From Democracy to Juristocracy

From Democracy to Juristocracy Carlo Guarneri and Patrizia Pederzoli, From Democracy to Juristocracy? The Power of Judges: A Comparative Study of Courts and Democracy, C. A. Thomas, English editor. Oxford: Oxford University Press, 2002. 235 pages. $75.00 cloth. Alec Stone Sweet, Governing with Judges: Constitutional Politics in Europe. Oxford: Oxford University Press, 2000. 232 pages. $75.00 cloth; $27.50 paper. Ran Hirschl, Towards Juristocracy: The Origins and Consequences of the New Constitutionalism. Cambridge: Harvard University Press, 2004. 294 pages. $49.95 cloth. The phrase the power of judges turns up 103 recent titles on the Borders/Amazon search list, many of which, like the ones under review here, have a comparative focus-comparative at least in the casual sense, where comparative includes single country studies of foreign judiciaries. Each of the books under review, by contrast, takes a systematically comparative look at several countries, and in that sense this selection marks an important breakthrough for political science.1 But the more general point is that the sharp recent rise in "the power of judges" the world over has attracted considerable notice. Titles such as The Global Expansion of Judicial Power (Tate & Vallinder 1995) and terms such as juristocracy (Hirschl) and courtocracy (Scheppele 2002) proliferate precisely because that power has spread around the globe, in a development that seriously began only after World War 11 and that has taken on real momentum in the last thirty-five years. All three of the books here under review not only offer comparative descriptions of this development in several countries, but also make important contributions toward developing an explanatory theory about the causes and consequences of this massive recent growth in judicial power the world over. However, each emphasizes a different aspect of the picture. Alec Stone Sweet's Governing with Judges looks at the power to review laws for constitutionality in the post-World War II courts of France, Germany, Italy, Spain, and the European Union (EU) and argues that this power has shown a tendency to both spread beyond the Constitutional Court to which it is formally restricted, down into the "ordinary" courts, and permeate partisan conflicts within the legislature. He believes this "judicialization of politics" is endemic in the dynamic of judging itself, and that both the institution of a priori judicial review and the presence of lengthy bills of rights have accelerated this development. Patrizia Pederzoli and Carlo Guarneri compare the exercise of judicial review in the United States, England, Wales, Germany, Portugal, Italy, France, and Spain. They are particularly intrigued by the recent trend in some of the countries for major political controversies to end up in courts, decided by judges, rather than by elected legislators, and they explain this by looking at the combination of variations in the legislative partisan balance and variations in political institutions-particularly those for recruiting and promoting judges and those that structure the degree of separation between prosecuting and judging. Ran Hirschl's Towards Juristocracy focuses on four former British colonies-Canada, Israel, the Republic of South Africa, and New Zealand-and argues that the delegating of constitutional review power to judges emerged out of the perception by dominant groups that their hegemony was threatened by the rise in power of previously subordinated groups, and that in fact this recent constitutionalization of rights has had largely negative consequences for marginalized, subordinated groups. This review essay concentrates on these three books but, where appropriate, draws on other works in the large and fast-growing literature on this subject. It concludes with some independent reflections on the kind of political environment likely to produce the most luxuriant growth in judicial power. …