Law in Books Versus Law in Action: A Review of the Socio-legal Literature

Abstract

The chapter shows that a large part of socio-legal scholarship is focusing on the mobilisation and interpretation of constitutional norms and not on constitution drafting per se. By emphasising the importance of law in action, this research reminds us of the fact that constitution making is not limited to times of constitution drafting but represents a continuous process through which constitutional norms evolve—sometimes in important ways without any formal changes at all. The literature review points to an ongoing debate between demand and supply, between bottom-up perspectives and top-down elite-driven explanations. Uncertainty enters mainly into the latter approach in order to explain the decision of political elites to adopt judicial review and entrench written rights in the national constitution or in order to understand why national governments are willing to tie their own hands by adhering to international rights institutions. Electoral uncertainty is used to explain why elites would transfer power to other institutions through judicial review and entrenching rights. In this perspective, the spread of constitutional review and rights protection around the globe needs to be primarily explained on the basis of an analysis of political and economic power relations at the national and international level. Demand-side and bottom-up explanations do not negate the important role of elites in these processes, but emphasise preceptorial power and how changing ideas and values ultimately allow for explaining the global spread of rights protection. The literature on the proliferation of human rights reveals that the focus on the national level provides a too limited perspective. Processes of diffusion are important in terms of the types of rights and the extent to which human rights are entrenched in national constitutions.