To the various systems of government known to political science we may now add another—“juristocracy.” Although not rigorously defined in this book, the term refers to a process of judicial empowerment in which judiciaries take on powers and responsibilities previously exercised by representative institutions. While there is little new in recognizing that courts often make decisions with profound political consequences, this study considers recent transfers of power to judiciaries to be unprecedented in their breadth and scope, features of what the author describes as “the new constitutionalism.”

While many scholars, commentators, politicians, and members of the public tend to look favorably on the development of new opportunities for judicial intervention, this study adopts a more skeptical view. It is, of course, an essential element of academic research for received truths to be examined in the light of new information. In this case, Ran Hirschl has chosen to use comparative methods to examine whether constitutions, bills of rights, and judicial review achieve the goals and purposes so often ascribed to them.

The broad theme of Towards Juristocracy, that governing elites initiate and support delegations of power to the judiciary in order to preserve their own hegemony, is tested through an examination of the origins and consequences of recent constitutional developments in Israel, Canada, New Zealand, and South Africa. In each case, though admittedly in vastly different circumstances, public and parliamentary doubts about the value of bills of rights and judicial review were ultimately overcome. This study emphasises common patterns of causality and consequence in each case, reviewing each country's recent constitutional history, the content and character of its charter of rights, and the broad tendencies to be found in its constitutional jurisprudence.

Although the outlook is broadly comparative and the language often theoretical, the principal propositions derive largely from the author's understanding of the origins and consequences of judicial empowerment in the State of Israel. The point of departure for this study, therefore, lies with a critical assessment of the Supreme Court of Israel, an institution emboldened to issue often far-reaching judgments on a whole range of matters. As Hirschl shows, many of these decisions coincide closely with the interests and ideological preferences of elite groups whose political power had otherwise begun sharply to decline.

In another sense, therefore, the methodology involves a series of case studies—Canada, New Zealand, and South Africa—designed to test whether the conclusions drawn with respect to Israel and its Supreme Court have a wider application. The stakes would appear to be high, for notwithstanding the apparently high regard in which judges and judiciaries are commonly held, this book argues that juristocracy represents “a new political order,” one that “has been rapidly establishing itself through the world” (p. 222) and has less to do with the establishment of a more just and progressive society than with the consolidation of power by elites desperate to preserve their dominance. On this reading, moves to develop justiciable bills of rights, and to take courts to topics (“political questions”) that they would have been reluctant to address in the past, has little if anything to do with a devotion to human rights, with the author instead seeing efforts to entrench neoliberal, small-state policies and perspectives by placing them outside the reach of newly emerging majorities.

There is, perhaps, something of a puzzle about recent tendencies toward the development of more robust systems of judicial review. It is less clear, however, that these developments reflect the ability of “elites” to disguise their own self-interested agendas by associating themselves with movements to enshrine human rights and constitutional review mechanisms into national and international law and jurisprudence.

While Hirschl says that it might require several lifetimes to test some of his propositions, a few are more quickly dispatched. There is no mystery in his discovery that the New Zealand judiciary has made little use of the country's Bill of Rights in order to bring about a progressive redistribution of resources, since, as he has already noted, the document was deliberately designed to exclude enforcement by the courts of economic or social rights. While it is useful to see whether recent Israeli experience with judicial review has analogues in other parliamentary democracies, excessive reliance on the “elite hegemony” thesis introduces distortions, with unrelated developments linked up in at times inappropriate ways. New Zealand's “economic elite,” for instance, is credited with engineering New Zealand's “joining multilateral economic groups such as … the South Pacific Forum” (p. 83), misrepresenting both the Pacific Islands Forum (as it is now known) and the circumstances behind its establishment in 1971. The author confuses “the libertarian New Zealand Party” (p. 85), which effectively contested only one election, 1984, and which never won a single parliamentary seat, with the populist New Zealand First Party, which was founded in 1993 and won the third-highest number of seats in Parliament at the elections of 1996 and 2002.

It is surprising to see pivotal Treaty of Waitangi decisions by the Court of Appeal in 1987 and 1989 overlooked, as it was these that brought the treaty to the forefront of the country's jurisprudence and placed real limits on parliamentary sovereignty. This is somewhat unfortunate for the author's argument, as these decisions preceded the adoption of the Bill of Rights Act. It is difficult to accept that that legislation was responsible for making the New Zealand Court of Appeal “a central forum” (p. 193) in dealing with Maori grievances when the act has, in fact, had little to do with the emergence of a more treaty-centred polity. An analysis linking the drafting of a Bill of Rights for New Zealand with “the very same politicians who introduced comprehensive neoliberal economic reform” (p. 87), and with an “oligarchy of wealth and political power seeking to preserve [its] hegemony” (p. 89), simply lacks credibility.

Although often repetitious—its core propositions are restated at regular intervals—the author has performed a useful service by encouraging commentators to look more carefully at the actual outcomes of measures portrayed by their proponents as enhancing constitutional democracy. It is legitimate to enquire whether constitutions and charters to define and defend a people's rights really do work that way in practice, or whether by accident or design they come to serve other motives and purposes.

Hirschl would not be the first to write a book evincing a distrust of the legal profession. His agenda, however, is concerned with the skill with which unrepresentative judicial elites, advancing their own interests, ideologies, and policy programs, have managed to accumulate new powers, infiltrating governance structures at national and supranational levels. His most sweeping recommendation, that proponents of social, political, and economic change need to look elsewhere than to the courts for genuinely progressive and redistributive transformations, warrants serious consideration.