On Thursday 20 May the Foundation for Law, Justice and Society held its Annual Lecture in Law and Society, at which the renowned constitutional scholar Professor Ran Hirschl from Toronto University advocated a realist approach to the current trend towards constitutional supremacy. The lecture, held in collaboration with the Centre for Socio-Legal Studies, Oxford University, was staged at Magdalen College in front of a large audience.
Professor Hirschl, whose work has been described as, 'pathbreaking, compelling, and iconoclastic', argued that, whilst the past few decades have seen a huge increase in the political importance of constitutional courts worldwide, this trend should not necessarily be perceived as a reflection of progressive social or political change, or the result of societies' or politicians' celebration of human rights.
Rather, a realist analysis would indicate that constitutionalism of this kind is "politics by other means", and a mechanism by which governments can strengthen their grip on power. It is no coincidence that governments empower constitutional courts particularly at times when this power is threatened, staffing the courts with government-friendly judges as part of a deliberate political strategy.
In a wide-ranging lecture, Professor Hirschl cited a number of real-world examples of this strategy of hegemonic preservation, including the constitutional court of Thailand, whose efforts in 2006 and 2008 to relieve political tensions and disarm unrest have proven futile.
The lecture was followed by a workshop on 21 May in which a roundtable of constitutional and legal experts conducted a comparative analysis of the constitutional development of five countries to assess how the social and political conditions of the time impact on constitution-making.
The papers from the workshop are expected to form part of a forthcoming book on the Social and Political Foundations of Constitutions, further details of which will be made available over the coming months.