Comparative study of the Constitutionalism and State Capacity

Abstract

Modern constitutional theory typically emphasizes controlling the exercise of public power, especially by examining how courts can check government excesses. However, an underexplored yet essential aspect of constitutionalism is the government’s capacity to effectively implement its decisions and serve public needs. This article examines the role of courts in addressing state capacity and how effectively a government can function through various international case studies. These include litigation over life-saving medication in Brazil, judicial interventions in South Africa, and Pakistan’s biometric identification system and pretrial detention issues. The authors argue that state capacity is critical to shaping constitutional doctrine and that courts can actively support capacity building. They do so by incentivizing capacity improvements, guiding state action, and compensating for government weaknesses.