Lisa Hilbink, University of Minnesota. Email: hilbink [at] umn.edu.
Among the many merits of the new OXFORD HANDBOOK OF LAW AND POLITICS (OHLP) is its inclusion of two full sections (ten chapters totaling 200 pages) on law and politics issues from comparative and international/supranational perspectives. Had the volume been published a decade earlier, this would certainly not have been the case. Indeed, many of the authors of these chapters were, like myself, still graduate students ten years ago, toiling to find a place in a subfield long dominated by scholars of a single court in a single country – namely the U.S. Supreme Court. Both the quantity and the quality of their contributions to this handbook are a testament to our shared success in opening the subfield to new cases and new questions. The study of law and courts outside the U.S. has come a long way in a short time.
In striving to establish our legitimacy as comparativists interloping in a traditionally Americanist domain, however, I fear we are, perhaps unwittingly, reproducing some of the existing pathologies of the law and courts subfield. Reading the chapters in the “Comparative Judicial Politics” section of the OHLP, I was struck by three things: first, the almost exclusive focus on high courts and constitutional decision-making in the countries of study; second, a tendency to discount the relevance of factors in any way internal to law or legal institutions; and third, a limited and limiting view of politics as narrowly instrumental.
The focus on high courts and constitutional decision making is easy enough to understand and arguably the least problematic of these three issues. If Americanists who study law and courts at levels other than SCOTUS have faced an uphill battle for professional attention and recognition, imagine the position that comparativists find themselves in, having to demonstrate that the phenomena they want to study are empirically significant and theoretically relevant, even if they aren’t likely to make even the back pages of U.S. newspapers or be the subject of major debate on U.S.-based blogs and list-servs. To be sure, the proliferation of high courts with constitutional review powers (Ginsburg, OHLP) and the increased involvement of old and new courts in “mega-politics” (Hirschl, OHLP) are phenomena that cry out for explanation and are thus natural targets for comparative analysis. However, if (at least part of) the goal is to understand when, where, how, and why law and legal institutions matter, or come to matter, for governance, – that is, for the way that governments provide (or fail to provide) basic public goods, such as physical and economic security or social services, – then a narrow focus on the highest court, and often on a subset of decisions of that court, is definitely not sufficient. Not only do we need more studies of lower court decision-making [*1099] in different countries (and different provinces), but we also need more research into the role of police, prosecutors, public defenders, ombudsmen offices, comptrollers, and other agencies charged with upholding the law and/or monitoring powerful actors, as well as the interactions between them. Brinks’s (2008) book on the judicial response to police killings in five different Latin American cities offers an excellent model for such work.
We could also benefit from far more studies of the role that actors in civil society, be they inside or outside the legal profession, play in advancing or undermining the rule of law at any level. Chavez (OHLP) surveys some of the work that has been done in this vein, but it is clear that the various propositions in the literature are in serious need of systematic comparative testing and refining. One noteworthy effort in this regard is the Halliday, Karpik, and Feeley (2007) volume, which seeks to illuminate the role that actors in the “legal complex” (judges, lawyers, and legal academics) play in constructing or eroding political liberalism. Many of the contributions to that work, covering sixteen countries on four continents, discuss high courts, but treat them as only one piece of a larger picture in struggles for core rights of citizenship, a moderate state, and associational autonomy. The analyses do not all point in the same causal direction, but they offer a rich trove of empirical material and a number of propositions that might be further tested in future research.
Perhaps turning the focus away from high courts in this way would help mitigate the second tendency in the literature on comparative law and courts, evident in several of the chapters of the OHLP, to caricature and dismiss arguments that highlight factors internal to law or legal institutions. I can think of no political scientist specializing in judicial behavior outside the U.S. (or inside, for that matter) who accepts the legal formalist myth that judges decide cases uniquely or mechanically on the basis of legal text or other legal rules. But even if we all proceed on a legal realist/political jurisprudential premise, we need not conclude that judicial behavior is determined by “conditions outside of the courts and the law” (Chavez, OHLP: 75). To paraphrase Martin Shapiro in the closing chapter of the OHLP, law, by definition, puts limits on discretional decision making. Where political decisions are purely discretional, as in autocratic regimes, there is really nothing for law and politics scholar to study. And while democratic legislators may have relatively few constraints on their discretion, the discretion of administrators and judges (particularly in lower courts) is often highly constrained, and therefore, “the law and politics scholar working on such secondary rulemaking…is warned to pay as much or more attention to the constraining rules as to the discretion” (Shapiro, OHLP: 773).
To this I would add that the “constraining rules” operating on judicial actors may not be directly legible off the legal text. Indeed, there may be formal rules and informal norms internal and particular to judicial institutions that shape and constrain judicial conduct by providing, as historical institutionalists put it, “the content of the identities, preferences, and interests that actors [can] embrace and [*1100] express” (Smith OHLP: 47-8). In my work on Chile, I demonstrate that there was a clear pattern of judicial behavior in civil and political rights cases across time (despite administration and regime change), and argue that this persistence is best explained by institutional factors that served both to constitute and constrain judicial preferences (Hilbink 2007). This is not a crude argument about judges’ “political culture,” as Chavez (OHLP: 70-1) portrays it, but rather an analysis that takes seriously the ways that the institutional setting can (and in the Chilean case, does) affect the way judges understand what they want to do, what they think they ought to do, and what they believe they can do (Gibson 1986: 150). As Baum argues, both consciously and subconsciously, judges are motivated by a desire for respect and approval from their reference groups or audiences (2006: 43–48), and among the audiences that will be most salient for judges are professional colleagues and superiors (2006: 171). While calculations about the way the other branches will respond to judicial decisions (the “separation of powers” model) are no doubt at work to varying degrees in different courts and at different times, even high court judges “face a wide array of incentives based on personal preference, professional ethos, and the institutional environment in which they operate” (Halberstam OHLP: 151). Scholars of comparative judicial politics should thus take care not to mischaracterize or write off analyses that give explanatory weight to legal and judicial (that is, “internal” (Chavez OHLP: 75)) variables. Not only is it incorrect to equate such analyses with traditional legal formalism or crude cultural arguments, but rejecting them may prevent us from identifying when and how legal rules and norms actually matter, or when they matter more or less and why.
This brings me to my third and final observation, which is that there appears to be an unfortunate tendency among scholars of comparative law and courts to define and portray the “political” in narrow instrumental (or “realist”) terms. Because of the strong influence of rational choice approaches in the discipline, much theorizing on judicial empowerment and judicial behavior has proceeded on several core assumptions. The first is that interests are the driving force behind political decision making, and that interests are independent of ideas, which are simply tools that political actors invoke, ignore, or attack in order to advance their pre-existing interests. The second is that the primary interest of political actors, be they dressed in suits, robes, or uniforms, is the maximization of their personal, partisan, or institutional power. And the third is that outcomes, such as the establishment or maintenance of judicial independence (Chavez OHLP; Vanberg OHLP), or the expansion of the judicial role (Ginsbug OHLP; Hirschl OHLP) are the product of coldly rational and strategic calculations to advance this primary interest.
To be sure, arguments based on these assumptions are a welcome corrective to overly functionalist or naively idealistic accounts that leave power considerations out of the picture. I do not wish to detract from or dismiss the very valuable contributions to the literature that have been based on these assumptions. However, in their zeal to “bring the politics back in,” comparative judicial theorists have tended to go too far in the [*1101] opposite direction, reducing everything to “exogenously specified” (Ginsburg OHLP: 91) raw power calculations. Identities, norms, and social aspirations and aversions (Scheppele 2003) have been treated as (at best) interesting but politically, and hence causally, irrelevant.
Yet an increasing number of “microstudies” (Ginsburg OHLP: 93) reveal that the dichotomy between ideas and interests in judicial politics is a false one, and that arguments based on rational-strategic/realist assumptions are unable to account for the timing, nature, and outcome of the establishment and exercise of judicial independence and the rule of law. The aforementioned volume by Halliday, Karpik, Feeley (2007) contains several chapters, including one by Ginsburg, that highlight the importance of ideas, and the mechanisms through which ideas are transmitted and implemented in fights for political liberalism. And in a collective work in progress, Patricia Woods and I are bringing together analyses of judicial empowerment in seven countries that highlight the ways in which ideational factors, social processes, and historical trajectories drive the way that political actors, in and out of the courts, perceive their interests and construct their strategies, and, thereby, shape the timing and nature of outcomes.
Ultimately, what we should strive for in comparative judicial studies is to transcend the old, stale binary of law qua naïve idealism and politics qua pure instrumentalism and get on with analyses that treat both law and politics more generously. We should allow for the possibility (but never assume) that law limits the discretion of decision makers, and never assume (even if the possibility is much greater) that discretionary decision makers seek, whenever possible, to avoid or subvert law. In her chapter in the OHLP on the European Court of Justice (ECJ), Karen Alter describes how a debate previously polarized between a “heroic” legalist narrative about the ECJ role in European integration and a more hard-nosed political account casting the ECJ as a mere “agent” of individual states has given way to a “view that both legal and political considerations influence ECJ jurisprudence.” The convergence around what she calls a “comparative politics narrative,” which treats ECJ decision making as only one step in a more complex chain, represents in her view “the maturation of European law scholarship” (Alter OHLP: 217). It is my hope that work on comparative law and courts can and will undergo a similar maturation, the hallmark of which would be a recognition that while there may be politics in all decisions interpreting and applying law, this does not necessarily render law irrelevant, and, moreover, that while all law involves politics, only certain kinds of politics involve law. Pursuing research that seeks to identify the conditions under which law matters in public decision making (by judges or other actors), how it matters, and when it ceases to matter across time and space would allow us to claim the title of true comparative “law and politics” scholars.
Baum, Lawrence. 2006. JUDGES AND THEIR AUDIENCES: A PERSPECTIVE ON JUDICIAL BEHAVIOR. Princeton: Princeton University Press. [*1102]
Brinks, Daniel. 2008. THE JUDICIAL RESPONSE TO POLICE KILLINGS IN LATIN AMERICA: INEQUALITY AND THE RULE OF LAW. New York: Cambridge University Press.
Gibson, James L. 1986. “The Social Science of Judicial Politics.” In POLITICAL SCIENCE: THE SCIENCE OF POLITICS. Herbert F. Weisberg (ed). New York: Agathon Press.
Halliday, Terence, Lucien Karpik, and Malcolm Feeley (eds). 2007. FIGHTING FOR POLITICAL FREEDOM: COMPARATIVE STUDIES OF THE LEGAL COMPLEX AND POLITICAL CHANGE. Oxford: Hart Publishing.
Hilbink, Lisa. 2007. JUDGES BEYOND POLITICS IN DEMOCRACY AND DICTATORSHIP: LESSONS FROM CHILE. New York: Cambridge University Press.
Scheppele, Kim Lane. 2003. “Aspirational and Aversive Constitutionalism: The Case for Studying Cross-constitutional Influence through Negative Models.” I.CON 1(2): 296-324.
© Copyright 2008 by the author, Lisa Hilbink.