A deconstructive look at constitutional review: towards the rule of law or the rule of judges?

Tez Türü: Doktora

Tezin Yürütüldüğü Kurum: Universitaet Zürich (University of Zürich), Hukuk Fakültesi, İsviçre

Tez Danışmanı: Prof. Dr. Matthias Mahlmann

Tezin Onay Tarihi: 2024

Tezin Dili: İngilizce

Özet:

Empower the judges, strengthen the rule of law—such has been the watchword behind the global spread of constitutional review over the past half-century. The judicial power to review political actions and determine their constitutionality, while costly to democracy, has emerged as a hallmark of rule-of-law governance. Once deemed an American anomaly, it gained rapid traction in the aftermath of the Second World War, and further afield after the Cold War, marking a politico-legal transformation across the globe. At its mildest, this transformation has seen politics formalized, proceduralized, riddled with legalese, and at its harshest, matters of major constitutional concern resolved through litigation rather than negotiation, persuasion or election. Judicialization, the culmination of such depoliticization, has often attracted optimism in previous research. Some portray it as progress, indeed as the ultimate in a line of steps towards the rule of law. This research, tinged with skepticism, questions whether the outcome is rather the rule of judges. Here unfolds an exploration of constitutional review as a power that not only constrains political action, but does so in ways likely to promote specific actions, value-systems, or even ideological agendas. The starting point is the potential of such power to become an instrument of hegemony—an instrument operating inside the courts but with decisive impacts well outside them. In order to analyze the risks and rewards involved, constitutional-review power undergoes a historical, theoretical, and political deconstruction.