What Motivates Judiciaries to Help or Hinder Democratic Transitions?

• In Event: Democracy and Courts: Navigating Backsliding and Building Trust

Abstract

What Motivates Judiciaries to Help or Hinder Democratic Transitions?

The “judicialization of politics” – that is, broadly, designating or resorting to courts to mediate political conflicts” – is among the salient global trends of the post-Cold War era. But the conduct of courts during periods of political change has varied. They aided the transition to democracy in Hungary (1990-1996), undermined a democratically elected president in Chile (1970-1973) and Egypt (2011-2013), and threatened or destabilized electoral politics in hybrid regimes such as Pakistan (2009-2013) and Turkey (2007-2008), to highlight just a few examples. How to explain the variation?

In the paper I am proposing, I argue that underpinning the variation is judicial agency – what judges and courts want, and how their wants within regime change over time. I posit judges as a faction of the political elite. Regimes that succeed in integrating that elite, by allowing the exercise of judicial agency, are more likely to get the judiciary’s support during periods of weakness or uncertainty. Allowing a safe, exclusive domain for the exercise of judicial agency means, among other things, a broader space for substantive rule of law, even in autocratic regimes, as the cases of Egypt (1971-2010) and Chile (1980-1990) demonstrate.

My account, drawing on my dissertation work focused on Egypt, is a departure from the more influential theoretical account of judicial power – the empowerment thesis (among its more eloquent articulators are Ran HIrschl and Tom Ginsburg). In its diverse strands, this thesis contends that the holders of executive power may transfer a stock of their power to the judiciary to avoid worse outcomes – for their survival, for the economy, or both. And once courts receive this parcel of authority, they nearly automatically employ it to advance liberal causes (e.g., safeguard rights) and open up politics. Hardly does any attention go to the political preferences of judges, the contingency of those preferences, or what constituted them. My paper thus offers a theory of judicial agency within regime.

This account of judicial power yields several dividends. First, it explains why judiciaries, even those that were “activist” under the autocrat, might throw wrenches into the democratic transition when he tumbles or trembles. Second, as it rejects widely accepted affinity binaries – e.g., democracy and rule of law – in favor or a more robust historical-institutionalist analysis, it shows that substantive judicial autonomy can indeed exist within autocratic regimes. During periods of political uncertainty and transition, such autonomy can be detrimental to democratization. And third, it casts judicial “activism” within autocracies and hybrid systems as a function of how embedded the judiciary (as a faction of the political elite) is into the regime, and not as an expression of valiant judges countering or standing up to the capricious executive.

The paper engages with and advances the scholarship on authoritarian durability, democratization, and the sources of judicial power.

Author

• Waleed K Salem, University of Washington