chapter  8
17 Pages

The politics of courts in democratization

ByTOM GINSBURG

My topic is the relationship of law to democratic transition. Much of the literature on this issue is normative in character, celebrating the role of courts in constraining or eliminating authoritarianism. The literature seems to assume that the rule-of-law and democracy go together like the proverbial motherhood and apple pie. I wish to take a more cautious view, trying to identify the conditions under which courts can play a positive role in facilitating democratization. To undertake this inquiry, we need to understand how courts are viewed in

different political regimes. Thus far the literature has tended to treat the politics of courts in authoritarian regimes differently from the politics of courts in democratic regimes. This chapter seeks to point out the similarities, and to treat the two in a unified framework. Only by doing so, I believe, can we both understand variation in the roles law plays in different phases and trajectories of democratization. More concretely, we need to understand the legacies of law in the authoritarian period before we can truly understand the functions of law in a democratic one. My approach is interdisciplinary in character in that I draw on a tradition

of scholarship that treats courts as political actors (Shapiro 1964, 1981; Maravall and Przeworski 2003b). My focus is not on the rule-of-law as an ideal, but on the rule-of-lawyers that populate real-world governmental institutions. Treating courts as governing institutions means that courts are likely to reflect, at a very broad level, policies of a governing regime. This should not be mistaken as seeing courts as pure agents of politicians and their immediate policy preferences, but rather to recognize that there must be some support for the broad policies that courts pursue in order for these policies to be sustainable. More generally, I seek to understand the roles of law at different phases of the democratization sequence. Courts are called on to play different functions in different societies and are given genuine independence and discretion over certain areas of policy to accomplish these functions. These roles are likely to vary with the needs and powers of other regime actors.