Courts, Constitutionalism, and State Capacity: A Preliminary Inquiry

نویسندگان

چکیده

Abstract Modern constitutional theory deals almost exclusively with the mechanisms for controlling exercise of public power. In particular, focus scholars lies in explaining and justifying how courts can effectively keep power within bounds. But there is little point worrying about excesses government when lacks capacity to get things done first place. this Article, we examine relations between courts, constitutionalism, state other than through limiting Through a series case studies, suggest confront problem building, question informs doctrine. Our studies consist litigation over life-saving medication Brazil, “engagement” remedies South Africa, pretrial detention India, validity India’s recent biometric identification project. As show, crucial variable development doctrine—and while engaging issue capacity, often play role facilitating its expansion. The identify number that use encourage development: providing incentives enhance guiding directing perform specific actions, compensating weak by absorbing problem, endorsing measures purport increase capacity. We then offer an expressly idealized model which negotiate capacity-related concerns. Courts can, certain instances, respond weak-form, dialogic, experimentalist forms review. precise should regard remains be fully studied, but focusing on allows us better explain contemporary doctrine several jurisdictions, highlights challenges involved at once creating

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ژورنال

عنوان ژورنال: American Journal of Comparative Law

سال: 2022

ISSN: ['2326-9197', '0002-919X']

DOI: https://doi.org/10.1093/ajcl/avac009