A Tale of Two Maps: The Limits of Universalism in Comparative Judicial Review

Abstract

The explosion of scholarship in comparative constitutional law in the last decade tends to overshadow the traditional suspicion that comparative law exhibited towards public law. For the greater part of the 20th century, the dominant paradigm in comparative public law was particularism and strong skepticism towards universalist features and possibilities in public law, especially constitutional law. With the rise of judicial review after World War II and especially in Eastern Europe after the collapse of the Soviet Union, comparative judicial review has begun to flourish. This paper is a comment on a paper by Professor Miguel Schor entitled "Mapping Comparative Judicial Review" presented at the Second Osgoode Hall Law School Constitutional Law Roundtable in Toronto in February 2007. In this paper, the author argues that the comparative scholarship on judicial review overemphasizes the centrality of "the Question of Legitimacy" of judicial review in a democratic polity. This is attributed to the mistaken extrapolation of the American debate over judicial review to universal application. Drawing on the examples of Canada, South Africa and Israel, the author argues that the Question of Legitimacy has less importance and a decisively different character in those countries than in the United States. It is time to recall and embrace some of the particularist skepticism in comparing judicial review across different legal systems.