Reviews

Ran Hirschl, Towards Juristocracy:The Origins and Consequences of the New

Constitutionalism, Cambridge and London: Harvard University Press, 2004,
294pp, hb $49.95.
Many of the problems faced by constitutional democracies are said to revolve
around the tension between constitutionalism and democracy. InTowards Juristoc-
racy, Ran Hirschl worries about constitutionalism becoming the dominant part-
ner in this relationship. Hirschl uses the term ‘new constitutionalism’ to describe
this emerging global arrangement, which he sees as the outcome of a‘transforma-
tion in the relations between courts and representative institutions though the
enactment of bills of rights that has swept the world during the past few decades’
(p 217). Hirschl draws on political science to argue that an overblown constitu-
tional realm that gives judges a say about almost every aspect of social life is at
odds with the vision of a democratic society committed to social justice and mate-
rial redistribution. By drawing on the experiences of a number of constitutional
democracies ^ Israel, Canada, South Africa, New Zealand and the United States ^
he sets out to argue that an institutional arrangement that allows courts to strike
down legislative measures in the name of individual rights is, at best, a mixed
blessing. He contends that the process of constitutionalisation is a reaction of poli-
tical and economic elites to democracy’s threat to break entrenched social hierar-
chy. ‘The constitutionalization of rights is . . . not a re£ection of a genuinely
progressive revolution in a polity; rather, it is evidence that the rhetoric of rights
and judicial review has been appropriated by threatened elites to bolster their own
position in the polity’ (p 12).
The thesis so stated is important, but not particularly [Link] is original
is how Hirschl attempts to validate it. Fluent in both law and political science, he
combines quantitative analysis (eg in his discussion of the data regarding negative
versus positive rights in constitutional adjudication at pp 106-107) with close
attention to the development of legal doctrine (eg the analysis of criminal due
process rights and workers’ rights in Chapter 4). Apart from breaking with the
abstract rhetoric that has come to dominate contemporary debates about consti-
tutionalism, this empirical analysis demonstrates that the constitutionalisation of
rights is an almost insuperable obstacle in the ¢ght for social [Link] data show
courts to be reluctant ‘to diminish the stark disparities in life conditions within
and among polities in the neoliberal age’ (p 155). Hirschl presents this as a knock-
down argument against those who naively believe that ascribing limitless power
to the judiciary is one way to ¢ght social inequality. Put succinctly, if social justice
is the desired goal, Hirschl’s evidence shows that the constitutionalization of rights
is not the means to achieve it.
But why, exactly, should the constitutionalisation of rights be inimical to social
justice? In answering this question, Hirschl engages in the sort of causal analysis so
common in political science. First of all, judges are given power only when poli-
tical and economic elites have no other way to cling on to their diminishing in£u-
ence than by relinquishing direct control in favor of less direct but equally reliable
means. As the recent constitutional experiences of Israel and Canada purportedly
show, judges possess both public credibility and skill in preserving the hegemony
of those to whom they owe their power. ‘Judicial empowerment through

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 Reviews

constitutionalization thus o¡ers a convenient refuge for politicians to avoid or

delay unwanted political outcomes’ (p 15). The language of law, with its jargon
and technicalities, provides an ideal cover for the perpetuation of social hierarchy.
A critic of rights discourse, Hirschl subscribes to the view that rights-talk both
creates and legitimises a society of sel¢sh individuals whose interests do not stretch
beyond the limited horizon of their ‘unencumbered, autonomous and self-su⁄-
cient private sphere’ (p 154).What is more, the focus on courts and on their mysti-
fying language of rights impoverishes public conversation by taking o¡ the table
questions which should, in fact, be the object of vigorous public debate. The shift
away from majoritarian decision-making arenas toward insulated, professional
policy-making institutions, which characterises the move toward juristocracy,
constitutes, in Hirschl’s view, grim testament to the real nature of twenty-¢rst cen-
tury constitutional democracy (p 218). In such a world, problems like the redistri-
bution of resources and opportunities, eradication of illiteracy and poverty, and
the provision of minimal life conditions will be left untackled.
This is all very unsettling, but is Hirschl right? One problem is that he may be
attacking a straw ¢gure: does anyone really think that all that a society needs to
do if it wants to promote social justice is give judges more power? Advocates of
judicial review with some knowledge of history surely allow for the possibility
that judicial power can be [Link] argument is not simply that more power
should be given to judges, but rather that judges are better positioned, as com-
pared to other institutional actors, to decide, according to a given conception of
justice, on claims presented to them. Sophisticated advocates of judicial review do
not argue that judges should always be given priority over legislators. In fact, their
institutional argument about courts is partly a byproduct of their substantive
vision of [Link] be sure, Hirschl is right to argue that any such conception
still relies on empirical assumptions about the potential of di¡erent institutional
actors. But unless one is still captive to a version of nineteenth century determin-
ism about how social forces shape society, one cannot fail to see that the institu-
tional potential is not an absolute given. By focusing exclusively on the empirical
side of the equation, Hirschl fails to capture the dialectical relationship, which is
central to any institutional analysis, between empirical assumptions and norma-
tive commitments.
This reveals, I believe, a deeper problem. It is a mistake to frame questions
about how best to promote the values associated with democracy in terms of
means and ends. Contrary to what Hirschl implies, there is no clear division of
labour between areas of thought dedicated to ¢nding out what the ends should be
and other areas where appropriate means are worked [Link] think otherwise is to
misunderstand the nature of the social. Political science will contribute little to
our understanding of society if it fails to free itself from simpleminded concep-
tions of social causality. Hirschl tends to assume that law should be autonomous
from politics, and his problem with the new constitutionalism is that the political
has corrupted the legal. His pessimism about overcoming this predicament makes
him advocate a shift away from courts to legislatures. Yet it hardly follows that
because law and politics are intertwined ^ assuming for the moment that they
are ^ judges are doomed to be mere puppets in the hands of those who appointed
them. To show that this control obtains, one would need to point to more than

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Reviews

the fact that judges might share the same ideology or belong to the same social
elite as those who appoint them. It is well known that judges often take positions
that surprise those who appointed them. Eisenhower once said that he had made
two great mistakes during his presidency, and that both of them sat in the
Supreme Court. One possible explanation refers to the type of legal discourse that
typically crystallises in constitutional democracies and which forecloses, over
time, some outcomes that would otherwise bene¢t entrenched economic or poli-
tical [Link] allusion to an expressive, symbolic dimension of legal discourse in
the quotation from Ronald Dworkin that Hirschl uses to preface Chapter 1exem-
pli¢es this sort of argument. This presents a challenge to those who see institu-
tional actors as behaving strategically so as to further whatever agenda they
happen to be pursuing at any given point. Hirschl cannot hope to prove his thesis
without addressing this argument.
To see this point, it helps to look at alternative ways of solving the tension
between constitutionalism and democracy that combine empirical insight and
normative soundness. Scholars who believe that this tension is real and that it
should be solved ^ though there are good reasons to doubt these assumptions,
jointly or severally ^ have presented a number of arguments in addition to those
advanced by Hirschl. Some have pointed to the courts’ inability to grasp complex
questions of social policy, devise structural solutions and then follow through
with their [Link] then go on to argue for a shift away from courts
to legislatures. But this approach is only partly informed by empirical insights. A
substantive argument about the changes the political realm should undergo ^
such as reforms in campaign ¢nance, media regulation, voting rights etc ^ is
needed to supplement this position. Put di¡erently, for democracy to win over
constitutionalism, democracy itself needs a makeover.
Just as the argument for constitutionalism is informed by a substantive concep-
tion about how judges should exercise their power, so the argument for democ-
racy should be grounded in a conception of the nature and structure of the
political realm. While Hirschl distinguishes between normative and empirical
levels of analysis (as shown in his critique of current democratic practices at
p 42), he glosses over the fact that institutional analysis necessarily combines the
two. I say necessarily because it would be impossible to assess the relevance of
empirical data without using a framework, which is in turn rooted in one (or
more) normative vision(s).
One sees traces of this want to separate seemingly di¡erent dimensions of ana-
lysis in other parts of the book, where it has equally damaging [Link]
for instance the distinction between positive and negative rights. While Hirschl
does acknowledge that there might be some problems with the analytical and
normative soundness of this distinction, he nevertheless uses it as ‘an organizing
principle for understanding dominant patterns in the contemporary jurispru-
dence of many capitalist societies’ (p 105). It is on such bases that Hirschl eventually
draws conclusions about the atomistic social world that supposedly follow from
the liberal commitment to rights. But this is a non [Link] it may well be
the case that the positive/negative rights distinction is useful for mapping out the
positions of di¡erent actors on the constitutional stage, this hardly teaches us any-
thing about the commitments of liberal constitutionalism that Hirschl targets in

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this book. Moreover, heavy reliance on the questionable distinction between

positive and negative rights undercuts Hirschl’s analysis and weakens his critique
of individualism. He is right that a simplistic understanding of autonomy
explains, at least partly, indi¡erence towards grievous social inequalities in our
world, but pointing to positive and negative rights surely does not trace back the
origin or cause of perpetuation of this inequality to any deep feature of liberalism.
By focusing on the constitutional experiences of a number of constitutional
democracies, this book is a contribution to the emerging ¢eld of comparative
constitutionalism. Hirschl decries, appropriately, the provincialism that has char-
acterised constitutional thought, especially in its American versions, until quite
recently. But the choice of jurisdictions discussed in the book, namely Israel,
New Zealand, Canada and South Africa, should give us pause. They are all, with
the exception of South Africa, part of a category that Hirschl labels ‘the no appar-
ent transition scenario’. In all cases that belong to this category, a question arises as
to why the constitutionalisation happened when it did and not at some other
point in time. For instance, it is apparent why the constitutionalisation processes
in Ghana, Germany, Brazil or Romania happened when they did. Not so with the
group of countries that is scrutinised in this book. My concern is that this narrow
focus may detract from how relevant Hirschl’s conclusions ultimately are when
understood against the background of the global architecture of constitutional-
ism. Future works in this ¢eld would do well to make their ambitions truly glo-
bal, especially since so much of the emerging ¢eld of comparative constitutional
studies in North-American legal scholarship su¡ers from a decidedly less than
global focus.

Vlad Perjun

Michael Cardwell, The European Model of Agriculture, Oxford: Oxford

University Press, 2004, liv þ 447pp, hb d60.00.

In the political fallout from the failure to secure successful ‘yes’ votes in referenda
on the European Constitution in France and the Netherlands, the purpose and
direction of the EU has returned to the core of European political [Link] ¢rst
major manifestation of this came at the Brussels European Council in June 2005,
with the acrimonious failure to secure any form of agreement on the draft Frame-
work Financial Perspective 2007^2013. The key arguments within the Brussels
European Council related to the sustainability of the UK ‘Budget Rebate’ in an
EU of 25 Member States, including the new members from Central and Eastern
Europe, and the continued privileged position of the Common Agricultural Pol-
icy within the budgetary allocations for the EU. The latter argument reopened
one of the most enduring and bitter debates within the EU: what is the point of
the Common Agricultural Policy and what proportion of the resources of the EU
should it consume? By addressing the development of the issues involved in this
n
Harvard Law School.

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