Political theory put to the test: comparative law and the origins of judicial constitutional review
Faculty of Law
University of Antwerp
In this article we try to answer the questions of why and when judicial constitutional review comes about as a matter of fact in some countries (as in Belgium and South Africa) but does not seem able to get off the ground in others (as in the Netherlands). More generally phrased: under what conditions is judicial constitutional review actually introduced in a particular jurisdiction? These are questions with a politico-sociological dimension, and what is striking is the extent to which these have remained underexposed in the wealth of research on the theme of judicial constitutional review. Here we will attempt to address these questions, and we will do so by outlining the political genesis and development of judicial constitutional review in Belgium and South Africa and also by checking these histories against a number of explanatory models or theories derived from political science. It turns out that the introduction of judicial constitutional review cannot simply be ascribed exclusively to the covert strategies of a particular societal class that wants to protect its value systems (as R. Hirschl argues), but might just as well be the result of a concrete systemic need of a tangible political system. Our main aim is to make suggestions for a reorientation of the theories concerned, especially by putting 'grand social theorizing' against legal dynamics, and to try to bring the two perspectives together.