COMPARATIVE MATTERS: THE RENAISSANCE OF COMPARATIVE CONSTITUTIONAL LAW

Vol. 25 No. 3 (March 2015) pp. 45-49

COMPARATIVE MATTERS: THE RENAISSANCE OF COMPARATIVE CONSTITUTIONAL LAW by Ran Hirschl. Oxford: Oxford University Press. 2014. 304 pp. Hardback $29.99 Euros. ISBN: 978-0-19-871451-4.

Reviewed by Mark Kende, James Madison Chair Professor of Constitutional Law, Director of the Drake University Constitutional Law Center. Email: mark.kende@drake.edu.

Professor Ran Hirschl has written some of the most important recent books on comparative constitutionalism. In TOWARDS JURISTOCRACY: THE ORIGINS AND CONSEQUENCES OF THE NEW CONSTITUTIONALISM (2007), he argued that constitutional courts across the globe have acquired enough power to be a “juristocracy.” That term is now accepted vernacular. Moreover, he theorized controversially that these courts safeguard elite interests, rather than protect the vulnerable. JURISTOCRACY fits into a line of “popular constitutionalism” legal scholarship, asserting that courts do not bring about significant social changes (Tushnet 2000, Rosenberg 2008). Other scholars dispute popular constitutionalism (Chemerinsky 2004). Now Professor Hirschl has written another significant work COMPARATIVE MATTERS: THE RENAISSANCE OF COMPARATIVE CONSTITUTIONAL LAW. His acknowledgements specify that this is the final book in a trilogy that also encompasses CONSTITUTIONAL THEOCRACY (2010). The latest book meets the high substantive and organizational standards of the first two, and takes the fortunate reader backward and forward in time. It is well written and accessible despite the theoretical topic.

In COMPARATIVE MATTERS, Hirschl contends that comparative constitutionalism’s renaissance continues but it lacks methodological rigor. The book contains a novel intellectual history of the field, and a discussion of current developments and disputes. It then advocates a “social sciences” oriented model. This model goes beyond the judicial doctrinal emphasis of law professors, which he calls “armchair constitutional research” (p. 5). He instead advocates empirical and other approaches that can answer important causation questions. He also says that external factors are leading courts to examine foreign decisions such as: “necessity, inquisitiveness, and politics.” (p. 13). Comparative constitutionalists should read this excellent and thought provoking book, even if one does not agree with all of its conclusions.

Chapter 1 is an empirically oriented discussion of how and why national high courts use constitutional decisions from other courts. While many scholars have noted this trend, Hirschl writes that, “…these accounts…leave out a crucial factor, the socio-political context within which constitutional courts and judges operate, and how this affects whether and where the judicial mind travels in its search for pertinent foreign sources to reference.” (pp. 21-22). Indeed, political scientists frequently complain about how legal scholars ignore social science literature on law, such as attitudinalist perspectives. Yet books by sophisticated comparative constitutional law professors do not ignore this rich literature. But Hirschl is right that law professors usually treat these variables in a more informal manner than political scientists.

LAWYERING FOR THE RULE OF LAW: GOVERNMENT LAWYERS AND THE RISE OF JUDICIAL POWER IN ISRAEL

Vol. 25 No. 3 (March 2015) pp. 43-44

LAWYERING FOR THE RULE OF LAW: GOVERNMENT LAWYERS AND THE RISE OF JUDICIAL POWER IN ISRAEL by Yoav Dotan. Cambridge: Cambridge University Press. 2014. 214 pp. Paper $34.99. ISBN: 978-1-107-62590-7.

Reviewed by Martin Edelman, Professor Emeritus, Political Science, University at Albany; Adjunct Professor, Hunter College, CUNY. ME354@albany.edu.

Twenty years ago, leading members of the International Political Science Association’s Research Committee on Comparative Judicial Studies published the landmark book, THE GLOBAL EXPANSION OF JUDICIAL POWER. In the book under review, Yoav Dotan clearly demonstrates how the accuracy of that assertion—at least in Israel—depends upon the work of lawyers representing the government in public law litigation.

The analysis starts, as it must, with the structure of the Israeli civil court system. One part is quite unexceptional. The Supreme Court, as the final, authoritative, interpreter of the law of the State, has full appellate jurisdiction on the procedure and substance of criminal, civil, and administrative cases in that system. Another part of the Israeli Supreme Court’s jurisdiction is quite distinctive. It exercises an equity jurisdiction both as a court of first instance and on appeal. In this capacity, sitting as the High Court of Justice (HCJ), it deals with matters in which it may be necessary to grant relief “in the interest of justice.” In its capacity as the High Court of Justice, the Israeli Supreme Court functions as the first and last instance and oversight against public agencies (p. 23).

Any person in Israel proper or the Administered Territories (occupied by Israel since the 1967 War) who has reason to believe that a particular public agency (including the military) has denied their legal rights can petition the High Court of Justice for relief. The petition can be submitted by a layperson; no lawyer is required at any stage. A single judge reviews the petition. The court is able to issue a variety of orders for either immediate relief or further proceedings before a panel of justices. Thus the Supreme Court of Israel, as the High Court of Justice, functions as a trial court for administrative matters. It is doubtful “whether there is any other Supreme Court around the world to which access is as easy as the HCJ” (p. 29).