Theorizing ‘Shadow Effects of Courts’ in Authoritarian Regimes

• In Event: Poster Session: Judicial Politics & Federalism and Intergovernmental Relations
  In Poster Session: Poster Session: Judicial Politics

Abstract

This work builds on Tommaso Pavone and Øyvind Stiansen’s paper ‘The Shadow Effect of Courts: Judicial Review and the Politics of Preemptive Reform’ (APSR, 116 (1) 2022). ‘Shadow effects’ occur when policymakers reform policies preemptively in response to a threat of judicial review. Through such a mechanism, courts may influence policymaking even without issuing rulings. This paper extends the scope of Pavone and Stiansen’s theory to nondemocratic regimes. We first argue that liberal democracy is not a precondition for shadow effects. Instead, courts can prompt preemptive policy reform even from authoritarian executives, amid limited separation of powers and/or executive constraint. In so doing, they create opportunities for themselves, civil society, and other actors to hold regimes accountable in the absence of electoral competition, party turnover, and other hallmarks of democracy. Second, we theorise that authoritarian regimes experience shadow effects through different causal processes than Norway’s unitary corporatism or American ‘adversarial legalism’ – the two cases theorized to date. We test this theory using two positive cases: Egypt and its Supreme Constitutional Court between 1979 and 2001, and contemporary Singapore and its commercial High Court. The paper makes two main contributions to broader literature. In advancing and clarifying the theory of shadow effects, it helps move ‘judicialisation of politics’ literature beyond narrow definitions of judicial impact, which are generally limited to ex post rulings. Second, it enriches literature on courts in authoritarian regimes. Across authoritarian contexts, we identify shadow effects as forming part of the strategic toolkit of regime executives, bureaucrats, civil society activists, and courts themselves. This in turn suggests that shadow effects play an important role in relationships between authoritarian leaders and the courts they choose to empower. Our findings support claims that studies of judicial politics that either a) dismiss institutions in nondemocratic regimes as mere ‘rubber-stamps’ or performative ‘window-dressing or b) limit their scope to the aftermath of ex post rulings underestimate courts’ impact.

Authors

• Isabella Cuervo-Lorens, University of Oxford

• Gabrielle Gooch