Research on constitutional law has come in different waves mirroring the development of states in recent decades. While the decolonization period of the 1960s still kept the old ties of constitutional “families,” comparison based on such ties has become ever less persuasive since the 1980s wave of constitution making following the fall of the Berlin Wall. Research about de facto and de jure constitutional law now tends to embrace institutional details like judicial review powers and procedures of direct democracy. The field of comparative constitutional law is controversial both in methods and substance. It still lacks a consistent framework of comparative tools and is criticized as illegitimate by scholars who insist on the interpretive autonomy within each constitutional system.
Research in the area of fundamental rights has to deal with long-lasting controversies like the constitutionality of the death penalty. Bioethical regulation is another new field where constitutional positions tend to diverge rather than converge. Embryonic stem cell research, therapeutic cloning, pre-implantation genetic diagnosis, and surrogate motherhood are examples from biotechnology and reproductive medicine where constitutional scholars disagree about what, if anything, constitutional law can contribute to provide a basis or limit for regulation. With the worldwide rise of constitutional courts and judicial review, the standards for the interpretation of fundamental rights become more important. Legal scholarship has worked out the differences between the rule-oriented approach associated with Anglo-American legal systems versus the principle-based approach common to continental Europe.
In the aftermath of the third wave of democratization, Latin American courts left behind decades of subservience, conservatism, and irrelevance to become central political players. They now serve as arbiters in struggles between the elected branches, and increasingly affirm fundamental rights. Indeed, some rulings champion highly controversial rights and have huge budgetary implications, sending shock waves across these new democracies. What explains this unprecedented expansion of judicial power? In trying to answer this fundamental question about the functioning of contemporary democracies, scholars of Latin America have developed a truly vibrant and theoretically dynamic body of work, one that makes essential contributions to our knowledge of judicial politics more generally. Some scholars emphasize the importance of formal judicial reforms initiated by politicians, which resulted in more autonomous and politically insulated courts. In so doing, they address a central puzzle in political science: under what conditions are politicians willing to accept limits to their power? Inspired by rational choice theory, other authors zoom in on the dynamics of inter-branch interactions, to arrive at a series of propositions about the type of political environment in which courts are more capable to assert their power. Whereas this approach focuses on the ability of judges to exercise power, a third line of scholarship looks at how ideas about the law and judicial role conceptions affect judges’ willingness to intervene in high-stakes political struggles, championing some values and interests at the expense of others. Finally, more recent work asks whether assertions of judicial power make a difference in terms of rights effectiveness. Understanding the consequences of judicial decisions is essential to establishing the extent to which more assertive courts are actually capable of transforming the world around them.
Land-related disputes and land conflicts are sometimes politicized in elections in African countries, but this is usually not the case. Usually, land-related conflict is highly localized, managed at the micro-political level by neo-customary authorities, and not connected to electoral competition. Why do land conflicts sometimes become entangled in electoral politics, and sometimes “scale up” to become divisive issues in regional and national elections? A key determinant of why and how land disputes become politicized is the nature of the underlying land tenure regime, which varies across space (often by subnational district) within African countries. Under the neo-customary land tenure regimes that prevail in most regions of smallholder agriculture in most African countries, land disputes tend to be “bottled up” in neo-customary land-management processes at the local level. Under the statist land tenure regimes that exist in some districts of many African countries, government agents and officials are directly involved in land allocation and directly implicated in dispute resolution. Under “statist” land tenure institutions, the politicization of land conflict, especially around elections, becomes more likely. Land tenure institutions in African countries define landholders’ relations to each other, the state, and markets. Understanding these institutions, including how they come under pressure and change, goes far in explaining how and where land rights become politicized.