By Thomas Giacoletto
In their Explaining Institutional Change, James Mahoney and Kathleen Thelen try to explain the way institutional change gradually takes place in the long run. They argue that change often occurs when “problems of rule interpretation and enforcement open up space for actors to implement existing rules in new ways.” This would, for example, happen with the emergence of new phenomena which are not described in the previous rules; what ‘threat to the nation’ meant when a country’s constitution was drafted probably is very different than what is now a threat. However, whether this reinterpretation is possible depends on the discretion actors have towards a particular rule. Furthermore, although change can gradually take place, only an actual change in the rule (and not in the interpretation) will have a stable effect.
An interesting example of rule interpretation that prevents change has recently been over the news with the death of the Supreme Court of the United States Justice Antonin Scalia. Scalia was originalist in his interpretation of the constitution, which means that “when you consult the text, you give it the meaning it had when it was adopted, not some later modern meaning” (Scalia, 2012). Because of this interpretation, he did not believe that existing rules have to adapt to the “new reality” that Mahoney and Thelen describe as a driver for change.
On the other side, however, they explain that change in the enforcement of a rule can lead to change: a local police officer can choose not to enforce a law on a local level because it is not practical, or simply ridiculous. However, this type of change is extremely fragile as the officer can be fired (not to have the law respected), and the change implemented might not remain if another officer is appointed. An actual change in the law is the only way stability can be insured with the new institution. The way constitutional courts (and supreme courts as they also can rule laws as anti-constitutional) read and interpret the texts is therefore very important for institutional change.