Unpacking Prof Roux’s Book - The Politico-Legal Dynamics of Judicial Review: a Comparative Analysis

On 21 February 2019, the SARChI in Multilevel Government, Law and Policy invite Prof Thenius Roux to discuss his recently published book, The Politico-Legal Dynamics of Judicial Review: a Comparative Analysis.

The book is a contribution to the comparative study of constitutionalism and judicial review. Its main purpose is to direct scholarly attention away from the empirically measurable, causal impact of politics on constitutional adjudication to the slower-moving process of ideational change that the adoption of a system of judicial review sets in motion.

Every country that adopts such a system, Roux argues, necessarily draws on an existing tradition of thinking about law’s appropriate relationship to politics. As a conceptual matter, there are four main ways in which law’s legitimate claim to authority may be reconciled with claims to political authority: democratic and authoritarian legalism, and democratic and authoritarian instrumentalism.

A system of judicial review may either be adopted to instantiate an existing legitimating ideology of this sort or deliberately to transform it. Either way, there is no necessary correlation between the conception of law's appropriate relationship to politics that the formal Constitution embodies and actually existing conceptions in the society concerned, which may in any case be contested. Under certain conditions, however, a hegemonic legitimating ideology of law's appropriate relationship to politics may emerge in the form of a determinate 'judicial review regime'. Once consolidated in this way, judicial review regimes tend to be reasonably sticky.

Transformation of a judicial review regime, the twentieth-century American experience and other examples suggest, requires two things: a major exogenous shock and a group of legal-cultural actors willing and able to exploit the shock to drive the transformation forward. Having refined its understanding of the relevant social process in this way, Roux’s book turns to testing its typological theory of judicial-review-regime change in a ten-country comparison.

Roux concludes that the slower-moving ideational process his book describes is distinct from both formal constitutional change and everyday constitutional politics. While this insight says nothing on its own about the moral justifiability of judicial review, it shows why political theorists such as Jeremy Waldron are wrong to think that this question can be treated as a purely normative one. On a more practical level, the book’s findings also have distinct implications for constitutional design, judicial decision-making and social movement activism.

Theunis Roux is a Professor of Law at the University of New South Wales in Sydney. He was the founding director of the South African Institute for Advanced Constitutional, Public, Human Rights and International Law (now a Centre of the University of Johannesburg) and is a former Secretary-General of the International Association of Constitutional Law. His earlier monograph with Cambridge University Press, The Politics of Principle: The First South African Constitutional Court, 1995-2005, was published in 2013.