Political Theorists on the Bench: Constitutional Review as a Practice of Political Theory

From the outset of political philosophy, a recurring dream of its practitioners has been to knit more closely together philosophy and politics; philosophers are supposed to become kings and rule the city. More often nowadays, we hear the lamentation that this field lacks influence and is disconnected from concrete policy-making. On the other hand, some authors (e.g. J. Floyd) are prone to retort that it is evident that throughout history, many examples of the impact of political philosophers can be easily found and that some political ideas elaborated upon by them have made a real difference. In my paper, I would like to deal with a quite neglected topic in these debates – the practice of constitutional review as a specific example of how political theory can be practiced in the real world. Some scholars (e.g. D. Robertson; previously and most notably R. Dworkin) even dare to say that writing a piece of constitutional jurisprudence is like writing a piece of political theory: Both systematically develop and expound some basic principles. Although this picture of constitutional jurisprudence is manifestly exaggerated vis-à-vis the majority of the decisions of the constitutional courts (i.e., cases dismissed as inadmissible), at least for some, politically the most important ones, this conclusion remains valid. In the first part of my paper, I will try to characterize how abstract political principles connect with concrete policy decisions in the specific area of constitutional review. A constitutional judge is supposed to develop and expound the political theory enshrined in the Constitution. Due to the general character of constitutional provisions, they must be 'political-theory minded'; otherwise, they will not be capable of applying it satisfactorily when dealing with specific constitutional cases. Inasmuch as the analysis of a particular constitutional principle must be persuasively worked out, there is ample room for political theory. In the second part of my paper, I would like to exemplify the theoretical framework developed in the previous one through the examination of the jurisprudence of two constitutional judges from the Czech Republic. Due to a historical coincidence, one of the most important judges of the Czech Constitutional Court was a political theorist Vladimír Čermák, a Justice Rapporteur in some of its most controversial cases (e.g. Beneš decrees). His student and later Deputy-Chief Justice Eliška Wagnerová was the most influential judge in the subsequent period. Through her jurisprudence, many pieces of liberal theory started to revolutionize the Czech legal system. All things considered, my paper claims that the influence of political theory is clearly manifest in the practice of constitutional review. If so, and if political theorists pay attention to particular constitutional issues in their societies, through their scholarship, they could have a significant impact on the premises of constitutional arguments. This is especially true for countries with robust constitutional review, where political theorists can influence how particular policy disputes are ultimately resolved.