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53 results

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  • 11 - The Constitutional Court
  • from Part III - Specialised Courts as Judicial Reform Strategy
  • Edited by Melissa Crouch, University of New South Wales, Sydney
  • Book: The Politics of Court Reform
  • Published online: 30 August 2019
  • Print publication: 19 September 2019, pp 245-264
  • View extract

    Summary

    This chapter draws on Daniel S. Lev’s work on Indonesian law and legal culture to assess the Constitutional Court’s role in the reformasi. One of the central themes running though Lev’s work, the chapter notes, was the idea that law’s claim to authority as an autonomous body of norms is invariably a function of politics – of the middle class’s need to promote this quintessentially liberal idea of law to further its own interests. On the other hand, Lev also recognised that societies generally prosper where there is public confidence in precisely this conception of law. This tension in Lev’s work may be resolved, the chapter argues, if law’s autonomy from politics is seen as being, not an empirically provable fact, but a constitutional-cultural ideology that may take hold under certain conditions. The third section uses this modified Levian conceptual framework to examine the Indonesian Constitutional Court’s role in promoting the rule of law after the constitutional reforms of 1999–2002. While the Court has made admirable strides, the chapter argues, its vacillation between a legalist and an instrumentalist conception of law has inhibited the consolidation of a stable societal understanding of its legitimate role in tempering the exercise of political power. The chapter conclusions on this score, despite differences of conceptualisation, demonstrate how vitally important Lev’s work still is to the fate of the Indonesian ‘law-state’.

The Politico-Legal Dynamics of Judicial Review
  • The Politico-Legal Dynamics of Judicial Review
  • A Comparative Analysis
  • Theunis Roux
  • Published online: 31 August 2018
  • Print publication: 06 September 2018
  • View description
    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.

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