Constitutional courts and political uncertainty: Constitutional ruptures and the rule of judges

Abstract

In a constitutional rupture, when the fundamental rules of political life are uncertain, it is unlikely that constitutional courts could play a major role. Yet in some remarkable cases, such courts transform into highly interventionist political actors, even achieving some success. This paper provides a series of short case studies highlighting Hungary, Russia, Turkey, and South Africa to illustrate common elements that are shared across interventionist courts in such times-namely institutional centrality, strong and personalized court leadership, and division among elected branches of the state. All of these factors then combine with a court-derived constitutional vision that undergirds a constitutional court's legitimacy in the extra-constitutional period. This dynamic is then applied in detail to the case of post-Mubarak Egypt in order to explore the ephemeral and self-limiting nature of the interventions.