With a little help from the courts: the promises and limits of weak form judicial review of social and economic rights

Abstract

This is a review of Mark Tushnet’s Weak Courts, Strong Rights: Judicial Review and Social Welfare Rights in Comparative Constitutional Law. The review outlines the main arguments in the book and then moves to elaborate on two preconditions which are necessary for Tushnet’s project to succeed: the existence of a strong civil society and an institutional willingness to implement social welfare rights. In addition, this review seeks to situate the book within Tushnet’s broader constitutional theory project. In particular, the review attempts to reconcile this work with Tushnet’s 1999 Taking the Constitution Away from the Courts, a work that initially seems to be diametrically opposed to his new book.