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Editor’s Choice: Mark Tushnet

Mark Tushnet, Harvard Law School

[ICON Editors’ Choices for New Year Readings and Gifts: ICON’s Book Review Editor, Isabel Feichtner, invited our Board members to reflect on the books that have had a significant impact on them this year. In the following weeks they will present their selections here on I*Connect. They write about books, not necessarily published in 2014, but read or reread this year, and which they found inspiring, enjoyable or consider ‘must reads’ for their own work or comparative constitutional law scholarship in general. These editors’ choices are not intended to be a prize in disguise, but rather are personalized accounts of the reading experiences of our Board members.]

The Politics of Principle. The First South African Constitutional Court, 1995-2005 by Theunis Roux (Cambridge University Press 2013): This is not only an extremely informative analysis of the first decade of South Africa’s Constitutional Court but also a substantial contribution to the developing positive theory of when constitutional review becomes entrenched (and when it does not). Roux acknowledges the importance of the political context within which constitutional courts are established and operate, but finds the prevailing accounts incomplete because they do not take the quality of a court’s work into account. His discussion of the role of quality in establishing constitutional review is theoretically quite sophisticated. For Roux, “quality” is relative to a national tradition’s legal/constitutional culture, and cannot be “measured” or evaluated without essential regard to that culture. The elevator story is this: The legal/constitutional culture gives participants standards they use to evaluate judicial quality, and the degree to which participants believe those standards satisfied affects the support they will give to the constitutional court. That support operates independently of the political environment, and sometimes can open space for the constitutional court to operate in conflict with the predominant political forces.

Roux’s argument suggests that comparative constitutional analysis may be even more difficult than the usual caveats would have it, because outsiders cannot grasp a nation’s legal/constitutional culture in the way that insiders can. And, to the extent that quality matters and is relative to that culture, the outsider’s assessment will be incomplete. (This difficulty may be offset by the possibility that outsiders can have a critical distance on the nation’s legal/constitutional culture that allows them to see some things that insiders find hard to discern.) So, for example, I think it quite difficult for U.S.-trained legal scholars, who have a deep exposure to American Legal Realism, to fully appreciate the depth of the commitment in Australian legal culture to formalism – and so to fully appreciate why the innovations of the Mason Court were so resisted and short-lived. And, of course, that is a comparison between two common-law constitutional systems. Some comparisons across the common law/civil law divide may be even more difficult.

Roux’s work theorizes how judicial quality can affect the development of constitutional review, and – perhaps equally important – begins to develop what seems to me an extremely productive line of inquiry into the role legal/constitutional culture plays in the larger constitutional system.

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Published on December 31, 2014
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