Constitutional Courts and the Exceptionality of Regime Change

Abstract

<p>This chapter challenges two common ways of understanding constitutional courts in transitional regimes—the Descriptive View and the Normative View. The Descriptive View describes constitutional courts as active participants in transitional politics, while the Normative View suggests that successful transition requires constitutional courts taking up a democracy-building role. The chapter argues that both have failed to properly account for the exceptionality of regime change. The exceptional nature of transitions suggests that there is tremendous diversity among the paths of transitional regimes, patterns of constitutional politics, and courts’ involvement during transitional periods. The fact that courts are operating in transitional regimes tells us very little about their actual judicial roles. The exceptional nature of transitional regimes also has normative implications. The chapter contends that the exceptionality of regime change can potentially work against judicial intervention. Exceptionality, in and of itself, is not a justification for a stronger judicial role. It is argued that there are situations where it is, in fact, desirable for courts to stay out of transitional politics.</p>