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Ginsburg, Tom --- "Constitutional Law and Courts" [2012] ELECD 771; in Clark, S. David (ed), "Comparative Law and Society" (Edward Elgar Publishing, 2012)

Book Title: Comparative Law and Society

Editor(s): Clark, S. David

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781849803618

Section: Chapter 14

Section Title: Constitutional Law and Courts

Author(s): Ginsburg, Tom

Number of pages: 20

Extract:

14 Constitutional law and courts
Tom Ginsburg*


1 INTRODUCTION

The rise of constitutional courts and the expansion of constitutional jurisdiction is
surely one of the most important legal developments of the last half century. It is a
major factor driving the global judicialization of politics.1 By their nature, constitutional
courts deal with inherently political issues, and are highly visible institutions with the
potential to shape social understandings and expectations. It is therefore no surprise
that they have attracted great attention from political actors, publics and scholars.
Traditional legal theory has problematized constitutional review from a normative
perspective. Much of this work has sought to resolve the so-called `counter-majoritarian
difficulty' in which unelected constitutional courts are thought to be anti-democratic
because of their power to thwart the role of the majority. Socio-legal work, on the other
hand, tends to proceed from a positivist perspective and has demonstrated the increas-
ingly important role that constitutional law and courts play in many societies, including
many new democracies. In this sense, it poses an empirical challenge to traditional legal
theorizing because it has demonstrated that constitutionalization and democratization
tend to proceed apace.
This chapter reviews the socio-legal literature on constitutional law and courts.
It begins with a historical survey of the rise of constitutional review, followed
by an analysis of the various theories that scholars have offered to explain why
constitutional review is adopted. The chapter then examines the various and growing
number of studies of the functioning ...