Politicizing Law, Judicializing Politics: A Realist Approach to Comparative Constitutionalism

The past few decades have seen a sweeping convergence to constitutional supremacy and a corresponding increase in the political importance of constitutional courts worldwide. This trend is widely perceived as a reflection of progressive social or political change, or simply as the result of societies' or politicians' uncritical celebration of rights. Against this canonical backdrop, a realist approach has emerged that draws on comparative research to provide a richer explanatory account of the causal relationships between constitutional law and various political, social, or economic phenomena. This increasingly prevalent approach goes beyond portrayals of constitutions as aspirational documents or solutions to systemic problems of coordination and commitment. It identifies concrete supply-side factors that are conducive to the establishment, maintenance, and demise of constitutional orders, most notably the changing interests and incentives of pertinent political, judicial, and economic stakeholders. Drawing on various examples of constitutionalization, Professor Ran Hirschl from the University of Toronto will elucidate the analytical foundations of this emerging approach and its main theoretical insights. The lecture will explore the strengths and weaknesses of studying comparatively the socio-political foundations of constitutions and constitutional institutions worldwide.