ABSTRACT
The constitutional systems of the new democracies discussed in this book have been predominantly guided – or at least strongly informed – by a speci¼c vision of constitutions. This vision could be referred to as legal or ‘new’ constitutionalism, and appears to be predominant both in theory and practice (and not only in the region discussed). This understanding of the role of constitutions in institutionalizing democratic regimes strongly emphasises what one could call a negative view of constitutions. A negative view prioritizes the imposition of limits on political powers (against the arbitrary use of power), the guarantee of adherence to standards of the rule of law and the guarantee of fundamental rights. It can be related to an instrumental rationality or function of constitutions, which can be understood in Weberian terms as permitting the purposive rationalization of politics and the political community (PĜibáĖ 2007: 3). In this instrumental dimension, constitutions are portrayed as documents that ground legality as well as depoliticized sets of rights. And constitutions make a strong distinction between the public and the private, as well as between politics and the rule of law (see Blokker 2010b). A key concern is the protection of speci¼c democratic outcomes that avoid, for instance, the tyranny of the majority (see Dworkin 1996; cf. Waldron 2006). The strong distinction between politics and law is allegedly best guarded by specialized institutions, such as constitutional courts, and through their safeguarding of fundamental rights and constitutional principles. The legal or new constitutionalism that has become dominant in recent decades emphasizes this instrumental dimension of constitutions strongly. This type of constitutionalism entails an important shift away from democratic politics and towards judicial supremacy. According to Michael Mandel ‘[r]epresentative institutions have been demoted from the sovereign entities with legally unlimited power of the nineteenth and much of the twentieth century to institutions hemmed in by legally enforceable constitutional limitations,
most characteristically found in “rigid” Charters and Bills of Rights’ (1997: 251). Also Ran Hirschl critically assesses the global trend towards legal constitutionalism:
Over the past two decades the world has witnessed an astonishingly rapid transition to what may be called juristocracy. Around the globe, in numerous countries and in several supranational entities, fundamental constitutional reform has transferred an unprecedented amount of power from representative institutions to judiciaries. Most of these polities have a recently adopted constitution or constitutional revision that contains a bill of rights and establishes some form of active judicial review. National high courts and supranational tribunals meanwhile have become increasingly important, even crucial, policy-making bodies. To paraphrase Alexis de Tocqueville’s observation regarding the United States, there is now hardly any moral, political, or public policy controversy in the new constitutionalism world that does not sooner or later become a judicial one. This global trend toward the expansion of the judicial domain is arguably one of the most signi¼cant developments in late twentieth and early twenty-¼rst century government.
