The New Constitutionalism and the Judicialization of Pure Politics Worldwide

Abstract

What explains where, when and how the judicial imagination travels in its search for comparative reference? Possible answers emanate from: (i) historical accounts of engagement with the constitutive laws of others that examine episodes of selective constitutional borrowing and reference; (ii) comparative public law scholarship that stresses the significance of various structural and disciplinary elements, most notably legal training, legal tradition and linguistic capacity, in elucidating patterns of transnational judicial dialogue; and (iii) from social science accounts that stress the significance of strategic and socio-political factors in explaining selective judicial engagement with the constitutive laws of others. In this chapter, I elucidate the main findings and assess the contribution of each of these approaches.