The Juridical Coup d’État and the Problem of Authority: Response to G. La Palombella, W. Sadurski, and N. Walker

Abstract

I wrote The Juridical Coup d’état and the Problem of Authority for two main reasons: to solicit responses to a set of questions that I found intriguing, and to consider whether the topic was worth pursuing more systematically. Although the paper is organized otherwise, I proceeded in a way that is usually not recommended in comparative social science. I began by considering a set of findings – concerning the evolution of three legal systems – that are patterned in broadly congruent ways, and then began asking theoretical questions. In each system, a court had moved to confer upon itself new constitutional-jurisdictional authority, in the course of performing its delegated adjudicatory tasks; and these rulings gradually provoked systemic transformation. My interest was not so much in the cases, which I knew well, but how one might deal with them theoretically. Professors Walker, Sadurski, and Palombella have been generous with their time and comments on the paper, as they have since I presented it at the European University Institute, in spring 2007. I agree with much of what they have written, and I have sympathy with their criticisms, even when we disagree. In this response, I will try to clarify my views in light of their comments. In the first part, I will try to build an even stronger argument to the effect that the label – juridical coup d’état – is theoretically appropriate. In the second part, I will focus on the process of transformation (constitution-building).