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Lerner, Hanna --- "Interpreting constitutions in divided societies" [2018] ELECD 765; in Delaney, F. Erin; Dixon, Rosalind (eds), "Comparative Judicial Review" (Edward Elgar Publishing, 2018) 99

Book Title: Comparative Judicial Review

Editor(s): Delaney, F. Erin; Dixon, Rosalind

Publisher: Edward Elgar Publishing

ISBN: 9781788110594

Section: Chapter 6

Section Title: Interpreting constitutions in divided societies

Author(s): Lerner, Hanna

Number of pages: 18

Abstract/Description:

The chapter tackles the special case of judicial review in divided societies, where judges are required to interpret the constitution in the context of ongoing public, political, and constitutional debates on the vision of the state. While empowered judiciaries are expected to serve as chief protectors of constitutionalism and liberalism, in divided societies they often face foundational controversies left unresolved by the constitutional drafters. Under such circumstances, courts’ involvement may intensify rather than mitigate identity conflicts. Drawing on the experience of India, Israel, and Tunisia, the chapter analyzes the risks and opportunities involved in constitutional drafting and constitutional interpretation in deeply divided societies, arguing that under conditions of foundational disagreements over the basic norms and values that should underpin the state, judicial intervention in controversial issues may generate a harsh political backlash and weaken the court’s legitimacy as a political neutral defender of democratic procedures.