INTRODUCTION

The conflict between the Kurdish movement and the state remains the deepest faultline in Turkish politics. Obsessed with the preservation of national unity and homogeneity, the Turkish state has had little tolerance for Kurdish demands for greater legal recognition and a measure of autonomy. In a strategic move in its application for membership to what was then the European Community, Turkey decided in 1987 to give its citizens the right to petition the European Court of Human Rights (ECtHR/ the Court/Strasbourg). It was subsequently faced with the Kurds' effective use of this mechanism to raise international awareness to their plight. Since the early 1990s, the Kurdish question has been the greatest source of problems for Turkey before the ECtHR, and the cases taken to the Court by Turkey's Kurds provide a repository of information on the nature of the conflict.

Kurdish uprisings against the state's forced assimilation policies have led to repeated and often violent confrontations since the early years of the Republic. The most recent uprising has lasted the longest. The Kurdistan Workers' Party (PKK), founded in the late 1970s and strengthened in reaction to the oppression of the military regime of 1980–3, launched its first serious offensive against the Turkish army in 1984, starting an endless cycle of mutual violence. A state of emergency regime was declared in 1987, in eastern and south-eastern Turkey, that is, the Kurdish-populated territory where the armed conflict was taking place.

The United Kingdom can generally be seen as a dependable defender of human rights and civil liberties. A particularly vibrant legal activist community is dedicated to protecting individual rights, and efforts to protect those rights are routinely made by both state and non-state actors. There are instances, though, in which the UK is found to violate the European Convention on Human Rights (ECHR) and is faced with the decision of how best to implement the corresponding judgments of the European Court of Human Rights (hereafter ECtHR or the Court). The implementation of the ECtHR's judgments can be a quick and easy process or it can be long and laborious, depending on the circumstances surrounding the individual case and the general and individual measures required to compensate the violation. Data from the UK and the other eight countries analysed in the present volume provide a glimpse into the rates of implementation and the time taken by respective governments to do so.

After regaining its full sovereignty through the Austrian State Treaty in 1955, Austria joined the Council of Europe (CoE) as its fifteenth member state on 16 April 1956. Accession to the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR or the Convention) was politically undisputed and perceived as a mere act of European solidarity. Both the government and the judiciary were of the opinion that fundamental rights were already sufficiently guaranteed within the domestic legal order. Therefore, the ratification of the Convention was not considered to have any substantial consequences. It came as a surprise when soon afterwards, a relatively large number of applications were lodged against Austria before the European Court of Human Rights (ECtHR or the Court).

Austria was the first state to fully incorporate the ECHR into its constitutional legal order. This created a high level of awareness of the legal and practical implications of the Convention within Austrian society, as well as the influence exerted by the Strasbourg Court. From 1985 to 2007 about ninety decisions and judgments of the ECtHR were issued against Austria that pertained to the core civil and political rights of members of marginalised groups, including foreigners, ethnic or religious minorities and homosexuals. These comprised rulings on Articles 8 to 11 and 14 of the ECHR as well as judgments on the rights of the abovementioned groups under the other provisions of the Convention.

One could think that the move from authoritarian rule to parliamentary democracy would be generally favorable to legality. There are certainly many cases of authoritarian rulers who have seen courts and legal processes as threats to their powers and insisted on subservient judges, willing to permit lawless actions as required. However, not every authoritarian regime has been hostile to legality and independent legal institutions. Indeed, Steven Holmes has argued that law and independent judges are often in the interest of authoritarian as well as democratic rulers because they permit the upward flow of information valuable to maintaining stable rule.

Whether that is so or not, it seems clear that the transition away from an authoritarian regime, insofar as it entails a break in the old legal order, can undermine the establishment of genuinely legal institutions. Many of the laws might be either new or, if old, of questionable pedigree. There may have been special deals or pacts – necessary to disband the old authoritarian system – aimed at protecting certain traditional elites from legal rules that apply to others. Moreover, judges might well have continued or at least been trained under the previous regime, so they may not have earned or deserved a high level of trust. One could hope, however, that as democratic or liberal institutions become more established, these conflicts would fade away. Perhaps; but the chapters in this volume provide reason to think that there remains a significant tension between law and democratic rule and judges are sometimes placed in a position where they must negotiate these difficult issues.

During the mid-1990's, Israel experienced a legal and political transformation known as “the constitutional revolution” (Gavison 1997: 27; Hirschl 1997: 136; Salzberger & Voigt 2002: 490; Edrey 2005: 78; Sapir 2008: 4). In essence, this “revolution” entailed the empowerment of the judiciary to exercise constitutional judicial review over primary legislation when such legislation does not comply with the requirements set forth in Israel's Basic Laws. This revolution, although on the basis of two Basic Laws enacted by the Knesset in 1992 (and amended in 1994), was nonetheless Court driven in the sense that the Justices of the Supreme Court in the Bank Hamizrachi United v. Migdal Communal Village (1995) significantly expanded the rather modest mandate given in these two Basic Laws (Gavison 1997: 95). The Supreme Court elevated the status of all Basic Laws to the constitutional sphere and denied the power of the Knesset to exempt a statute from judicial review unless it explicitly amends the Basic Laws themselves.

In this chapter, I will provide the historical background in a nutshell and then briefly sketch the legal contours of the revolution (i.e., what happened), analyze the judicial moves that brought this change about (i.e., how it happened), and hypothesize on the forces that brought this change about (i.e., why it happened the way it happened). I will then examine in brief some of the possible ramifications of the revolution for the political and legal landscape in Israel. Throughout the chapter, I will point to some general lessons that may be gleaned from the Israeli story and highlight the importance of a number of specific dynamics including the relationship between the judiciary and the legal academy; the relative prestige bestowed by the media on justices and the Supreme Court compared to the treatment of the legislature and politicians; the fragmentation of the political system; particular aspects of Israel's political economy; and of course, the attitudes and leadership of the political and legal leaders. All of these are variables worthy of examination in any country undergoing a constitutional transformation that is not a consequence of an acute crisis (such as the foundation of a state or the conclusion of a serious civil struggle).

The Supreme Court of India today is arguably one of the most powerful constitutional courts in the world. The Court has taken on an active and central role in the governance of the Indian polity through its activity in public interest litigation cases, and in some cases, has virtually taken over functions that were once the domain of Parliament and the Executive. Within the past two decades, the Indian Court wrested control over judicial appointments from the Executive, and assumed a leading role in policymaking in the areas of affirmative action, environmental policy, education, and development. The Court has generally exerted a great deal of authority in securing compliance with decisions in which it has asserted expanded power. However, during the first two decades after India's independence, the Court played a relatively limited role in governance. How can one explain the expansion of the Court's role in Indian politics today?

This chapter examines a critical “moment” in the expansion of judicial power in India: the development of the Public Interest Litigation (PIL) regime in the post–Emergency Indian Court. Following the end of Indira Gandhi's Emergency regime (1975–1977) and the election of the Janata party government in 1977, the Supreme Court of India expanded popular access to the Court and broadened its own power and jurisdiction through PIL cases involving repression of human rights and malgovernance. Through PIL, the Indian Court asserted itself as a “champion” of the rule of law and responsible governance in the 1980s, although the Court avoided direct challenges to the policies and actions of the Executive and Parliament in this period. As India transitioned from an era of one-party rule under the Congress party to an era of multiparty politics and coalition governments in the early 1990s, the Court became more assertive in challenging the central government, particularly in key governance domains including judicial appointments, corruption and accountability, and environmental policy.

Changes in Judicial Roles: The Elusiveness of Simple Explanatory Models

In his chapter in this volume, Martin Shapiro observes that “‘The mighty problem’ of constitutional judicial review” raises a major empirical challenge: “when, where, and why do the powers that be…allow a handful of judges without purse or sword to get away with making major policy decisions?” (Ch. 16 in this volume, p. 380). In recent decades, the salience of these questions has increased. More political regimes have established constitutional courts. More courts have overruled legislation and executive orders. Thus, more judges have played important roles in politics, policy, and governance. However, in some countries, courts have been cautious about engaging in judicial review or, when they have done so, have been politically attacked and driven to retreat. In other regimes, political authorities have preempted or limited the exercise of judicial review, preventing an expansion of judicial roles in governance.

Faced with this variation, scholars interested in the political roots of judicial power have focused on three related aspects of Shapiro's when, where, and why questions. Under what conditions are courts granted (or do they themselves adopt) judicial review powers and significant remedial authority? Under what conditions do courts exercise those powers assertively? Under what conditions can courts exercise those powers both assertively and successfully (i.e., achieving compliance with their rulings)?

Scenario One: In a country with only a decade-old democracy, the country's newly elected president is the ultimate political outsider – an activist lawyer, relatively young, whose party does not hold a majority in the parliament. His opponents launch fierce political attacks, and then impeach him for seemingly trivial offenses. The country's widely respected Constitutional Court is called on to decide whether to uphold the impeachment and decides that, although the president violated the law, he can retain office.

Scenario Two: In a hotly contested presidential campaign he looks certain to lose, the incumbent (another former activist lawyer) is shot the day before the election. He wins by a razor-thin margin, and the election is contested. Meanwhile, the executive and legislative branches set up competing investigative committees to determine the source of the shooting. The election case is sent to the courts to resolve, along with constitutional disputes about the investigative committees. The court holds that the election is valid, the investigation constitutional, and the leader takes power.

The passivevoice is preferred by many students of comparative judicial politics during the prologue to their tales of judicial power. Constitutions are framed and ratified. Legal and constitutional rules and standards are announced. The precise meaning of these rules and standards is debated. Courts are established. Judges are appointed. Jurisdiction is conferred. Legal and constitutional disputes are placed on the agenda of these courts. Legal and constitutional arguments are made. Agency is absent from both sentences and analysis.

Constitutional politics shifts sharply to the active voice between oral argument and disposition. Judges make decisions. Many elected officials oppose those judicial rulings. Executives refuse to implement court orders. Legislators propose contrary constitutional amendments. Political activists demand that elected officials replace the offending judges by legal or extralegal means. Supporters who mobilize to defend the judicial decision wax eloquent on the virtues of an independent judiciary.

In 1979, Mauro Cappelletti entitled a pioneering comparative study “The Mighty Problem” of constitutional judicial review. Since then, review has become even mightier and even more problematic in a number of ways, as noted in the Introduction to this volume and its subsequent chapters. Initially, the problem was largely seen as a normative one about the compatibility between majoritarian democracy and a judicial veto power over legislation. Put somewhat differently, a strong measure of judicial independence might be a prerequisite to judicial review as an instrument for limiting government and protecting rights. Such review necessarily involved some judicial lawmaking. In a democracy, lawmakers should be accountable to the electorate. How could judicial independence and accountability for lawmaking be accommodated to one another? At a more rough-and-ready empirical level, when, where, and why did the powers that be – whoever they might be – allow a handful of judges without purse or sword to get away with making major policy decisions? For as this volume insists, judicial review courts are often consequential.

Let us suppose that we wished to construct a causal model or theory for relatively long-term, successful judicial review. By success, I mean a reviewing court with some decisions entailing substantial changes in public policy that are obeyed by other policy makers and implementers. Although this volume seems to yearn for a developmental model, suppose instead we attempted a more static model to state in a parsimonious way the necessary and/or sufficient conditions under which relatively long-term, successful judicial review would, or at least could, flourish.

On October 6, 2009, the Italian Constitutional Court quashed the so-called lodo Alfano, a statute hastily passed by the right-wing parliamentary majority in July 2008, just after winning the parliamentary elections. The statute had the effect of freezing all criminal proceedings against the highest state officials: the president of the Republic, the presidents of the two chambers of Parliament, and the prime minister. In fact, the actual goal of the statute was to suspend all the criminal charges brought against Berlusconi. The reaction of Berlusconi and his allies to the decision has been to denounce the court's leftist propensities and call for radical reforms of the judicial system. Without doubt, the court's decision was by no means favourable to Berlusconi, as it is likely that in the near future he will have to confront several criminal proceedings. However, in the recent past it was a criminal investigation that opened the way for the return to power of the Italian tycoon.

In January 2008, the justice minister of the center-left Prodi government, Clemente Mastella – together with his wife and twenty-three members of his small party – was put under investigation. The charges were several, ranging from extortion against the chief executive of the Campania region to various administrative illegalities. As a consequence, the minister resigned, denouncing the investigation as a “persecution.” After some days, the weak twelve-party government led by Romano Prodi collapsed, opening the way to new elections. Thus, in April, the center-right coalition – led by Silvio Berlusconi – which had ruled 2001–2006, was returned to power – with a stronger majority. Although the Prodi government was far from stable, the judicial intervention was the trigger of the crisis.

To say that a constitutional court has played a significant role in governance of a nation implies that the court's decisions are consequential – that they make a difference, have an independent effect on politics, public policy, and power relationships, or on social or economic life, the treatment of minorities, criminal suspects, political or religious dissidents. This essay, accordingly, discusses the roles played by the U.S. Supreme Court in the twentieth century, asking to what extent and in what ways the Court was a consequential political actor.

Lawyers and legal scholars take it for granted that the U.S. Supreme Court, which has exercised the power of constitutional judicial review for more than 200 years, has been a politically consequential court. To many political scientists, however, the Court's actual influence is an unsettled empirical and theoretical question. Scholars often referred to as regime theorists argue that constitutional courts only rarely, if ever, have a powerful independent effect on government and society (Dahl, 1957; Rosenberg, 1991; Peretti, 1999; Pickerell & Clayton, 2004; Whittington, 2008). Regime theorists see high courts not primarily as politically powerful principals but as agents whose decisions in politically significant cases generally reflect the preferences of the political leaders who appointed them. Even if judges are personally inclined to make bold, politically unpopular rulings, it is argued, prudence usually impels them to act strategically, avoiding decisions that important political leaders are likely not only to denounce but to resist, reverse, or retaliate against (Epstein, Knight, & Shvetsova, 2001). In this view, therefore, when judicial decisions do have broad social or political consequences, it is because powerful political leaders or parties approve of (or at least accept) those decisions and – just as importantly – are willing to implement them. In regime theory, the judges may appear to be the engineer driving the legal or constitutional train, but political leaders have built the track and selected the engineers, thus deciding what direction they want the train to go.