French exploitation, occasional repression, and an international climate favoring self-determination drove nationalist Algerians to start (again) an uprising in late 1954. France's choice of reaction to this violent wave of Algerian nationalism was almost preordained, The two major policy alternatives to war – rapid and egalitarian integration, or disengagement – were politically and psychologically unsustainable. On the one hand, hardly anybody in France would have agreed to a massive transfer of resources and an honest power-sharing program that equitable integration would have required. Ethnic, religious, cultural, and racial divisions between French and Algerians, and a French preoccupation with the standard of living in France, combined to preclude any such attempt. On the other hand, no government could seriously contemplate rapid disengagement. The most powerful politicians in France were deeply committed to French Algeria. The Algerian lobby and the army were sure to evoke the bitter memories of World War II and Indochina, raise a challenge no government could meet, and veto what they perceived as “abandonment.” Besides, with few exceptions, repression proved to have been effective throughout the entire colonial history of France, including in Algeria. Thus, the only political option open to the French government in late 1954 was to keep Algeria by means of force.

The Israeli forces that opposed the Lebanon war succeeded in halting Sharon and bringing the war to a grinding halt. Both were no small achievements, particularly considering that they were gained in the marketplace of ideas and as they involved a society that was conditioned to support almost any tough security stand. This, however, does not indicate that the Israeli society as a whole, or even a majority in Israel, opposed the war. Rather, all indicators suggest that the anti-war coalition remained a minority with limited social and political reach. The anti-war coalition stripped the government of the mantle that an active security policy had provided, and shook the overwhelming popular support it had initially enjoyed. But the former did not turn around the opinions of most Israelis, concerning the war, its conduct, or the leadership that brought the failed war upon them. The Kahan Commission of Inquiry more or less captured this social reality when its members wrote that they did not “deceive [themselves] that the result of this inquiry will convince or satisfy those who have prejudices or selective consciences, [for whom] this inquiry was not intended …” Indeed, during the first year of the war, which was the most intense period in terms of the war and state-society strife, the majority of Israelis did not oppose the government war policy, nor, as Table 14.1 suggests, did their confidence in Begin, the government, and even Sharon change all that radically.

The most obvious characteristic of Israel's instrumental dependence, in the early 1980s, was its wide scope and depth. Structural features over which Israel had little control – most notably, the magnitude of the security threats Israel faced and its geostrategic vulnerability and demographic inferiority vis-à-vis its Arab enemies – simply called for a comprehensive mobilization of its human and economic resources. Thus, as a result of external threats, the boundaries between Israeli society and the state were blurred. Israeli Jewish society, one could add, was tightly meshed with its military. Hence, Israel's comprehensive conscription policy, large defense budget, and high tax rate. Indeed, the majority of Israeli Jewish males served three years of compulsory military service, conscripts who became officers served additional periods, and both groups continued to serve on active reserve service for several weeks each year for up to four decades following their mandatory conscription service. Similarly, Israel's defense expenditures were always high, and in 1978–1980, for example, they reached 17 percent of GNP (excluding U.S. grants). In 1981, a year before the Lebanon war, the tax burden on Israelis – that is, tax revenues as a percentage of the GNP – amounted to 46 percent.

Considering the skills and commitment of Israeli society at large and the comprehensive extraction and conscription system, it is not much of a surprise that the Israeli state has at its disposal a particularly powerful military.

The model presented here will clarify two puzzling aspects of the Salvadoran rural insurgency. First, I show how the reasons for action central to my interpretation account for insurgent collective action, even when the primary material benefits sought by these organizations (access to land) were not contingent on participation. Second, I also want to illuminate how radical forms of campesino collective action, which owed their emergence to extraordinary circumstances – the terror of the late '70s and early '80s and the military stalemate of the mid-'80s – could have persisted after those circumstances had passed.

The formal model presented here draws on the rational actor approach in that individuals decide whether to participate or not based on anticipated costs and benefits, which in this case depend on how many others participate. I draw on Thomas Schelling's (1978) representation of collective action as an n-person coordination game among individuals facing a binary choice to participate or not. It differs from most such models, however, in that the likely outcomes of participation are not evaluated in terms of conventional self-regarding and outcome-oriented preferences. Rather, some individuals value defiance, an intrinsic motivation, and/or pleasure in agency, one contingent on both participating oneself and the action's success.

Moreover, Schelling's tipping model leaves unresolved how a group of individuals move from general nonparticipation to general participation. To model that process, I draw on the work of David Lewis (1969) and of Peyton Young (1996, 1998) on conventions.

The pattern of the outcomes of conflict between rivals of great military inequality remained unchanged from antiquity until well into the twentieth century. Control over superior means of destruction almost always promised victory, continuous domination, or successful pacification. Weak protagonists – and insurgent populations – did not always accept this state of affairs, nor did they always assess correctly the balance of power or the might and determination of their powerful conquerors or rivals. Nevertheless, when the military superiority of oppressors was unquestionable, so were the results.

In this chapter, three issues are discussed. First, I note why, under conditions of acute military inferiority, weak protagonists chose an insurgency strategy in order to fight domination. Second, I explore how military superiority was traditionally employed in pacification, and I define strategic prototypes of counter-insurgency. Third, I expose the key variable that guaranteed that military superiority would be translated into effective domination or pacification.

Fighting Small Wars: Insurgents and Oppressors

Much of what is known about military aspects of armed struggle against foreign domination comes from the study of guerrilla warfare. Communities and nations choose to fight a guerrilla war against oppressors because it proves to be “frugal” and because it makes their own forces less vulnerable. Guerrilla warfare turns out to be the only form of violent resistance that has any chance of surviving repeated encounters with a militarily superior oppressor. Its advantages can perhaps be best understood by considering the burden associated with conventional warfare of pitched battles.

The French opposition to the Algerian war was not focused on a single issue, nor was it consistent in content and emphasis throughout the war. Rather, several ideological camps opposed the war, or some particular aspects of the latter, each for its own reasons. The precise disagreements among the factions within what one can define as the anti-war movement were identified, traced, and classified by a few scholars, most notably Raul Girardet and Pierre Vidal-Naquet. For purposes of convenience, and in order to simplify things for readers who do not find it rewarding to delve into the intricacies of political and ideological cleavages, I have altered somewhat the existing classification of the French literature. Here I refer to the terms Rational-Utilitarian, Marxist, and Moralist when I describe the main camps of the anti-war movement.

The Utilitarian Debate About the Necessity of the War

The debate over the French war effort in Algeria never really focused on the worthiness of the war in terms of battle casualties. It is rather problematic to explain the non-occurrence of this issue, as it is the case with other non-events. One can only speculate and suggest that the relative civil indifference to casualties was the result of the fact that most of the French draftees did not run a great risk when they served in Algeria, for reasons that were discussed in Chapter 6. Still, the Algerian war did not escape a utilitarian debate, though the latter centered around economic considerations.

In June 1982, Israel invaded Lebanon on a massive scale. The three most important reasons driving Israel's decision involved its basic conventions of national security, the perception that future confrontation with the PLO in Lebanon was inevitable, and the personal composition of the pinnacle of the defense establishment during the second Likud government. On the one hand, the political alternative to using military power – negotiations with the PLO over the resolution of the Israeli-Palestinian conflict – was rejected a priori by both the right-wing government of Israel, its main opposition party, Labor, and most of the leaders of the various PLO factions. On the other hand, the two main strategic alternatives to a deep invasion – continuation of the ceasefire in the theater of operations and the maintenance policy that combined measured retaliations and limited operations – were rejected as insufficient by the central leadership of the Israeli defense establishment. This last point was critical. While Israeli leaders up until 1981 preferred to exercise restraint and treat the PLO threat from Lebanon as a maintenance problem, once Sharon became Defense Minister, the probability that Israel would chose a ‘once and for all’ strategy against the PLO presence in Lebanon dramatically increased. In that respect, the June 1982 invasion was predetermined, though its exact date was left for the “next” random yet certain Middle East spark – in this case, the May 31, 1982, attempt to assassinate Shlomo Argov, Israel's ambassador to the United Kingdom.

The major dilemma French governments faced when they were presented with the Algerian upheaval was not whether to fight, but rather how to fight – whether to take the political risk of involving French society at large in the war or remain cautious and insulate society as much as possible from the war. Certain attributes of Algeria made this dilemma more wrenching. Most notably, some of the reasons that pushed French governments toward the resolution of the conflict by force – a long mutual history with Algeria, memories of its significance for Free France, its proximity, and the magnitude and power of the vociferous Algerian lobby – also made harder the isolation of the events in Algeria from the French collective consciousness. The massive presence of Algerian labor in France also promised that the Algerian problem would create echoes at home.

Thus, French politicians maintained a duality in their statements, and a gap between the latter and their actions, in order to accommodate the inherent saliency of Algeria with the desire to avoid the political uncertainty involved in the nationalization of the war. Indeed, French leaders initially boasted with high rhetoric, but avoided backing their words with a real commitment of society to the war. Politicians vowed to preserve French Algeria, but the events in Algeria were depicted to the public as comprising a set of police operations against bands of outlaws.

It is impossible to resist the temptation of referring to the Israeli-Palestinian conflict, if only because its special characteristics provide a challenging opportunity for a review of the utility of this book's thesis and concepts. Yet such an enterprise is also intimidating. Venturing analysis and qualified predictions concerning an evolving conflict of this sort is akin to skydiving on a stormy night, when even the best of parachutes may fail. Indeed, while I act on temptation as I submit the following preliminary analysis, I do so with trepidation.

In order to understand the implication of my thesis for understanding recent developments in the Israeli-Palestinian conflict, it is essential to present first its contours and special features. The most fundamental point to note is that the conflict involves a powerful democracy, an occupied community, and sharp asymmetrical relations. Considering these, it is not surprising that whenever the conflict turns violent, it assumes characteristics of a “democratic small war.” The Palestinians resort to insurgency and terror, and Israel responds with counterinsurgency. Indeed, the cycle of violence that started in September 2000 reminds one of events that occurred in other small wars, and particularly during the French war in Algeria.

At the same time, the Israeli-Palestinian conflict is also marked by significant idiosyncrasies. First, while the actual violence is bilateral, it cannot be totally separated from the much larger Israeli-Arab conflict, which is of a different nature than small wars.

What determines the character of judicial review as it operates in new democracies? One important factor is the institutional design of the court and access to it, which is the subject of this chapter. The institutional design of the judicial review mechanism is generally, though not always, a product of the written constitution itself. As such, it reflects, in large part, the choices of the constitutional designers. The political bargain struck at the outset of the democratic regime and embodied in the constitutional text will frequently include some provisions for judicial review. Some important features of the judicial review body, such as its jurisdiction, composition, and selection method of its members, may be detailed in the constitutional text.

Text is not the only source of judicial power, however. This qualification is necessary both because some systems of judicial review are not derived from constitutional text (the systems in Israel and the United States are two well-known examples), but also because nonconstitutional norms may be important in shaping the environment of judicial review. Frequently, matters such as terms and procedures are listed in ordinary organic statutes of the judicial review body. Furthermore, judicial decisions themselves will fill in many of the gaps in these frameworks. Particularly important are decisions related to jurisdiction and standing that play a major role in a court's self-articulation of its political role.

This chapter is primarily concerned with the institutional choices embodied in written constitutions and their importance in setting the stage for judicial review.

The remainder of this book will apply the concepts developed thus far to real-world cases of the establishment of judicial review. This chapter begins the inquiry by taking a wide perspective, briefly considering the history of a few well-known courts and their strategic interactions with other branches of government. The three subsequent chapters look deeply at three particular cases of the establishment and expansion of judicial review in Asia.

Judicial review has spread around the globe in three waves. The first wave was that of the United States and the constitutions of its various constituent states. Although judicial review was adopted in a couple of European polities thereafter, particularly after Kelsen's reconceptualization of constitutional review in the early twentieth century, it was not until a second wave of constitution writing after World War II that the practice spread broadly. The third wave of judicial review has been the recent adoption of judicial review in the postcommunist world and other new democracies. In discussing cases from these three waves, we will examine successful cases as well as an instance where judicial review failed to contribute to democratic development and consolidation, namely postcommunist Russia. For each, we will consider the extent of political diffusion as the environmental condition supporting judicial review.

My argument is that, other things being equal, the insurance theory of design and the diffusion theory of judicial power will explain the behavior of courts and politicians.

Chapter 2 focused on the creation of constitutional courts and argued that the design of judicial review is to a large degree a function of politicians' insurance needs. However, courts that are created to do one thing can gradually adopt new roles for themselves. Courts are not passive players in the judicial review “game.” Although politicians design judicial review with their own interests in mind as a way of reducing future political uncertainty, there is substantial evidence that courts behave strategically once they are established, both with respect to individual cases and with respect to their own position in the constitutional system.

Judicial activism leads to a potential problem with regard to the insurance theory. If courts are able to assume roles that differ from those anticipated by constitutional designers, would not constitutional designers discount the value of the insurance provided by constitutional courts? In other words, would not prospectively weak constitutional designers want to specify in some detail the norms to be used by courts in constraining political authorities? From the point of view of prospective minorities, however, this is not a problem as long as there is some positive probability that the court will use its powers to constrain political majorities. While the designers will try to channel judicial decision making into certain areas, for example, by specifying jurisdiction, enumerating rights to be protected, and listing sources of law to be considered – the intertemporal nature of the insurance contract means that they cannot do so with perfect confidence.