2005]
Ran Hirschl, Towards Juristocracy: The Origins and Consequences of the New
Constitutionalism (Cambridge, Mass.: Harvard University Press, 2004). Pp. 286.
BOOKNOTES / RECENSIONS
459
First they ignore you, then they laugh at you,
then they fight you, then you win.
Mahatma Gandhi
So it was in the fight for Indian independence. But for scholars who argue against
prevailing orthodoxies, the process tends to be somewhat more succinct. Mainstream
academics tend to be too polite to laugh at those who challenge their most precious
habits of thought, but they also often find themselves unable to deal with such
challenges. For radical scholars, then, the process can often be summarized as
follows: First they ignore you, period.
Such may be the fate of Ran Hirschls exceptional book, Towards Juristocracy,
which examines the recent constitutional revolutions in Canada, Israel, New Zealand,
and South Africa. As late as 1942, the judiciary could declare a national law void for
unconstitutionality in only two countriesthe United States and Norway.1 In a
thirdMexicoit could declare an unconstitutional law inapplicable to a specific
individual.2 Since the mid-twentieth century, as Hirschl notes, power has been
transferred from representative institutions to judiciaries in more than eighty countries
(1), and the pace has accelerated with the spread of the new constitutionalism. Hirschl
tests mainstream explanations for this transfer of power against empirical data and
finds them lacking. Standard evolutionist and functionalist approaches, for example,
respectively assume that constitutionalization is inevitable in democratic societies and
is intended to overcome institutional inefficiencies. But these approaches inadequately
explain the significant differences in the timing, scope, and nature of this transfer of
power between states (31-38). In place of such accounts, Hirschl develops his
hegemonic preservation thesis, according to which this transfer of power results
from an interplay between the strategic interests of three key groups: political elites,
economic elites, and judicial elites.
Hirschl assumes that these elites are strategic decision makers who attempt to
maintain or enhance their dominant positions (43). Power will most likely be
transferred to the judiciary, therefore, when these groups believe that such a transfer
will enhance or prevent the erosion of their power. For judicial elites, particularly the
high court, the benefits are obviousincreased prestige and decision-making power
(47-48). The benefits for economic elites are also easy to discern: the constitutional
1 Leslie Friedman Goldstein, From Democracy to Juristocracy, Book Review of The Power of
Judges: A Comparative Study of Courts and Democracy by Carlo Guarneri & Patrizia Pederzoli;
Governing with Judges: Constitutional Politics in Europe by Alec Stone Sweet; and Towards
Juristocracy: The Origins and Consequences of the New Constitutionalism by Ran Hirschl (2004) 38
Law & Socy Rev. 611 at 612-13. (Oxford: Oxford University Press, 2002) at 135.
2 This type of constitutional review was, and is, known as the juicio de amparo, or protection
trial. For the leading analysis on this subject, see Ignacio Burgoa O., El juicio de amparo, 40th ed.
(Mexico City: Porra, 2004).
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protection of private property safeguards them against what Alexander Hamilton once
referred to as the democratical jealousy of the people.3 Even when the constitution
does not explicitly protect private property, the prevalent emphasis on individual
rights and negative liberties tends to favour economic elites (46-47). As for political
elites, it seems counterintuitive for them to delegate their power voluntarily. And so it
is, except when their traditional control over electoral politics is threatened by the
rising influence of peripheral groups. At such times, political elites may conclude that
they can protect their policy preferences more effectively by transferring control to
the judiciary, particularly when they control the judicial appointment process and are
relatively certain that judicial decisions will serve their interests (43-44).
To test his thesis, Hirschl examines the origins, actual impact, and political
consequences of the recent constitutional revolutions in Canada, Israel, New Zealand,
and South Africa, and he focuses on these countries for several reasons. All four
countries are characterized by deep political, economic, ethnic, and cultural-linguistic
divisions. Israel, New Zealand, and Canada were informed by a strong British
common law tradition, particularly with regards to the Westminster model of
parliamentary sovereignty. Also, the constitutional transformations in those three
countries were not preceded or accompanied by major changes in their respective
political regimes, which makes it easier to investigate the actual impact of the
constitutional changes. South Africa, whose political elites also traditionally favoured
parliamentary supremacy, is studied precisely because it is a problem case: it
represents the strongest prima facie case for the progressive potential of an entrenched
bill of rights. And finally, all four countries have adopted different mechanisms to
address the obvious counter-majoritarian implications of judicial review, from New
Zealands preferential model, which does not formally allow the courts to nullify
unconstitutional legislation, to sections 1 and 33 of the Canadian Charter of Rights
and Freedoms4 (8-10).
As Hirschl demonstrates, political elites in all four countries were traditionally
opposed to entrenched bills of rights but changed their minds once they risked losing
control over the parliamentary process or, in the case of Canada, the territorial
integrity of the country. The Israeli Knesset, for example, was traditionally dominated
by the Ashkenazi secular bourgeoisie, which saw no need to delegate its power to the
judiciary (50-53). But by the mid-eighties, this groups power was being eroded by
peripheral groups, primarily religious Mizrahi Jews (55-60). At the same time, Israel
was undergoing a fundamental political and economic transition towards global
neoliberal integration (60). As a result, a cross-party coalition representing primarily
secular and neoliberal interests, with the support of judicial and economic elites,
3 Alexander Hamilton, Conjectures about the New Constitution, in Bureau of Rolls and Library of
the United States Department of State, Documentary History of the Constitution of the United States
of America, 1786-1870, vol. 4 (New York: Johnson Reprint, 1965) at 289 (reprint).
4 Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11
[Charter].
BOOKNOTES / RECENSIONS
2005]
pushed for constitutional reforms that culminated in the 1992 adoption of Basic Law:
Human Dignity and Liberty and Basic Law: Freedom of Occupation, as well as the
amendment of Basic Law: The Government (54-55).
461
Beginning in the seventies, New Zealand experienced profound economic
changes as its traditional economic ties with Britain began to erode. As a result,
between 1984 and 1994, New Zealands economic and political elites reconsidered
that countrys political economic policy and transformed the country from a welfare
state to one of the most neoliberal economies in the world (83-84). At the same time,
the parliamentary representation of peripheral groups, primarily the Maori, also
increased, as did Maori political consciousness (85-86). The adoption of the 1990
New Zealand Bill of Rights Act5 was spearheaded by a coalition of economic elites,
who wanted to facilitate the economic restructuring process, and political elites, who
wanted to protect their policy preferences from majoritarian politics (83).
South Africa also experienced a deep economic shift in the eighties and nineties.
Considered a pariah state by the West, it was largely cut off from international capital
flows at a time when its gold wealth was in decline. The white economic elite realized
that it could not expect to receive access to foreign capital, or find investment
opportunities abroad, without first dismantling the apartheid system. But afraid that
democratic rule would make whites vulnerable to wealth redistribution, the National
Party began advocating an entrenched bill of rights, and the process culminated with
the Constitution of the Republic of South Africa, 1996,6 which includes a protection
for property rights (92-94).7
Canada was one of the first countries to embrace the new constitutionalism,
primarily as an attempt to combat Quebec nationalism (75-76). To a greater extent
than in other countries, the adoption of the Charter can be traced to the influence of
one individual, Pierre Trudeau. Trudeaus political career was defined by his attempts
to create a stronger federal government and counter Quebec independence, and he
considered the adoption of official bilingualism, for example, to be insurance against
separatist sentiment. But far more important was the 1982 Charter, particularly
section 23(1)(b), or the Canada clause, which was intended to override the
mandatory French language education policies of Quebecs Bill 1018 (79-80).
Interestingly, though this fact is undisputed in Canadian historiography, not one
Charter apologist has acknowledged Trudeaus primary interests in pursuing
patriation. Economic elites also supported the Charter and its proposed property
5 (N.Z.), 1990/109.
6 No. 108 of 1996.
7 For an analysis of the political economic transformations that underlay the constitutional
transitions in South Africa and Israel, see Jonathan Nitzan & Shimshon Bichler, Going Global:
Differential Accumulation and the Great U-turn in South Africa and Israel (2001) 33 Rev. Radical
Pol. Econ. 21; Jonathan Nitzan & Shimshon Bichler, The Global Political Economy of Israel
(London: Pluto, 2001).
8 Charter of the French Language, R.S.Q. c. C-11.
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protection. Public resistance prevented that protection from being included in the final
draft, but, as Hirschl points out, it became practically assured in 1994 through the
North American Free Trade Agreement9 (77).
[Vol. 50
Proponents commonly attribute significant progressive effects to judicial review,
most typically regarding the empowerment of marginalized groups. Hirschl
systematically analyzes the constitutional jurisprudence of the four countries high
courts and concludes that while judicial review has had a significant impact on
procedural justice and negative liberties issues such as criminal due process rights,
and freedom of expression (117-19), it has had almost no impact on issues of
distributive justice (148, 156-62). Negative rights litigation has made up between 80
and 90 per cent of all high court bill of rights litigation in the four countries and has
been far more successful than positive or collective rights litigation (105-08). In
Canada and Israel, the bills of rights have been used by litigants to erode many
protections formerly enjoyed by unions (139-46). Inequality has increased in New
Zealand, Israel, and Canada since these countries adopted bills of rights, while in
South Africa it has remained relatively unchanged since the apartheid era (156-62).
In his recent defence of the Charter, Kent Roach outlines the principal leftist and
conservative fears regarding the Charterthat it will lead to the constitutional
protection of the rich and of those minorities favoured by the intellectual elite,
respectively. Roach pretends to dismiss these criticisms by claiming that the two sets
of fears contradict each other.10 But, as Hirschl demonstrates, there is no contradiction
at all. Both are consistent with the primarily negative conception of liberty adopted by
the judiciary: the less the state interferes in the private sphere, personal or economic,
the better (13-14). Of course, the obvious problem is that socio-economic disparity
can only be remedied through collective action. Hirschl provides empirical evidence
for the familiar argument that liberal freedoms are largely meaningless for those who
lack the ability to exercise them.
Finally, Hirschl examines the political consequences and implications of the new
constitutionalism. The legalization of politics has gone far beyond bill of rights
litigation and now reaches the most fundamental political and moral questions faced
by all four countries. In Israel, the issues of who is a Jew and what it means for Israel
9 North American Free Trade Agreement Between the Government of Canada, the Government of
Mexico and the Government of the United States, 17 December 1992, Can. T.S. 1994 No. 2, 32 I.L.M.
289 (entered into force 1 January 1994) [NAFTA]. The property protection was perhaps unnecessary
in any event, since property enjoys potential constitutional protection through the common law and
the Canadian Bill of Rights (S.C. 1960, c. 44, reprinted in R.S.C. 1985, App. III). The Bill of Rights
was not eliminated by the Charter, and though it has fallen into disuse, its property protection remains
in effect. Also, the Supreme Court of Canada declared in New Brunswick Broadcasting Co. v. Nova
Scotia, [1993] 1 S.C.R. 319, that the constitution includes unwritten doctrines. Therefore, if a future
government attempts to expropriate property for social democratic purposes, it is possible that the
courts will rely on these sources to declare the expropriation unconstitutional.
10 Kent Roach, The Supreme Court on Trial (Toronto: Irwin Law, 2001) at 211.
BOOKNOTES / RECENSIONS
2005]
to be a Jewish and democratic state; in South Africa, New Zealand, and Canada,
fundamental restorative justice dilemmas; and in Canada, the very future of the
federation are all routinely dealt with through the courts rather than the political
process. In South Africa, as in Canada in the late nineteenth century, the judiciary has
shaped the federations division of powers, and in 1996 the South African
Constitutional Court even refused to certify a draft constitution approved by the
countrys National Assembly (172-99).
463
Hirschls book may be met with silence because mainstream scholars will tend to
lack the skills and knowledge necessary to challenge its breadth of scope and wealth
of empirical data. It is a genuinely comparative analysis that gives equal attention to
all four countries and links their constitutional transformations to a broader global
phenomenonthe transfer of policy-making authority from representative institutions
to semi-autonomous professional bodies such as central banks, the International Court
of Justice, the World Trade Organization, and the NAFTA Secretariat (215-16). Thus,
at a time when individuals in many countries are increasingly protected from state
intrusion into the private sphere, they are also increasingly losing the ability to
influence social policy through democratic channels. Apologists can put a positive
spin on the outcomes in specific bill of rights cases, but in a democratic society it is
much harder to justify the delegation of fundamental political and moral issues to
undemocratic professional bodies.
It seems odd that apologists for judicial review, who have little faith in politicians,
have great faith in the constitutions they produce. In contrast to such views, Hirschls
hegemonic preservation thesis is consistent with what is sometimes called radical
institutionalism. Most famously associated with Thorstein Veblen and C. Wright
Mills, radical institutionalism starts from the premise that elites derive much of their
power from their ability to control and restructure social institutions for their own
ends.11 Hirschls principal argument is similar to the one made by Charles Beard in
1912 and 1913 in reference to the American constitution.12 Beard demonstrated that
the drafters of that document were more preoccupied with their ability to maintain
control over the American political economy than with the high-sounding ideals
contained in its preamble. Thus, for example, securities speculators made some $40
million in profit from the constitutions contracts clause, a figure that represented
approximately 10 per cent of the taxable value of all the lands in the thirteen States
11 See e.g. Thorstein Veblen, The Theory of Business Enterprise (New York: Charles Scribners
Sons, 1919); Thorstein Veblen, Absentee Ownership and Business Enterprise in Recent Times: The
Case of America (Boston: Beacon Press, 1967); C. Wright Mills, The Power Elite (Oxford: Oxford
University Press, 1956).
12 Charles Beard, The Supreme Court and the Constitution (Englewood Cliffs, New Jersey:
Prentice-Hall, 1962); Charles Beard, An Economic Interpretation of the Constitution of the United
States (New York: Macmillan, 1960). Some of Beards specific arguments have been challenged,
perhaps most successfully by Forrest McDonald, We the People: The Economic Origins of the
Constitution (Chicago: University of Chicago Press, 1958). Nonetheless, Beards general argument is
still sound.
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and a charge of $10 for every inhabitant of the United States. And yet, several decades
after Beards works were written, the two most important American advocates of
judicial review were still able to conclude that the constitution was drafted in the
bright morning of liberal thought,13 when there really [did] exist a calm consensus
about the rights to be included.14 Confronted with uncomfortable facts, Dworkin and
Ely simply ignored them. Hirschls book poses equally uncomfortable facts for the
apologists of the new constitutionalism. We have yet to see if it, too, will be ignored.
[Vol. 50
Daniel Moure
13 Ronald Dworkin, Freedoms Law: The Moral Reading of the Constitution (Cambridge: Harvard
University Press, 1996) at 38.
14 John Hart Ely, On Constitutional Ground (Princeton: Princeton University Press, 1996) at 15.
Both Dworkin (ibid.) and Ely refer to a constitution in the abstract, but their accounts are clearly
based upon the American experience.
