A Response to Hirschl's Hegemonic Preservation Thesis: An Overly Pessimistic Outlook?
Judicial review in some form or the other is prevalent in most constitutions today. Why is it that this trend has caught on globally? Several different answers have been provided by scholars. Some like Alec Stone Sweet argue that it was the result of the importance of rights post World War II. Others argue that it was based on systemic needs, i.e., to coordinate among different levels of government or was necessary to set-up neoliberal market economies.
This account is however refuted by rational-choice theorists. In its milder form, scholars like Ginsburg argue that elites adopt judicial review as an insurance against electoral defeat. Thus, the greater the diffusion of power, the greater the likelihood that judicial review will be welcomed. Nevertheless, Ginsburg does believe that constitutional courts can be tools of progressive democratic change.
Hirschl however takes a stronger and more pessimistic view. He argues that judicial review is adopted when ruling elites are threatened by people down in the pecking order (by minorities for instance). Judicial review serves as a tool to insulate certain policy preferences from majoritarian decision-making. The elites thus co-opt the rhetoric of social justice and judicial review is in fact led by those antithetical to democracy. This explanation of the origins of judicial review then forms the basis of his argument that judicial review is inherently conservative and anti-democratic. Thus, judicial review is not the liberalizing tool it is thought to be but merely a tool for the hegemonic preservation of threatened elites.
Hirschl’s argument is important and illuminating because it helps break the romanticized notions that we have about judicial review and its democratic ideals. However, it is in my opinion overly pessimistic and too generalist to accurately describe the emergence of judicial review in all countries. Moreover, the emphasis on interest-based decision-making completely discounts any ideational or cultural factors that could have influenced the adoption of judicial review.
This essay has been divided into three parts to present my critique. Firstly, I analyse why, given the unpredictability of judicial review, it is probably not the best method to preserve hegemony while operating within the rational-choice theorists’ assumptions. If true, then rational-choice alone cannot adequately explain the emergence of judicial review. Secondly, using Ackerman, I argue that different constitutional pathways may provide different reasons for the emergence of judicial review. I have analysed a few case studies to prove this point. Lastly, I argue that insulation of certain policies from majoritarianism empowers minorities as opposed to serving only as a tool for elite hegemony-preservation.
The (Un)Predictability of Judicial Review
Hirschl’s argument is that threatened elites use judicial review to preserve their hegemony. While he acknowledges that it imposes certain costs on the elites themselves, the benefits nevertheless outweigh these costs.
To my mind, judicial review eschews such cost-benefit analysis. If we are to assume that all actors are self-interested then the newly formed constitutional court has every incentive to increase its power and political standing (as both Hirschl and Ginsburg agree). Further, even if they are not acting in their self-interest, constitutional courts with judicial review have often been unpredictable. In particular, the United States Supreme Court decisions in the Lochner-era, which preceded the adoption of judicial review in most countries demonstrated this unpredictability. There are several examples across the world of constitutional courts asserting a stronger role than the constitution drafters had envisaged.
Alec Stone Sweet gives the example of the French Constitutional Court which incorporated a bill of rights into the Constitution even though the drafters had explicitly not wanted to do so. Yvonee Tew demonstrates that over time the Malaysian Federal Court managed to invalidate certain constitutional amendments which had restricted judicial powers. Similarly, the Colombian Constitutional Court has emerged as a lawmaking body, exercising strong powers of judicial review (Nagle 2005). For instance, despite popular support, it thwarted a proposal for a referendum from President Uribe which would have allowed him to run for a third term.
Thus, once judicial review is incorporated, it cannot be easily controlled or predicted. Thus, Hirschl’s thesis fails to explain why elites would choose judicial review as opposed to more predictable and controllable preservation strategies, if they are acting in their self-interests. The widespread usage of judicial review by elites across jurisdictions suggests that there is an ideational or cultural element to it, as opposed to solely interest-based reasoning. This ideational element gives judicial review certain legitimacy, that other strategies do not possess. Further, the political actors that have threatened the elites would agree to the concession of judicial review only if they saw a benefit in it for themselves. If judicial review were necessarily hegemony preserving, then within the rational choice framework, other political actors would not have agreed to it (Unless of course Hirschl argues that for close to a century, across countries, apart from rational choice theorists’, no one realized that judicial review is hegemony-preserving).
Thus, even operating within the rational choice framework it is evident that (i) there are ideational or cultural factors that have influenced the adoption of judicial review and (ii) that judicial review does also serve the interests of other political actors such as the minorities that are threatening the elites.
Pathways to Constitutionalism
The debate on the spread of judicial review is part of a larger debate on the rise of constitutionalism. Several scholars have used homogenizing, one size fits all approaches to explain the rise of constitutionalism across the globe. Bruce Ackerman however argues that such homogenous explanations do not adequately account for why different constitutions face different challenges. According to Ackerman there are three different pathways through which constitutions are created. Firstly, the revolutionary pathway, where revolutionaries sustain a movement against the old order. Once they overthrow the old guard, the revolutionary leaders or organisations commit to a new constitution embodying the principles of the revolution and to prevent a relapse into the abuses of the past. Secondly, the establishmentarian pathway, where there is a popular movement for fundamental change. In response, the insider establishment provides certain concessions, which are acceptable to moderates on the outside. Lastly, the elite construction pathway, where the old establishment begins to lose power, but the general population stays passively on the sidelines. The power vacuum is occupied by previously excluded elites who then create a new constitutional order. Ackerman argues that the reasons for constitutionalism and consequently the challenges different constitutions face depend on the pathway followed.
Hirschl proposes a one size fits all approach to explain the prevalence of judicial review. However, applying Ackerman’s typology of pathways to the question of judicial review shows that such a one-size fits all approach may not be entirely accurate.
Hirschl makes their argument using the examples of New Zealand, Canada, Israel and South
Africa. The changes in New Zealand and Canada are of the establishmentarian ideal type. In this pathway, insiders do concede ground to moderate outsiders to prevent whole-scale revolution. Judicial review in such situations emerges as a concession for the elites to retain their power. Thus, Hirschl’s thesis is probably true for constitutions following the establishmentarian pathway. Let us consider the revolutionary and elite construction pathways.
The revolutionary pathway, as mentioned above, involves outsiders rallying against the elite. It is led by charismatic organisations and leaders. In India for instance, the freedom movement came to be associated with certain leaders like Nehru and political parties like the Indian National Congress. In Africa, similarly, the freedom movement involved the ascendancy of the African National Congress. Given the high degree of popular support that these charismatic organisations/leaders enjoy, within the rational-choice framework, there would be no reason for them to introduce judicial review and place fetters on their powers.
Nevertheless, we see that across several countries, new constitutions do have a bill of rights with judicial review. For instance, South Africa, contrary to Hirschl’s argument, is a bad example to demonstrate his thesis. Hirschl argues that judicial review in the 1996 Constitution was initiated and demanded for by the apartheid government to preserve their privileges (particularly their propertied rights). Per contra, the African National Congress which had considerable majority both in the constitution-drafting process and in the Government actively supported the incorporation of judicial review. Further, they ensured that the new Constitutional Court entailed a break from the previous regime. Moreover, their acceptance of the right to property cannot be seen from the narrow viewpoint of protecting the neoliberal order. As has been detailed by scholars, the ANC saw the right to property as serving multiple social functions too.
The elite construction pathway involves a power vacuum where the existing elites are replaced by a new set of ascending elites. Ackerman gives the example of Spain. In Spain, post Franco’s death, several different parties came together to draft a new constitutional order. Judicial review was strongly advocated for by the ascendant leftist opposition whereas the threatened outgoing elites were in fact opposed to it. Further, even the ascendant parties did not try and entrench their policy preferences in the bill of rights but left considerable room for interpretation. The many decades of dictatorship in Spain had left both civil and political society wary of executive excess. There was a need to build faith in a constitutional order and it was in this context that the dominant opposition introduced judicial review.
Finally, let us consider Israel. While Hirschl may be right to suggest that the 1992 Basic Law was an attempt by the secular-bourgeoise to protect themselves, it did not introduce judicial review. Judicial review in Israel was introduced by the Supreme Court asserting its own power. As Woods argues, it was a product of the judiciary’s ideological commitment to a particular legal-order and not the result of threatened elites trying to preserve their hegemony.
Judicial Review as Empowering Minorities
Hirschl’s argument rests on the premise that threatened elites want to preserve their preferences and use judicial review to insulate such preferences from majoritarianism. However, on the contrary, judicial review helps minorities to gain rights/concessions which they otherwise would not have been able to secure through majoritarian decision-making. These are underrepresented and socially excluded groups seeking to gain benefits, not elites. Charles Epps shows how such groups strategically use courts to initiate rights revolutions. For instance, in the US, the civil liberty era of the Warren Court can be traced to the advocacy of groups such as ACLU. In India, strategic advocacy in the right to food cases helped gain significant concessions from the State which may have otherwise not been possible. Even the striking down of Section 377 of the Indian Penal Code, 1860 may not have been possible if left to majoritarian decision-making.
Thus, the existence of judicial review instead of being a response to the threat to elites, may itself be a tool to threaten and gain concessions from elites, that otherwise would not have been possible in the electoral market.
Hirsch’s hegemonic-preservation thesis is a seminal contribution to the literature on judicial review. It questions the deeply romanticized view that scholars have often taken to explain the prevalence of judicial review. However, it is homogenizing in its approach and ignores other factors at play. For instance, even the case studies of South Africa and Israel that Hirschl uses do not fit within his hegemonic-preservation thesis. The prevalence of judicial review in these, and in other several other jurisdictions, is explained by ideational factors. Further, I have argued that the reasons for adopting judicial review may also depend on the pathways to constitutionalism. Thus, Hrischl’s framework, while useful, needs to be further refined to account for different constitutional experiences across jurisdictions.
* Vrishank Singhania is a final year student at the National Law School of India University, Bangalore. He is the Editor-in-Chief of the National Law School of India Review.
 Alec Stone Sweet, ‘Constitutional Courts’ in Michel Rosenfeld & András Sajó (ed.), The Oxford Handbook of Comparative Constitutional Law (2012).  Martin Shapiro, ‘The Success of Judicial Review’ in S. Kenny et al. (eds.), Constitutional Dialogues in Comparative Perspective (1999); Ran Hirschl, ‘The Political Origins of the New Constitutionalism’, 11 (1) Indiana Journal of Global Legal Studies, 71 (2004) 78-79.  Tom Ginsburg, Judicial Review in New Democracies: Constitutional Courts in Asian Cases (2003).  Alec Stone Sweet, supra note 1.  Yvonne Tew, Constitutional Statecraft in Asian Courts (2020).  Theunis Roux, The Polito-Legal Dynamics of Judicial Review (2018) 25.  Lisa Hilbink, ‘The Constituted Nature of Constituents’ Interests’ 62 Political Research Quarterly (2009) 781.  Charles Epps, The Rights Revolution: Lawyers, Activists, and Supreme Courts in Comparative Perspective (1998).  Lauren Birchfield & Jessica Corsi, ‘Between Starvation and Globalization: Realizing the Right to Food in India’ 31 Michigan Journal of International Law.