Courts and New Democracies: Recent Works

Abstract

Recent literature on comparative judicial politics reveals a variety of roles that courts adopt in the process of democratization. These include, very rarely, serving as a trigger for democratization, and more commonly, serving as downstream guarantor for departing autocrats or as downstream consolidator of democracy. In light of these roles, this essay reviews six relatively recent books:

Civil Society and the Lawyers’ Movement of Pakistan

“…How is it, though, that judicial actors can actually become so empowered and politicized that they can confront, challenge, and overthrow the authoritarian regime, as happened in Pakistan? Ginsburg () examines the role that courts can play in the democratization process, and distinguishes between two different kinds of roles: upstream, or predemocratization, and downstream, or postdemocratization. Although Ginsburg offers the possibility that judiciaries can play upstream roles that can actually help trigger the democratization of an authoritarian regime, he argues that “there are many reasons that we should not expect courts to be at the very forefront of democratization” (Ginsburg , 727).…”

“…Ginsburg () examines the role that courts can play in the democratization process, and distinguishes between two different kinds of roles: upstream, or predemocratization, and downstream, or postdemocratization. Although Ginsburg offers the possibility that judiciaries can play upstream roles that can actually help trigger the democratization of an authoritarian regime, he argues that “there are many reasons that we should not expect courts to be at the very forefront of democratization” (Ginsburg , 727). Nevertheless, “in very rare instances, courts play a central role in triggering democratization” (724), and it is this unusual possibility that the Pakistani case helps illuminate, as I show below.…”

“…One might have expected the legal community to have accepted Musharraf's actions, as courts had done so many times before in Pakistan's history (see Oldenburg ), but by coming out on to the streets and engaging in direct protest against the regime, the lawyers had for the first time taken on an oppositional role set on pressuring from outside the system, rather than within. This was a remarkable move, especially since, as Ginsburg () reminds us, courts very rarely play any role in “upstream,” or democratizing, politics. So how did this happen?…”

“…This article examines the 2007–2009 lawyers’ movement in Pakistan in order to explore the conditions under which judiciaries become politicized under authoritarian regimes. The conventional wisdom on judicial politics has tended to exclude judicial actors as agents of democratization, but there is a growing body of work that recognizes that courts and lawyers can play a democracy‐affirming role even in authoritarian regimes (e.g., Moustafa ; Ginsburg ; Massoud ). The lawyers’ movement arose in March 2007 in response to General Pervez Musharraf's unconstitutional sacking of the Pakistan Supreme Court Chief Justice Iftikhar Chaudhry.…”

“…Pakistan's case provides an opportunity to examine the ways in which judiciaries become politicized in authoritarian regimes, and the role that lawyers and judges can play in assisting the democratization process. As Ginsburg (, 724) notes, such cases are rare because “there are many reasons that we should not expect courts to be at the very forefront of democratization”—and in the case of Pakistan, it was the bench that led the way by being the first to resist the dictatorship before the bar followed. The mobilization of lawyers and judges against the Musharraf dictatorship is even more remarkable given that the Pakistani judiciary has historically provided judicial cover to military dictators (see, e.g., Ginsburg and Moustafa ).…”