Polarization – A Comparative Perspective

This Article attempts, for the first time, to describe and typologize the effects of polarization on constitutional and supreme courts around the world. I identify three models of such effects, which I term “court polarization”: mirror polarization (the US) – in which the court mirrors the political division in society; one-side polarization (the UK and Westminster model countries) – in which the court reflects one side of the political divide more than the other; and cracks in consensus-based nomination processes (Continental Europe) – in which the nomination of constitutional judges which was based on consensus is being challenged by the rise of fringe parties. These three models help understand the interrelation between general polarization and court polarization and the effects of political and judicial structures on court polarization. It can also help selecting the more effective strategy in dealing with court polarization – resisting or accommodating it.

The private-public divide in the age of polarization

One of the arenas in the battlefield on polarization is the “public-private” divide. While libertarians fiercely resist any attempt to implement constitutional rights in the private sphere, CLS supporters and feminists on the left deconstruct the private-public divide, essentially arguing, following Isaiah Berlin, that “freedom for the wolves has often meant death for the sheep.” This paper rejects both libertarianism and the overarching leftist critic and adopts a Rawlsian line of thought to properly balance freedom and equality. The paper outlines a nuanced, “principled balancing” between freedom and equality, taking into account four major factors: the nature of the right that is applied in the private sphere, the nature of the infringed freedom, the scope of the implementation of the constitutional right, and framework of implementation of the right (legislation, direct implementation, or Drittwirkung).