The Politico-Legal Dynamics of Judicial Review A Comparative Analysis Comparative Constitutional Law and Policy Series

Comparative scholarship on judicial review has paid a lot of attention to the causal impact of politics on judicial decision-making. However, the slower-moving, macro-social process through which judicial review influences societal conceptions of the law/politics relation is less well understood. Drawing on the political science literature on institutional change, The Politico-Legal Dynamics of Judicial Review tests a typological theory of the evolution of judicial review regimes - complexes of legitimating ideas about the law/politics relation. The theory posits that such regimes tend to conform to one of four main types - democratic or authoritarian legalism, or democratic or authoritarian instrumentalism. Through case studies of Australia, India, and Zimbabwe, and a comparative chapter analyzing ten additional societies, the book then explores how actually-existing judicial review regimes transition between these types. This process of ideational development, Roux concludes, is distinct both from the everyday business of constitutional politics and from changes to the formal constitution.

1. Preliminaries; 2. A typographical theory of JR-regime change; 3. Australian democratic legalism: constant cultural cause or path-dependent trajectory?; 4. From democratic legalism to instrumentalism: India's constitutional cultural transformation; 5. The post-colonial adaptation of authoritarian legalism in Zimbabwe; 6. Testing the typological theory; 7. Findings and implications.

Theunis Roux is Professor of Law at University of New South Wales, Sydney. He was the founding director of the South African Institute for Advanced Constitutional, Public, Human Rights and International Law and is a former Secretary General of the International Association of Constitutional Law. He is the author of The Politics of Principle (Cambridge, 2013) and co-editor, with Rosalind Dixon, of a recent anthology of papers assessing the triumphs and disappointments of post-apartheid South African constitutionalism.