(Page 3 of 52) - Judicial Politics in Authoritarian Regimes authored by Moustafa, Tamir.

revolutionary.

American public law scholars, long focused solely on judicial politics in the

United States, have begun to examine the causes of this extraordinary development as

well as the long term political, social, and economic implications on a global level.

Several recent studies have pushed this research agenda forward by examining the causes

and consequences of the expansion of judicial power in East Asia, Latin America, and

Eastern Europe.

However, it remains an almost universal assumption, even within this

new wave of comparative scholarship, that competitive party politics is a prerequisite for

an expansion of judicial power. In his recent study of constitutional politics in East Asia,

for example, Tom Ginsburg contends that “where a single party believes it is likely to

hold on to political power, it has little incentive to set up a neutral arbiter to resolve

disputes about constitutional meaning. It would rather retain the flexibility to dictate

outcomes without constitutional constraint. Flexibility allows policy change and

maximum exercise of power.”

Scholars generally assume that courts in authoritarian

states act as the pawns of their regimes, upholding the interests of governing elites and

frustrating the efforts of their opponents, because power is concentrated in the hands of

Ran Hirschl, Towards Juristocracy: The Origins and Consequences of the New Constitutionalism

(Harvard University Press, 2004); Alec Stone Sweet, Governing with Judges: Constitutional Politics in
Europe (Oxford University Press, 2000); Neal Tate and Torbjorn Vallinder, eds., The Global Expansion of
Judicial Power (New York University Press, 1995); Martin Shapiro and Alec Stone Sweet, On Law,
Politics, and Judicialization (Oxford University Press, 2002); Lisa Conant, Justice Contained: Law and
Politics in the European Union (Ithaca: Cornell University Press, 2002), pp. 1-94, 177-242.

Tom Ginsburg, Judicial Review in New Democracies: Constitutional Courts in Asian Cases. (Cambridge

University Press, 2003); Rebecca Bill Chavez, The Rule of Law in Nascent Democracies: Judicial Politics
in Argentina. (Stanford University Press, 2004); Jodi Finkel, “Supreme Court Decisions on Electoral Rules
after Mexico’s 1994 Judicial Reform: An Empowered Court” in Journal of Latin American Studies, v. 35
(2003): pp. 777-799; Herman Schwartz, The Struggle for Constitutional Justice in Post-Communist Europe
(Chicago: University of Chicago Press, 2000).

Tom Ginsburg, Judicial Review in New Democracies: Constitutional Courts in Asian Cases

(Cambridge: Cambridge University Press, 2003), p. 24. Similarly, Chavez finds that “the balanced
dispersal of political power among competing actors is a necessary condition for the rule of law.”
Rebecca Bill Chavez, The Rule of Law in Nascent Democracies: Judicial Politics in Argentina. (Stanford
University Press, 2004). These models build, primarily, upon the initial logic laid out by Landes and
Posner in their seminal article, “The Independent Judiciary in an Interest-Group Perspective,” Journal of
Law and Economics, vol. 18 (1975): 875-901.