Public Law’s Concern for Path-Dependent Institutions

Academic literature often ascribes to crises the potential of creating so far unavailable political alternatives. What the paper is concerned with is the current approach of public law and courts towards crises in specific policy areas that result from path-dependent institutions. The phenomenon of path dependency has been widely discussed in institutional change literature, where it describes self-reinforcing dynamics of existing institutional arrangements (Pierson, 2004). Higher political costs of fundamental reforms vis-à-vis ‘blame avoidance’ strategies (Weaver, 1986) and more generally, status quo bias of democracy’s short-termism (Boin & Hart, 1996, Rosanvallon, 2011) have also been discussed. In contrast, except for democratic experimentalist tradition, path-dependency has been mostly neglected in constitutional law (Sabel & Simon, 2004) and this is precisely the gap that the paper will address with examples of existing tendencies in apex courts of several jurisdictions.