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The Judge as Political Theorist

The Judge as Political Theorist: Contemporary Constitutional Review

Copyright Date: 2010
Pages: 432
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  • Book Info
    The Judge as Political Theorist
    Book Description:

    The Judge as Political Theoristexamines opinions by constitutional courts in liberal democracies to better understand the logic and nature of constitutional review. David Robertson argues that the constitutional judge's role is nothing like that of the legislator or chief executive, or even the ordinary judge. Rather, constitutional judges spell out to society the implications--on the ground--of the moral and practical commitments embodied in the nation's constitution. Constitutional review, in other words, is a form of applied political theory.

    Robertson takes an in-depth look at constitutional decision making in Germany, France, the Czech Republic, Poland, Hungary, Canada, and South Africa, with comparisons throughout to the United States, where constitutional review originated. He also tackles perhaps the most vexing problem in constitutional law today--how and when to limit the rights of citizens in order to govern. As traditional institutions of moral authority have lost power, constitutional judges have stepped into the breach, radically altering traditional understandings of what courts can and should do. Robertson demonstrates how constitutions are more than mere founding documents laying down the law of the land, but increasingly have become statements of the values and principles a society seeks to embody. Constitutional judges, in turn, see it as their mission to transform those values into political practice and push for state and society to live up to their ideals.

    eISBN: 978-1-4008-3687-1
    Subjects: Political Science, Law

Table of Contents

  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
    (pp. ix-xii)
    David Robertson
  4. CHAPTER ONE The Nature and Function of Judicial Review
    (pp. 1-39)

    The theme of this book is that modern constitutional review cannot always be adequately understood if seen through the traditional categories of the separation of powers. Constitutional courts do more than can be fitted into the domain allowed to courts exercising the judicial function. Much of what they do in what I call “transforming societies” involves spreading the values set out in the constitution throughout their state and society. Indeed, their idea of what a constitution is does not always fit well with the orthodox idea of a liberal constitution. I try to show that constitutional judges often come near...

  5. CHAPTER TWO Germany: Dignity and Democracy
    (pp. 40-82)

    If so distinguished a commentator on the German Federal Constitutional Court (FCC) as David Currie admits the court’s ideas on human dignity are less than transparently clear, we can be sure that grasping what the German experience means for understanding constitutional review is a major task. It is an unavoidable task. The court’s record is so huge, all-encompassing, and important that one can find examples of almost any aspect of constitutional review in it. Many other, younger constitutional courts openly admit the influence it has on them.²

    The case Currie is commenting on came to the FCC from one of...

  6. CHAPTER THREE Eastern Europe: (Re)Establishing the Rule of Law
    (pp. 83-142)

    All the East and Central European new democracies after 1990 wrote constitutional courts into their constitutions. As far as one can tell, they did so with no hesitation, and with no sense that they were exercising choice; it seems that the idea of a constitution logically implied constitutional courts and judicial review.¹ But in fact it was a choice— and by no means the obvious one. The truth is that many indisputably democratic Western states do not have judicial review, or not full review. France, as shown later in this book, has a form of it, largely by accident, and...

  7. CHAPTER FOUR France: Purely Abstract Review
    (pp. 143-186)

    There is no judicial review mechanism that can so easily be characterized as a purely political, policymaking interloper into executive and parliamentary arenas as the French Conseil constitutionnel. Nor has any been so often and so widely thus accused. Perhaps the most important single thing to keep in mind in assessing the Conseil constitutionnel is that it is young, and that it has changed a good deal during its life. Coming as it did into a political culture so totally bereft of the idea of constitutional review, it would be hardly surprising if some of its early decisions were not,...

  8. CHAPTER FIVE Canada: Imposing Rights on the Common Law
    (pp. 187-225)

    Canada is important for this book. Even were it not a subject of interest in its own right, it would have to be covered. This is because Canada is the best example we have of importing a whole new constitutional approach to a working and stable political system. Though the actual text of the Canadian Charter of Rights and Freedoms owes little to any other model, the process of establishing it, working out its details, and applying its rules has been one long exercise of legal transportation. Legal transplantation, though controversial, has been common in the jurisdictions covered here, and...

  9. CHAPTER SIX South Africa: Defining a New Society
    (pp. 226-280)

    In the few years since its first decision in 1995, the South African Constitutional Court has made history in so many ways that it might be hard to know where to start.² Or for a lawyer it might be hard. But for a political scientist there is no choice. One decision stands out as unique in the history of judicial review anywhere, demonstrating beyond any question an act of political choice—and a technically very difficult political choice— but a decision ironically, that was forced on the court by politicians. This is the case usually known as theFirst Certification...

  10. CHAPTER SEVEN Tests of Unconstitutionality and Discrimination
    (pp. 281-346)

    At the heart of constitutional review lies the fact that no rights are absolute, and government must go on, though constitutional texts and the traditions of constitutional law often hide this. The truth is that the underlying reality, what the Hungarians call “the living law,” of even the strongest bills of rights might better be translated as something like: “The following list of rights indicate things governments really shouldn’t do unless they absolutely have to.” If this is true of most rights, it is even more true of the right against discriminatory or unequal treatment. All legislation, all policymaking, is...

  11. CHAPTER EIGHT Conclusions: Constitutional Jurists as Political Theorists
    (pp. 347-384)

    This book is intentionally, perhaps unavoidably, discursive. But a set of themes recurs in most chapters. In this concluding chapter I seek only to restate them, not to synthesise them, and certainly not to offer definitive answers to the questions they raise. The most important recurring themes, which overlap and interrelate, are probably the following:

    counter-majoritarian criticism, a judicial version of which is the sense of a duty of deference to legislatures;

    the role of nondiscrimination as a prime value, and the related theme of the increasing dominance of constitutions as value documents;

    the centrality of the idea of human...

    (pp. 385-392)
    (pp. 393-406)
  14. INDEX
    (pp. 407-420)