may provide "insurance" for self-interested, risk-averse politicians,
negotiating the terms of new constitutional arrangements under conditions
of political deadlock or systemic uncertainty. Moreover, the expansion of
judicial power in new democracies is largely a function of courts' shrewdness
in gradually expanding their legitimacy and ambit of influence, without
antagonizing more powerful potential adversaries from the political environment
within which they operate. One drawback of this otherwise captivating section
is that alternative explanations for the evolution and expansion of judicial
review are not fully fleshed out.
To substantiate the theoretical
arguments presented in the book's first four chapters, Ginsburg turns to
a meticulous and fascinating exploration of the rarely discussed establishment
of constitutional courts and the corresponding judicialization of politics
in three new Asian democracies – Taiwan (Chapter 5), Mongolia (Chapter 6),
and Korea (Chapter 7). Ginsburg examines the politics of constitutional
transformation and design in these countries – all of which underwent a
transition to democracy in the late 1980s and early 1990s – as well as their
newly established constitutional courts' struggle to maintain and enhance
their stature within political environments that lack an established tradition
of judicial independence and constitutional supremacy.
In Taiwan, argues Ginsburg,
the democratization process was governed by a single dominant party (KMT)
with an overwhelmingly powerful leader (Chiang Kai-shek). The result has
been a very gradual constitutional reform ("Confucian constitutionalism,"
as Ginsburg calls it) and the evolution of a relatively weak and politically
dependent court (the Council of Grand Justices). In Mongolia, the former
Communist Party was in a strong position during the constitutional negotiation
stage but was nonetheless unable to dictate outcomes unilaterally because
of a newly emergent set of opposition parties. This has resulted in the
creation in 1992 of a "middle of the road," quasi-independent court (the
Constitutional Tsets). On the other hand, in Korea, constitutional transformation
took place amidst embedded uncertainty as a result of political deadlock
among three parties of roughly equal strength, resulting in the 1988 creation
of a strong and relatively independent constitutional court, as political
insurance against electoral uncertainty.
Beyond the book's excellent
"ethnography" of constitutional politics in these three countries – an accomplishment
in itself – arguably the book's most important contribution is its analysis
of the origins of judicial review in new democracies. Ginsburg draws upon
and further develops what we might call "electoral market" logic to explain
judicial empowerment, initially put forth by Landes and Posner (1975) and
later expanded by Mark Ramseyer (1994). According to this thesis, judicial
independence correlates with competitiveness in a polity's party system.
When a ruling party expects to win elections repeatedly, the likelihood
of judicial empowerment is low. Since rational politicians want long-term
bargains with their constituents, they lack the incentive to support an
independent judiciary when their prospects of remaining in power are high.
However, when a ruling party has a low expectation of retaining its position,
it is more likely to support an independent judiciary to ensure that the
next ruling party cannot achieve its policy goals through the judiciary.
In other words, courts gain independence under conditions of electoral uncertainty
for the political parties, it will be correspondingly difficult for succeeding
governments to reverse an outgoing incumbent's policies. Short horizons
or forthcoming elections can lead politicians who fear losing their office
to increase judicial independence in order to limit the future options of
their political opponents. Therefore, in Japan, for example (where a single
party ruled almost uninterruptedly for more than four decades following
World War II), judicial independence is weaker than in countries where each
election brings with it an acknowledged risk that the party in power might
lose control of the legislature.
Ginsburg builds upon this
logic to provide a compelling account of the politics of constitution-making
processes during periods of regime change and political transition. Akin
to purchasing insurance in uncertain contracting environments, judicial
review provides "insurance" against the risk of electoral defeat, thereby
facilitating transition to and consolidation of democracy. "Where constitutional
designers believe that they may not control the political institutions of
government, they are likely to set up a court to serve as an enforcement
body protecting the constitutional bargain from encroachment. When designers
believe that they will retain a dominant position in government, they seek
stronger power for the political branches and will forge institutional constraint
in favor of parliamentary sovereignty" (pp.200-201). At times of political
transition, greater degrees of political deadlock and/or more diffused or
decentralized political power, increases the probability that uncertainty
will be embedded in its constitution-making process and subsequent electoral
market. This in turn leads to a greater likelihood that a relatively powerful
and independent constitutional court will emerge as insurance adopted by
risk-averse participants in the constitutional negotiation game. In short,
judicial review is a solution to the problem of uncertainty in constitutional
design.
The "insurance" thesis may
provide a coherent explanation for variation in the establishment of judicial
power during periods of political transition and regime change in other
parts of the world (see e.g. Larkins 1998; Magalhaes 1999; Moravcsik 2000;
Ishiama-Smithey and Ishiama 2000). The insurance logic may explain the near-miraculous
conversion to constitutionalism and judicial review among South Africa's
white political and business elites during the late 1980s and early 1990s,
when it became clear that the days of apartheid were numbered and an ANC-controlled
government became inevitable (Klug 2000; Hirschl 2004). As Pedro Magalhaes
points out in his recently completed Ph.D. dissertation, for example, transition
to democracy in Spain and Portugal in the mid 1970s was characterized by
lack of a single core of post-authoritarian political power, thereby leading
to the rapid adoption of strong constitutional review mechanisms. In Greece,
by contrast, the post-authoritarian process was dominated by a single party
(Constantine Karamanlis' New Democracy), which enjoyed over 70% of assembly
seats, and did not have to worry about elections following the approval
of the new constitution. The result, argues Magalahaes, was that Greece,
with similar authoritarian and civil law legacies as Spain and Portugal,
and involved in an almost simultaneous democratic transition, remained the
only Southern European democracy without constitutional judicial review
of legislation.
While the "insurance" thesis
sheds considerable light upon conditions conducive to judicial empowerment
– especially during political transition – it seems unrelated to constitutionalization
and the accompanying emergence of judicial review under "no apparent transition"
scenarios. For one, the model is based on a somewhat simplistic perception
of politics as limited to the partisan electoral market and driven by the
interests of political power-holders in an uncertain contractual environment.
Such a minimalist understanding of constitution-making does not capture
the full picture of constitutional politics in multi-ethnic, multi-linguistic,
or multicultural "new constitutionalism" polities such as Belgium or Canada.
Nor does it comport with constitutional politics in countries such as Israel,
India, Egypt, or Turkey (to name but a few examples) where the fundamental
tension between secularist, cosmopolitan values and religious particularism
has fuelled political struggle for decades. The political hegemony and cultural
propensities of relatively cosmopolitan elites and the urban intelligentsia
in these and other fragmented polities have been constantly challenged by
alternative worldviews, belief systems, and policy preferences. These nuanced
and complex political struggles cannot be easily reduced to a thin view
of politics as dominated by risk-averse politicians operating under systemic
political uncertainty at times of regime change.
What is more, from an analytical
standpoint, there is a difference between at least two common scenarios
for judicial empowerment through constitutionalization: 1) constitution-making
in "building the ship at sea" situations where most pertinent actors operate
under a veil of systemic uncertainty (as in most negotiated transitions
from authoritarian to democratic regimes) and may therefore opt for judicial
empowerment as a type of insurance in an unpredictable contractual environment;
and 2) a distinctly different constitutionalization process, in which hegemonic
yet threatened elites voluntarily initiate and carry out constitutionalization
and judicial empowerment in an attempt to entrench or "lock in" their policy
preferences against growing influence of historically disenfranchised or
under-represented groups-not necessarily linked to any formal political
transition, regime change, or constitutional negotiations. When their ideological
worldviews or policy preferences are increasingly challenged in majoritarian
decision-making arenas, elites with disproportionate influence may initiate
a constitutional revolution and a corresponding judicial empowerment in
order to transfer power from the political sphere to national high courts.
Such a strategic, counter-intuitive self-limitation through judicial empowerment
may be preferred by power-holders when the restrictions imposed on political
rivals outweigh the limits imposed upon themselves. Judicial empowerment
through constitutionalization may provide an efficient institutional solution
for influential groups who seek to preserve their hegemony, and who, in
light of serious erosion in their popular support, may find strategic drawbacks
in adhering to majoritarian policy-making processes.
As I show elsewhere (Hirschl
2004), understanding judicial empowerment through constitutionalization
as a form of hegemonic preservation by threatened elites may shed light
on the political vectors behind the constitutional revolutions in formerly
Westminster-style polities. Examples include Canada's adoption of the Charter
of Rights and Freedoms in 1982 as part of a broader strategic response by
the federalist, anglophone, business-oriented elites to the growing threat
of Quebec separatism and the rapidly changing demographics of Canadian society;
and Israel's 1992 adoption of two new Basic Laws protecting core rights
and liberties, and the corresponding establishment of constitutional review
in 1995 as part of a strategic response by the secular bourgeoisie who had
been rapidly losing its historical political dominance. Likewise, the 1994
judicial empowerment through constitutional reform in Mexico was a calculated
attempt by the then ruling party (Partido Revolucionario Institucional –
PRI) to lock in its historic influence within the judicial branch before
the PRI's increasingly popular political opponents (and eventual winners
of the 2000 presidential election) gained control. The same logic may also
explain the scope and timing of the June 1991 constitutionalization of rights
in British-ruled Hong Kong, which occurred less than two years after the
British Parliament ratified the Joint Declaration on the Question of Hong
Kong, whereby the province was restored to China in July 1997; or Britain's
enthusiastic support for the entrenchment of property rights in the "independence
constitutions" of newly self-governing African states (e.g. Ghana in 1957,
Nigeria in 1959, and Kenya in 1960), while it was unwilling to incorporate
the provisions of the European Convention on Human Rights into its own legal
system (let alone to enact a constitutional bill of rights of its own).
In addition, strong constitutional courts were established in predominantly
Islamic polities such as Egypt, Pakistan, and Turkey as part of a broad
strategy by relatively cosmopolitan power-holders in these countries to
tame anti-secularist popular political forces.
These instances of judicial
empowerment did not stem from constitutional negotiations under a veil of
systemic uncertainty at times of political transition. Rather, they were
the outcome of a deliberate strategy undertaken by hegemonic, yet threatened,
political elites – in association with economic and judicial elites sharing
compatible interests – who found strategic disadvantages in adhering to
democratic decision-making processes. Ginsburg is correct in asserting that,
at least from an instrumental perspective, judicial review may facilitate
effective transition to democracy by providing insurance to prospective
electoral losers. However, it must not be overlooked that judicial empowerment
in the "hegemonic preservation" constitutionalization scenario appears to
be driven in no small part by forces and interests antithetical to democratic
governance.
To be sure, political interests
provide a major impetus for constitutionalization in both the "insurance"
and "hegemonic preservation" models. However, whereas Ginsburg's insurance
thesis provides a compelling explanation for the emergence of judicial review
under conditions of systemic uncertainty in new democracies, it misses a
crucial driving force behind the second scenario. Accordingly, Ginsburg's
early attempts to illustrate the insurance thesis by anecdotal evidence
drawn from late 18th century American, or late 20th century Israeli and
South African constitutionalization contexts, seem somewhat forced and less
parsimonious than his subsequent treatment of constitutional politics in
his three premier cases (and by extension, in other similarly situated polities).
Ginsburg only scantly refers
to domestic and international political economy factors – an important motive
for constitutionalization and judicial empowerment in new democracies. Economic
elites may advocate constitutionalization as a means of placing economic
liberties beyond the reach of majoritarian control. Preserving the economic
sphere through constitutional protection of mobility, property, occupational
and trade rights, as well as the establishment of independent judiciaries
that function as checks on (often "unpredictable") domestic politics and
(often "arbitrary") state action, have long been viewed by trans-national
economic bodies such as the World Bank, the World Trade Organization, and
the International Monetary Fund as primary indicators of successful markets
and sustained economic growth. The incorporation into domestic law of these
and other legal norms endorsed by international trade and monetary regimes
is often a prerequisite imposed upon countries striving to become members.
New democracies that rely heavily on foreign aid and investment are likely
to bow to pressure from leading western democracies, economic corporations,
or trans-national governing bodies to promote the rule of law by emulating
the constitutional fundamentals of western democracies. Adopting a constitutional
catalogue of rights and establishing judicial review may also demonstrate
a polity's willingness to accept the required legal standards for joining
supra-national economic regimes. As scholars have noted, the restriction
of legislative power through constitutional rights and judicial review may
also enhance a given regime's international economic credibility and prevent
large-scale "capital flight." This latter consideration may explain the
convergence to constitutionalism and judicial review by the ANC in the early
1990s, despite its prospective control of government in the new South Africa,
and in stark contrast to the socialist action program of the Freedom Charter
advocated by the ANC throughout the apartheid era.
In contrast to the book's
first seven chapters, the final chapter takes a more normative tone. Unlike
the conventional concerns regarding the counter-majoritarian nature of judicial
review, Ginsburg concludes (pp.261-262) that judicial review and democracy
can and do develop together, and that judicial review is largely a product
of democratization and an expression of political diffusion. Moreover, judicial
review, argues Ginsburg, may effectively prevent excessive centralization
of power (an empirical question his book does not address).
In conclusion, some of the
book's arguments are not fully polished and its dialogue with alternative
or complementary explanations of constitutional transformation is somewhat
thin. Despite these minor drawbacks, Ginsburg's comparative account of the
political construction of judicial power, his analysis of new constitutional
courts' struggle to maintain and expand their influence, and particularly
his establishment of a causal link between electoral uncertainty and judicial
review in the context of democratic liberalization, are astute, compelling,
and indeed intellectually refreshing. Every serious scholar and student
of constitutional politics and institutional design should read this book.
REFERENCES:
Hirschl, Ran. 2004. TOWARDS JURISTOCRACY: THE ORIGINS
AND CONSEQUENCES OF THE NEW CONSTITUTIONALISM. Cambridge, MA: Harvard University Press.
Ishiama-Smithey, Shannon, and John Ishiama. 2000. "Judicious
Choices: Designing Courts in Post-Communist Politics." 33 COMMUNIST AND
POST-COMMUNIST STUDIES 163-182.
Klug, Heinz. 2000. CONSTITUTING
DEMOCRACY: LAW, GLOBALISM AND SOUTH AFRICA'S POLITICAL RECONSTRUCTION. Cambridge: Cambridge University Press.
Landes, William, and Richard Posner. 1975. "The Independent
Judiciary in an Interest Group Perspective." 18 JOURNAL OF LAW & ECONOMICS
875-901.
Larkins, Christopher. 1998. "The Judiciary and Delegative
Democracy in Argentina."
30 COMPARATIVE POLITICS 423-442.
Magalhaes, Pedro. 1999. "The Politics of Judicial Reform in Eastern Europe." 31 COMPARATIVE POLITICS 43-62.
Moravcsik, Andrew. 2000. "The Origins of Human Rights Regimes." 54 INTERNATIONAL ORGANIZATION 217-252.
Ramseyer, J. Mark. 1994. "The Puzzling (In)Dependence
of Courts: A Comparative Approach." 23 JOURNAL OF LEGAL STUDIES 721-748.
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Copyright 2003 by the
author, Ran Hirschl.