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A political decision must affect the lives of many people. However, many cases that are not purely political e. Likewise, what may be considered a controversial p. Ireland , or may be a nonissue in yet another polity. That elusive yet intuitive distinction is what differentiates the judicialization of mega-politics form the first two levels of judicialization.
Consider the following examples—all are seldom addressed by American constitutional theory, often preoccupied with rights jurisprudence and with matters American. The judicialization of mega-politics includes several different types of controversies, not all of which are equally problematic from the standpoint of canonical constitutional theory. One emerging subcategory of judicialized mega-politics is the increased judicial scrutiny of core prerogatives of legislatures and executives in foreign affairs, fiscal policy, and national security.
In its landmark ruling in Operation Dismantle —a challenge to the constitutionality of U. In the Chechnya Case , the Russian Constitutional Court agreed to hear petitions by a number of opposition members of the Duma, who challenged the constitutionality of three presidential decrees ordering the Russian military invasion of Chechnya. A second area of increased judicial involvement in mega-politics is the corroboration of regime change.
This was the first time a constitutional court refused to accept a national constitutional text drafted by a representative constitutionmaking body. The most prevalent subcategory here is the judicial scrutiny of the pre-electoral process in virtually all countries where elections, referenda, or plebiscites take place. In some instances this is done via scrutiny, at times compulsory, of candidates and voter registry by electoral commissions that often comprise judges. In terms of jurisprudence, courts are frequently called upon to decide on matters such as party funding, campaign financing, and broadcast advertising during election campaigns; the redrawing of electoral districts; and the approval or disqualification of political parties and candidates.
Over the last decade, courts in a number of countries, notably Bangladesh, Belgium, India, Israel, Spain, Thailand, and Turkey, have banned or come close to banning popular political parties from participating in national elections. During the last decade alone, constitutional courts in over twenty-five countries have been called upon to determine the political future of prominent leaders through impeachment or disqualification trials.
To that list one could add corruption indictments against heads of state e. Calderon won the election by a less than 0. Constitutional courts have also played key roles in deciding election outcomes in states and provinces. Even the fate of elections in the exotic island nations of Madagascar and Trinidad and Tobago has been determined by judicial tribunals. Clearly, the Bush v. Gore courtroom struggle over the fate of the American presidency was anything but an idiosyncratic moment in the recent history of comparative constitutional politics.
A fourth emerging area of mega-politics that has been rapidly judicialized over the past few decades is that of transitional or restorative justice. Recall, for example, the judicialization of restorative justice in the early years of the p. Similarly, the Pinochet affair can be thought of as an example of the judicialization of restorative justice dilemmas in post-authoritarian Latin America. Another example would be the major role played by the newly established constitutional courts in post-Communist Europe: A paradigmatic case here is the decision of the constitutional court of the Czech Republic to uphold a law that declared the entire Communist era in the former Czechoslovakia illegal.
These courts also made landmark rulings pertaining to Holocaust-related reparative justice and restitution policies. The judicialization of restorative justice is also evident at the transnational level. Here too there are many examples. The International Criminal Court ICC ratified by ninety countries as of was established in as a permanent international judicial body with potentially universal jurisdiction pertaining to genocide, crimes against humanity, war crimes, and so on.
Notorious leaders such as Slobodan Milosevic, Charles G. Taylor, and Saddam Hussein, were all put to trial before this new nexus of war crime tribunals. A few examples of this phenomenon include: Following a slim loss by the Quebecois secessionist movement in the referendum, the federal government was quick to draw upon the reference procedure to ask the Supreme Court to determine whether a hypothetical unilateral secession declaration by the Quebec government would be constitutional. The court accepted the challenge with open arms and took the liberty to articulate with authority the fundamental pillars of the Canadian polity in a way no other state organ has ever done before.
While many public policy matters still remain beyond the ambit of the courts Graber ; Schauer , in numerous countries throughout the world, there has been a growing legislative deference to the judiciary, an increasing and often welcomed intrusion of the judiciary into the prerogatives of legislatures and executives, and a corresponding acceleration of the process whereby political agendas have been judicialized. Together, these developments have helped to bring about a growing reliance on adjudicative means for clarifying and settling fundamental moral controversies and highly contentious political questions, and have transformed national high courts into major political decisionmaking bodies.
The wave of judicial activism that has swept the globe in the last few decades has not bypassed the most fundamental issues a democratic polity ought to address—whether it is the corroboration of new political regimes, coming to terms with its own often not so admirable past, or grappling with its embedded collective identity quandaries. Although foundational political questions of this nature may have certain important constitutional aspects, they are neither purely, or even primarily, legal dilemmas.
As such, one would think, they ought to be resolved, at least on the level of principle, through public deliberation in the political sphere. Nonetheless, constitutional courts throughout the world have gradually become major decisionmaking bodies for dealing with precisely such dilemmas.
Fundamental restorative justice, regime legitimacy, and collective identity questions have been framed in terms of constitutional claims often for rights and entitlements , and as such have rapidly found their way to the courts. Scholars have identified a number of possible reasons and explanations for the judicialization of politics. Akin to any other major sociolegal phenomenon, no simple or single explanation can account for its wide range of manifestations. Given that a confluence of elements must exist, it is most productive to consider the factors that are, ceteris paribus , conducive to the judicialization of politics.
These may be grouped into three main categories: As a bare minimum, the judicialization of politics requires the existence of a reasonably independent judiciary, with a well-respected and fairly active apex court. If the constitution does not list tangible and defensible rights that individuals hold against the state, then judicial review is based on limited ultra vires principles, and is generally confined to procedural matters. In these circumstances, intervention by the judiciary in fundamental moral controversies or in highly political or politicized issues is generally unlikely.
What is more, the existence of a constitutional framework that facilitates judicial activism may provide political actors who are unable or unwilling to advance their policy preferences through majoritarian decision-making arenas with an alternative institutional channel the courts for accomplishing their policy goals. Therefore, in countries where bills of rights and active judicial review procedures have been adopted, one can expect a significant growth in the frequency and scope of the exercise of judicial review, and a corresponding intrusion by the judiciary into the prerogatives of both legislatures and executives.
Likewise, the adoption of multilateral treaties and international agreements that contain justiciable provisions, and the accompanying establishment of adjudication or arbitration tribunals at the supranational level, are preconditions for the judicialization of international trade disputes. In the United States, only a posteriori and concrete judicial review is allowed. Judicial review of legislation, whether exercised by lower courts or by the Supreme Court, is a power that can only be exercised by the courts within the context of concrete adversary litigation; i.
In France, by contrast, judicial review is limited to an a priori and abstract judicial review. The Conseil Constitutionnel has pre-enactment constitutional review powers, but no power to nullify a law after it has been enacted by the legislature. In the latter capacity, national high courts in such countries could outlaw a statute before it was formally enacted on the basis of hypothetical constitutional arguments about its potential effect.
Judicial review in Canada, for example, is not limited to review within the context of concrete adversary litigation. The reference procedure allows both the federal and provincial governments in Canada to refer proposed statutes or even questions concerning hypothetical legal situations to the Supreme Court or the provincial courts of appeal for an advisory abstract opinion on their constitutionality. It is hardly surprising therefore that some of the most contentious issues in Canadian politics of the last few decades have reached the Supreme Court through the reference procedure.
Moreover, unlike in the United States, most countries that employ an a priori and abstract review model allow public officials, legislators, cabinet members, and heads of state to initiate judicial scrutiny of proposed laws and hypothetical constitutional scenarios, thereby providing a constitutional framework hospitable to the judicialization of politics and the accompanying politicization of the judiciary.
In France and Italy, for example, the initiation of constitutional litigation in constitutional courts is limited to elected politicians. In other countries Germany and Spain, for example elected officials may challenge proposed legislation through the abstract a priori review. In short, a system that permits a priori and abstract review initiated by politicians would appear to have a greater potential for generating high levels of judicialized policy-making using the process of constitutional review Stone Another pertinent distinction is that which exists between decentralized all courts and centralized constitutional court review.
In a decentralized system for example, in the U. This model of judicial review has been adopted by many European countries that follow various branches of the civil law tradition such as Germany, Austria, Italy, and Spain , as well as by almost all new democracies in post-Communist Europe. Other variables being equal, the impact of the judiciary on public policy outcomes is likely to be more significant under a decentralized, all-court review system.
That said, administrative review—however limited—is always available to the courts in most centralized review countries. Moreover, the symbolic importance of landmark high-court decisions in such countries is at least as significant as that of national high-court rulings in countries employing a decentralized review system. Another important aspect of judicial review that has implications for the judicialization of politics is the question of standing locus standi and access rights: In the United States, standing rights have been traditionally limited to individuals who claim to have been affected by an allegedly unconstitutional legislation or official action.
Supreme Court will not hear a challenge to the constitutionality of legislation unless all other possible legal paths and remedies have been exhausted. However, constitutional democracies that employ a priori and abstract judicial review such as France allow for, and even encourage, public officials and political actors to challenge the constitutionality of proposed legislation.
Several polities authorize their constitutional court judges, in an ex-officio capacity, to initiate proceedings against an apparently unconstitutional law. Other countries South Africa, for example impose mandatory referrals of constitutional questions by lower courts to a constitutional tribunal. And yet other countries, most notably Israel and India, allow private-person constitutional grievances to be submitted directly to their respective high courts.
In addition to legislative frameworks, constitutional courts in most liberal democracies have continuously liberalized the rules of standing and expanded intervener e. Other variables being equal, liberal standing and accessibility rights along with lowered barriers of nonjusticiability provides an important p. It depends to a large extent upon judicial willingness to engage in public policy-making. In that respect, an increasing number of scholars suggest that judges do not behave or reach decisions in a way that is fundamentally different from other branches of government.
Courts are political institutions not merely because they are politically constructed, but also because the determinants of judicial behavior are not distinctly different from the determinants of decision-making by other public officials. Of particular relevance to the judicialization of politics are some insights drawn from the strategic approach to the study of judicial behavior. Courts may realize that there are circumstances—such as the changing fates or preferences of other influential political actors, or gaps in the institutional context within which they operate—in which they may be able to strengthen their own position by extending the scope of their jurisprudence and fortifying their status as crucial national policy-making bodies.
Courts must be responsive to the political environment in which they operate in other respects p. Because justices do not have the institutional capacities to enforce their rulings, they must take into account the extent to which popular decision-makers will support their policy initiatives McGuire and Stimson Judges seem to care about their reputation within their close social milieu, court colleagues, and the legal profession more generally Baum And with the increasing internationalization of constitutional discourse, the judicialization of politics primarily through constitutional rights litigation may also support the interests of a supreme court seeking to increase its symbolic power and international prestige by fostering its alignment with a growing community of liberal democratic nations engaged in judicial review and rights-based discourses.
The centrality of judicial will in explaining the judicialization of politics is often emphasized by constitutional theorists critical of judicial activism. Tushnet ; Bork ; Kramer In my opinion, portraying courts and judges as the main source of judicialization is misguided.
Courts are first and foremost political institutions. Like any other political institutions, they do not operate in an institutional or ideological vacuum. Their establishment does not develop and cannot be understood separately from the concrete social, political, and economic struggles that shape a given political system. Indeed, constitutionalization, political deference to the judiciary, and the expansion of judicial power more generally, are an integral part and an important manifestation of those struggles, and cannot be understood in isolation from them.
And this brings us to the final category, political determinants of judicialization. A favorable constitutional framework and an active judiciary are important contributors to the judicialization of politics. However, this unprecedented level of political jurisprudence cannot develop, let alone be sustained, without the receptiveness and support, tacit or explicit, of the political sphere itself.
Recent studies of comparative judicial politics propose a number of explanations for the expansion of judicial power and the corresponding judicialization of politics. These may be grouped into three subcategories: The proliferation of democracy worldwide is a main cause of judicialization and the expansion of judicial power more generally.
By its very nature, the establishment of a democratic regime entails the establishment of some form of separation of powers among the major branches of government, as well as between the central p. It also entails the presence of a set of procedural governing rules and decision-making processes to which all political actors are required to adhere. The persistence and stability of such a system, in turn, requires at least a semi-autonomous, supposedly apolitical judiciary to serve as an impartial umpire in disputes concerning the scope and nature of the fundamental rules of the political game.
Active judicial review is both a prerequisite and a byproduct of viable democratic governance in multilayered federalist countries Shapiro In other words, more democracy equals more courts. And it does not provide an adequate explanation for increased levels of judicialization in polities that have not undergone any apparent changes in their political regime. From a functionalist standpoint, judicialization may emanate from the proliferation in levels of government and the corresponding emergence of a wide variety of semi-autonomous administrative and regulatory state agencies as the main driving forces behind the expansion of judicial power over the past few decades Shapiro and Stone Sweet According to this thesis, independent and active judiciaries armed with judicial review practices are necessary for efficient monitoring of the everexpanding administrative state.
Moreover, the modern administrative state embodies notions of government as an active policy-maker, rather than a passive adjudicator of conflicts. It therefore requires an active, policy-making judiciary Feely and Rubin Along the same lines, the judicialization of politics may emanate from a general waning of confidence in technocratic government and planning, and a consequent desire to restrict the discretionary powers of the state, resulting in a diffusion of judicial power Shapiro Some accounts of the rapid growth of judicialization at the supranational judicial level portray it as an inevitable institutional response to complex coordination problems deriving from the systemic need to adopt standardized legal norms and administrative regulations across member states in an era of converging economic markets Stone Sweet In some instances, economic liberalization may be an important pro-judicialization factor.
Hence bills of rights matter to the extent that a support structure for legal mobilization—a nexus of rights-advocacy organizations, rights-supportive lawyers and law schools, governmental rights-enforcement agencies, and legal-aid schemes—is well developed. In other words, while the existence of written constitutional provisions is a necessary condition for the effective protection of rights and liberties, it p.
Legal mobilization from below is aided by the commonly held belief that judicially affirmed rights are self-implementing forces of social change removed from the constraints of political power. This belief has gained a near-sacred status in public discussion. An all-encompassing judicialization of politics is, ceteris paribus , less likely to occur in a polity featuring a unified, assertive political system that is capable of restraining the judiciary.
In such polities, the political sphere may signal credible threats to an overactive judiciary that exert a chilling effect on courts. Conversely, the more dysfunctional or deadlocked the political system and its decision-making institutions are in a given rule-of-law polity, the greater the likelihood of expansive judicial power in that polity Guarnieri et al. Greater fragmentation of power among political branches reduces their ability to rein in courts, and correspondingly increases the likelihood of courts asserting themselves Ferejohn Conversely, political oppositions may seek to judicialize politics for example, through petitions and injunctions against government policies in order to harass and obstruct governments Tate and Vallinder At times, opposition politicians may resort to litigation in an attempt to enhance their media p.
A political quest for legitimacy often stands behind the transfer of certain regimechange questions to courts. Empirical studies confirm that national high courts in most constitutional democracies enjoy greater public legitimacy and support than virtually all other political institutions. This holds true even when courts engage in explicit manifestations of political jurisprudence Gibson et al.
However, when a ruling party has a low expectation of remaining in power, it is more likely to support a powerful judiciary to ensure that the next ruling party cannot use the judiciary to achieve its policy goals Ramseyer ; Ginsburg Such groups and their political representatives—who possess disproportionate access to, and influence over, the legal arena—are more likely to delegate power to the judiciary when they find strategic drawbacks in adhering to majoritartian decision-making processes or when their world-views and policy preferences are increasingly challenged in such arenas.
For example, constitutional courts have become key guardians of secular or moderate interests against the increasing popularity of principles of theocratic governance Hirschl Likewise, when elected politicians are obstructed from fully implementing their own policy agenda, they may favor the active exercise of constitutional review by a sympathetic judiciary to overcome those obstructions Hirschl b ; Whittington Think of the standardizing effect of apex court jurisprudence in vast and exceptionally diverse polities such as the United States or the European Union.
Occasionally, courts may respond to counterestablishment challenges by releasing rulings that threaten to alter the political power relations in which the courts are embedded. However, as the recent history of comparative constitutional politics tells us, recurrent manifestations of unsolicited judicial intervention in the political sphere in general—and unwelcome judgments concerning contentious political issues in particular—have brought about significant political backlashes, targeted at clipping the wings of over-active courts. In some instances e.
Russia in , or Ecuador in , or Pakistan in they have resulted in constitutional crises leading to the reconstruction or dissolution of high courts. To this we may add another political response to unwelcome rulings: In short, the judicialization of politics is derivative first and foremost of political, not judicial, factors. In sum, over the last few decades the world has witnessed a profound transfer of power from representative institutions to judiciaries, whether domestic or supranational. One of the main outcomes of this trend has been the transformation of courts and tribunals worldwide into major political decision-making loci.
Instead, a confluence of institutional, societal, and political factors hospitable to the judicialization of politics is necessary to create and sustain it. Of these factors, three stand out as being crucial: Establishing the Supremacy of European Law. Judges and Their Audiences: A Perspective on Judicial Behavior. The Worldwide Rule of Judges.
Law and Politics in the European Union. Comparative Political Studies , The Division of Labor in Society. University of Chicago Press. The aprioristic association of purposeful action, or action in search of an end, with a framework of utility maximization, risks overlooking a set of motivational factors that are critical in explaining political behavior in constitutional revolutions, especially where coinciding with social rupture.
However, rational choice approaches dominate comparative constitutionalism, and their conception of agency contrasts with the expanded notion of agency delineated above. Agents, we are told, evaluate their options in light of their benefits and costs, and pursue the option that is most likely to maximize the difference between the two, given the constraints faced. Constitutional pre-commitment to social rights is accordingly expected to be at its highest when it maximizes the preferences of the political actor dominating the constitution-making process.
To test this hypothesis against the Portuguese case we need to unpack it into three related questions. First, which political actor s dominated the constitution-making process Section 4.
UK law is tainted by association even if the common law may remedy some of the effects by relying on other sources of rights, including legislation. Ken Roth gave a clue as to the meaningfulness of economic and social rights for instance when he advocated for legal action only in limited circumstances. Until that time we must still ask what will be lost if the Convention system is discarded or reduced to the periphery? This marginalization of the assembly, together with the impeding menace of its disbandment, resulted in its relative insulation from the yoke of partisan polarization and in socialization between constituents across party lines. However, the growing political significance of courts has not only become more globally widespread than ever before.
Second, was the optimization of their preferences their primary mover or can we devise better alternative explanations for why they acted the way they did Sections 4. Third, to what degree were constituents bound by the politics of partisanship Section 4. The remainder of this section searches for answers to these questions.
The answer to the first question must be sought in the nature of the transition and the outcome of the election for the Constituent Assembly, which took place on April 25, Endowed with revolutionary legitimacy, the military was a key player in the constitution-making process. Days before the election for the Constituent Assembly, they forced the parties to sign a pact concerning the general ideological content of the constitution.
But to their surprise, the struggling moderate political parties emerged from the election as a political force to contend with. The electoral result changed the balance of power and the dynamics of the transition. But since the Constitution needed approval by at least constituents, this was not a one-party assembly.
However, if in other subjects e. This has consequences for the explanatory value of the electoral market thesis. If the military were not an electoral player as such, the other dominant political actor, the Socialist Party, was. Applying the electoral market thesis to them, the question arises: Can the vigorous constitutional entrenchment of social rights be attributed to the Socialists and interpreted as their way of strategically locking-in their policy preferences in answer to the interests of the groups and constituencies on which they electorally depended?
First, there is the question of attribution. The drafting of the Constitution began with the submission of constitutional projects by the political parties. These projects were the basis for the work of drafting committees, specializing in different sections of the Constitution, in which parties were represented according to their electoral weight.
Does this mean that in pushing for the constitutionalization of social rights the Socialists were protecting their policy preferences against different preferences exhibited by other parties? The constituent moment was one of great party polarization, with parties vigorously engaged in shaping partisanship outside the assembly. However, the objective of enshrining the institutions of an active welfare state crossed partisanship lines. In all of them, social rights were not only present, but were also roughly the same. All projects stated these rights with an almost equal precision, and detailed the institutions and policies required for their effectuation.
This was proved retrospectively by the fact that where forced consensus prevailed, the constitutional settlement was questioned the moment the military lost their bargaining power: By contrast, the charter on social rights survived the change in the balance of forces, remaining virtually untouched up to now.
The doubt arises not because the Socialists faced no uncertainty about the prospect of dominance in future elections, and therefore did not feel the need to win the electorate with promises, such as the constitutional promise of an expansion in social benefits. Electoral uncertainty was undoubtedly there. But the fact that the Socialists faced no serious challenge with which they needed to compromise when pressing for the constitutionalization of social rights was public knowledge, and further made known in the plenary debates.
The electoral variant of the partisan politics thesis faces yet a final challenge, both conceptual and empirical. One might be tempted to claim that in their decision to entrench social rights, the Socialists were influenced by the preferences of their constituencies and by organized interests who understood the politics of institutional choice and made demands or exerted pressure accordingly.
Behind this view of legislative politics lies a particular model of representation: The rationale is simple. Constituencies and preferences do not emerge directly from social divisions, nor gain consistency apart from the partisan politics in which they are formed. Rather, they are co-construed and need for their existence to be interpreted, represented, personified, and even dramatized, by social movements and political actors.
In other words, they are endogenous to the political process, and cannot serve as basis for party responsiveness, because they do not have the independent causal import normally assigned to them. If this is generally the case, it is all the more so when a party system and constituencies are being formed anew, as was the case in Portugal after the revolutionary break.
The emergent parties—all but the Communist Party—did not have strong social roots or traditional constituencies. They were rather tentatively searching out and actively constructing them in competition with one another. Despite their affiliation with the Socialist International and the European Social Democrats, the ideological template of the Socialists was broad, and included distinctively Marxist and utopian Socialist elements.
On the eve of the election, they were unsure about their electoral base. Their proposed policies and discourse were clearly leftist, but their anti-Communist stance found them important support from constituencies more to the right. To convince voters on the one side, without losing those on the other, was to strike a fine balance. Their process of representation, like that of the other newly formed parties, had a distinctively generative and anticipatory quality: Social welfare under the dictatorship had been so incipient that these clienteles were embryonic at best.
Moreover, the self-declared purpose of all parties was to replace the corporatist welfare system, which molded any extant embryo-clienteles along occupational lines, with a universal welfare system, which eliminated them, and, the moderate parties insisted, ought to co-exist with the right to private property. In light of this, the hypothesis that the party dominating the constitutional process was strategically responding to the pressures of pre-established constituencies or interest group policy preferences when locking-in social welfare rights does not fare particularly well when applied to Portugal.
It would be even a greater stretch to suggest, from a functionalist perspective, that the Socialists were in a position to determine ex ante that constitutional pre-commitment to social rights was to advance their chances of obtaining, and keeping, office in the medium and long terms, namely by generating welfare-clienteles that could cement their electoral hegemony.
This would presuppose their command over legislatures responsible for erecting the welfare state, implementing welfare programs, and distributing social benefits. In , however, the newly formed parties did not—and could not—foresee the evolution of their electoral performance in the medium and long terms. This meant they could not be sure whether it would be them or their competitors who would be in a position to claim the initiative for widening welfare provision.
The sense of uncertainty proved correct: Any strategic electoral projections were, therefore, virtually impossible in But that actors pursuing a strategy of constitutionalization could foresee these bargains is doubtful. Only with time would it become apparent that Portugal was evolving into a two-party system, with the two major parties, the Socialists and the Popular Democrats, rotating in power. As the welfare state expanded, public sector employees and other welfare-clienteles became increasingly important constituencies for the Socialists, the only ruling party of the two, and the potency of the language of constitutional rights came into increasing use for making political claims on the left of the political spectrum.
Given the weight of welfare clienteles, the mere suggestion that a party might be equating the removal of social rights from the constitution can be electorally very costly. But long-term consequences do not explain their causes, especially where no dispositional fact can be found linking them.
There is a further reason why the partisan politics thesis might fail to explain the constitutionalization of social rights in Portugal: Let us start with the nature. Endowed with constitution-making powers, the Assembly was to be dissolved once its constituent mission was over, with some of its prominent members not presenting themselves for re-election. The exceptional character of the Assembly contributed significantly to its partial insulation from partisan politics and normal political decision-making. The contrast with Spain is instructive.
In Spain, therefore, constituents were also normal MPs, with high stakes in post-constitutional politics, and the constitution-making process was more deeply embedded in partisan politics and highly permeable to the pressures of organized interest groups, most notably the Catholic Church.
The constitutional negotiation process was so divisive that it came to a stalemate, and a new decision-making procedure had to be adopted: This marginalization of the assembly, together with the impeding menace of its disbandment, resulted in its relative insulation from the yoke of partisan polarization and in socialization between constituents across party lines. The marked difference between how constituents acted on the floor and behind closed doors attests to this.
The moderate parties used publicity moments as an outlet for their grievances against the revolutionary left provisional governments and for messages addressed to the military. The plenary debates, in particular, were taken as an opportunity to demarcate themselves from aspects of the constitutional settlement they would eventually be forced to agree to, whilst ideologically at odds with, as well as to demarcate themselves from one another before their targeted constituencies. Out of the limelight, in the committees, plebiscitary rhetoric gave way to a more cooperative stance.
The relative insulation of drafting committees from partisan polarization was reinforced by their freedom from excessive party leadership interference.
Although this did not necessarily apply to the radical left, their parties being very centralized and hierarchical, constituents representing moderate parties benefited from a freer mandate. Although there were party coordination mechanisms in place for each parliamentary group, these mechanisms were loose and allowed for considerable freedom of action, negotiation, deliberation, and compromise within the committees. Constitutional writing could therefore be somewhat creative, especially where the military guidelines were looser. First, there was the question of the relative positioning of social rights with regards to civil and political rights, with the moderate parties insisting, against the revolutionary left, on the logical, normative, and historical priority of the latter over the former.
The symbolic value of social rights for a Constitution in search of its legitimacy was widely acknowledged, and far from negligible: Although the literature on social rights constitutionalization tends to focus on the partisan politics of structural choice, this politics may also be commanded by ideological commitments.
Thus, the thesis follows that if the dominant actors in the constitution-making process share a particular ideology, they are likely to use the constitution to lock in policies that are based on that ideology. Was this the case in Portugal? In October , the section on social rights was eventually approved by unanimous vote. However, this tells us very little still about the nature of the consensus reached, which, we shall argue, threaded a middle ground between a mere modus vivendi and a full-blown ideological consensus.
Rather than trying to maximize their constitutional benefits in proportion to the force of their electoral mandate, the moderate parties, led by the Socialists, were intent on minimizing the risks of a worst-case scenario: Forging a workable constitutional settlement—not necessarily the settlement they would have most wanted, but one with which all the parties were able and willing to live—within a reasonable deadline was therefore at the top of their priorities.
Continuous tinkering risked leading the country into civil war. In some cases, this represented a significant concession on the part of the Socialists to views radically to the left or in fewer cases significantly to the right of their ideological stance and policy preferences. Born out of the last left-wing revolution in Europe, the nascent Portuguese party system concentrated at the left end of the political spectrum.
The second largest party, the Popular Democrats, was a centrist-social democratic party, bringing together Social Democrats, Liberals, and some Christian-Democrats, while the Christian Democrats were a more conservative party. On both these parties, however, the influence of Catholic social thought was strong, and explained their commitment to market social regulation and a distributive welfare state, intent on protecting human dignity and well-being. It was from these multiple and sometimes intersecting ideological families that each party drew principled reasons to commit to social rights as essential to break away from the social injustices of the past and set social cooperation on new and fairer terms.
But profound ideological divergences subsisted, namely over the historical meaning and the desirable ways of implementing these rights. Different understandings of the genesis of social rights resulted in different understandings of their meaning: This had implications for their implementation. Communists wanted workers and their families to be the chief beneficiaries of the welfare system, whose funding should fall on other classes. Socialists granted social rights universally, but put them at the service of a strongly redistributive politics.
Ideological disagreement extended also to the institutions responsible for welfare. Whereas for Communists and Socialists the provision of welfare belonged to the state as the collective agent of popular emancipation, Popular Democrats and Christian Democrats insisted that welfare was primarily a social responsibility binding each to every other member of society.
Hence the delivery of social provisions ought to be secured by state and civil society alike especially the Catholic Church , a partnership on which, they claimed, the liberty of the person from the state depended. In the face of these and other disagreements, the agreement of all parties to the articles on social rights could have been achieved by carrying them to a high level of abstraction or by settling on loose formulations, as would happen in Spain. Instead, in Portugal, social rights and their implementation mechanisms were constitutionalized in excruciating detail.
In face of unresolved dissensus, parties were able to agree on detailed individual provisions by following essentially two routes. An avoidance strategy, whereby especially contentious formulations and unnecessarily divisive elaborations of the rationale behind the rights were voiced in the debates, but kept away from the written word of the Constitution. This was complemented by the decision of keeping ideological tension within the Constitution, with social rights showing a double framing, within the Socialist—Marxist constitutional model imposed by the military tutelage and a less prevalent, but important, western model, infiltrated by the moderate parties.
An example of this is the incorporation in the section of articles at odds with it, and with one another: Prominent jurists were key to this: The staggering expansion of constitutional social rights in the Constitution coincided with a very significant increase of the powers of judicial review. It predicts that where the design of judicial review occurs in a context of uncertainty and in which no single political actor dominates, judicial review will be constitutionalized in moderate terms and in a way that prevents any single political actor from enjoying control over how constitutional rules will be interpreted.
By contrast, the more the constitution-making process is dominated by a single actor anticipating no control over future legislatures, the more strongly this actor will seek to entrench his powers of constitutional review. In Portugal, by contrast, the military was in command, and fearful of losing control over future legislative elective institutions, they would have imposed on parties the incorporation of both social provisions and a strong military guardianship over the implementation of those provisions into the constitution.
In the aftermath of the coup, judicial review was renegotiated between military and parties on a more equal footing. In their counterproposal, the military continued to claim broad jurisdiction, including a priori and a posteriori abstract review of legislation and the right to declare unconstitutionalities by omission when legislatures failed to implement constitutional rules, amongst them social rights.
In case of unconstitutionality by omission, they reserved the power to issue recommendations to legislatures, and, where legislatures did not abide by them, to take their place in order to ensure implementation. This was a daring proposal that faced resolute objection by all moderate parties, and did not enter the Constitution. The military seemed to be pursuing a strategy well above their powers.
Yet when one examines the origins of the then-innovative idea of unconstitutionality by omission, it becomes clear that it sprang from an enthusiastic small group of legal experts, closely tied to the Socialist Party, which was advising the military. The collaboration between military and legal experts resulted in yet another crucial institution, this time checking the power of the military. This was the Constitutional Commission, and was conceived by the legal experts advising the military as the embryo of the future Constitutional Court.
What emerges from this account is no longer a single dominant actor, uncertain about the electoral future, and using their current force to secure the guardianship of the constitution. Instead, we have a circumstance-imposed collaboration between ideologically attuned elites to find a more balanced constitutional solution, in which the Socialists not to speak of the other moderate parties , knowing of the transitory nature of the settlement on judicial review, were ready to make partial concessions, to gain the goodwill of the winning moderate military faction in the interim.
They are said to pay lip service to social and economic rights, while attempting to insulate policy-making from the vicissitudes of democratic politics, which can seek to promote progressive notions of distributive justice potentially disadvantageous to the status quo. The examination of the Portuguese case, an outlier case, has enabled us to bring to the fore some of these limitations.
Inferring the motives for constitutionalization from subsequent restrictive patterns of judicial interpretation of social rights, one could easily be led to believe that there was a conservative agenda in place from the start in Portugal. But this would be to falsely read history backwards. The Portuguese Constitutional Court, responsible for many of those restrictive rulings, was not created before , when the first constitutional amendment was passed.
As the partisan politics thesis predicts, parties sought to frame the Court after their own preferences, and to avoid the unpredictable influence of the President of the Republic. While the center-right wanted to pack the Court with members of higher echelons of the judiciary, for their conservative inclination, the Socialists proposed a more mixed composition, of higher and lower rank judges, and members of parliamentary and presidential appointment.
The hard bargaining and incapacity of either side to impose its preferences on the other led to a settlement that retained the broad powers of judicial review inherited from the past virtually intact. It also relocated them to a Constitutional Court for which the leftist and rightist blocks would appoint an equal number of judges, with a further judge, co-opted by ordinary judges, breaking the tie between them. Experience tells us otherwise.
The Constitutional Court has eschewed protagon ism and acting as a contra-majoritarian force. Its rulings regarding social rights, in particular, have been few and self-restrained. While the political analyst would probably be warranted in seeing this as a by-product of the alignment of beliefs and policy preferences between political and judicial elites, legal experts tend to attribute the conservative character of the rulings on social rights to the weakness of the mechanism of judicial review and the dominant influence of German legal doctrine.
Seen as cutting-edge at the time of its creation, and subsequently targeted by center-right parties as purely political, unconstitutionality by omission survived the first constitutional amendment, and is seen today as a weak judicial guarantee. All that the Constitutional Court does is to inform the legislature of the unconstitutionality; then it must wait for the legislature to act and give it efficacy.
Unsurprisingly, unconstitutionality by omission has been found in a handful of cases, only one relating to social rights. The weakness of the judicial guarantee is reinforced by the dominance of German legal doctrine. Yet Portuguese justices seem more receptive to claims of unconstitutionality founded upon notions extracted from German doctrine than from the letter of the Portuguese Constitution. The justices of the Constitutional Court tend to leave a wide margin of discretion to executives and legislatures, leaving them judgment of the options that best secure the financial sustainability of the welfare system and the fair distribution of resources.
Eventually, the prescriptive and progressive character of the social rights originally invested in the constitution came to be filtered by their restrictive interpretation. Taking the origins of social rights and judicial review seriously in comparative constitutional law implies critically surveying the theoretical, methodological, and interpretive choices that currently inform their study, and the hypotheses these background choices generate.
The outlier case analyzed in this article allowed us to test the limits and expand the possibilities of extant explanations.
The concurrence of these factors is unlikely to repeat itself, but at least some of them will play out in other constitutional making processes, such as those prompted by the Arab Spring. There, like in Portugal, constitution-making originated from political and social revolution, and constituents are, in many cases, bound to work with two sources of legitimacy electoral and revolutionary and the aspirations of two audiences in mind: To make sense of how this impacts upon the politics of constitutionalization, one needs to expand the conception of politics underpinning the explanation of entrenched social rights beyond the realm of institutional party politics to include agonistic forms of extra-institutional politics, notably those relating to social movements.
Their role in influencing constitutional law by offering, and acting according to, alternative constitutional visions, is frequently significant, and calls for a more dialogical understanding of constitution making. The standard political science strategic modeling of the interaction between political forces involved in constitution making tends to turn a blind eye to these societal forces as well as to the specific nature and dynamics of the process of constitutional change and the constituent assembly itself.
Yet as our analysis of the Portuguese case suggested, it might be impossible to explain why social rights enter the constitution the way they do without considering aspects such as these. The stages of the constitutional process and the different actors involved in them e. Different institutional settings, with different levels of insulation from partisan politics, might allow for different types of constitutionalism and for a different treatment of social rights: Methodologically, our study pointed out the dangers of interpreting social rights constitutionalization after a conception of human agency that restricts it to some limited a priori set of motivations, and reduces constitutionalization to a form of self-interest.
The hermeneutic or interpretative strand of historical analysis we adopted allowed us to capture a broader range of motivations behind the willingness to protect social rights constitutionally. Questions of time and of located agency were integral to our inquiry into primary sources: How did political actors conceive of themselves? How did they see their historical role?