6 T Ginsburg and G Ganzorig “When Courts and Politics Collide: Mongolia’s Constitutional
Crisis” (2000-2001) 14 (2) Columbia Journal of Asian Law 309 (-326).
In his pioneering work on judicialisation of politics, Shapiro placed the judiciary at the heart of governance much more than legal purists were ready to concede.8 The notable resurgence of the judiciary as a political force in transitioning polities in particular, validates Shapiro’s views on the nature of the judicial function in democracies.
Mature democracies have not been immune from the continually extending reach of judicial power and its impact on governance in recent times. However, accounts of the judicial function, especially in transitioning polities disclose that judicial power has challenged and in some cases, strongly eroded parliamentary sovereignty.9 From the Americas to Europe, through Africa to Asia, the story is the same; the judiciary is playing a decidedly more prominent role in shaping policy and governance than ever before.10 For this reason, Hirschl draws attention to a ‘rapid transition to “juristocracy”.’11
Pildes12 and Isaacharoff13 both refer to the judicialisation of politics as the ‘constitutionalization of democratic politics.’ Their terminological preference is easily the norm in scholarly considerations of judicialisation of politics by American legal and political theorists.14 It appears to be preferred perhaps for its more orthodox origin which in-effectively obscures the centrality of judicial governance in contemporary democratic experience. After all, it is practically inconceivable to discuss democratic arrangements without some form of constitution and thus, the incidence of institutional ‘constitutionalism’ or ‘constitutionalisation.’
8 M Shapiro “Political Jurisprudence” (1964) 52 Kentucky Law Journal 294.
9 Ginsburg note 2 supra at 3-5.
10 Ginsburg note 2 supra at 6-9 .There is a growing body of literature on this theme in recent times.
See for instance M Shapiro and A S Sweet, On Law, Politics, and Judicialisation (Oxford University Press Oxford 2002), A S Sweet, Governing with Judges: Constitutional Politics in Europe (Oxford Clarendon Oxford 2004), N C Tate and T Vallinder The Global Expansion of Judicial Power (New-York University Press New-York 1995), A S Sweet, Governing with Judges: Constitutional Politics in Europe (Oxford University Press Oxford 2000), R Hirschl Towards Juristocracy: The Origins and Consequences of the New Constitutionalism (Harvard University Press Cambridge Massachusetts 2004), and Sieder, Schjolden and Angell (eds.) note 4 supra.
11
R Hirschl “Resituating the Judicialisation of Politics: Bush v Gore as a Global Trend” (2002) 15 (2) Canadian Journal of Law and Jurisprudence 191 and Hirschl note 10 supra at 13.
12 R H Pildes “The Supreme Court 2003-Foreword: The Constitutionalization of Democratic
Politics” (2004) 118 (1) Harvard Law Review 28.
13
S Isaacharoff “Constitutionalizing Democracy in Fractured Societies” (2004) 82 Texas Law Review 1861
14 This trend is common in American legal scholarship generally. Thus see H K Prempeh
“Marbury in Africa: Judicial Review and the Challenge of Constitutionalism in Contemporary Africa” (2006) Tulane Law Review 80: 1239, B Ackerman “The Rise of World Constitutionalism” (1997) 83 Virginia Law Review 771 (-791) dealing with a comparative evaluation of judicial developments in South Africa, Asia and Europe and R G Teitel “Transitional Jurisprudence: The Role of Law in Political Transformation” (1996-7) 106 (7) Yale Law Journal 2009.
Shapiro and Sweet have noted the ironic dialectic of the judicial function in democratic societies. Public office holders in the political branches seek legitimacy by subjecting themselves to elections and control by the people they are to serve. Judges on their part claim to be ‘neutral servants of “the law”.’15 In other words, unlike other government officials and other institutions of a democratic state, judges achieve legitimacy by claiming neutrality in the exercise of their powers and performance of their duties. Thus, their allegiance is to law and not the people law serves. But while it is indispensable that the judiciary upholds the law in an independent manner, Shapiro and Sweet make the important point that judges do have a lot to do with politics.
In transitioning societies, particularly authoritarian ones, the judiciary is usually the only one, of the three branches of government that has a record of institutional continuity through out the period of distortion in the exercise of state powers. The political branches suffer either suspension or abrogation at some points and only remerge as democratic institutions in the post-authoritarian period. They are usually, as in the Nigerian experience, fragile partly due to their chequered institutional existence. The judiciary thus emerge as a critical player in governance building on the privilege of institutional continuity and function as a mediator.
The recognition that the judiciary plays an important role in established democracies,16 usually through horizontal accountability (despite institutional continuity and relatively better developed accountability mechanisms), in a way explains the ascendance of judicial power in polities transitioning to democracy. This is because (as explained above), the displacement experienced by the other branches saddles the transitional society with fragile political institutions that are usually ill–equipped to effectively manage the resolution of inevitable state- society and inter-institutional disputes that arise in the context of transition. The judiciary easily becomes the choice forum for resolution of myriad contestations. However, the growing incidence of horizontal accountability in established democracies does not fully explain the remarkable growth of judicial power in transitional societies. Some normative questions regarding the validity of the judicial role in policy-making remain unresolved.17 Specifically, does the
15 Shapiro note 8 supra at 3-5. 16
Pildes note 12 supra. See also, R Bork The Tempting of America: The Political Seduction of the Law (The Free Press New York 1990) and R Bork Coercing Virtue: The Wordlwide Rule of Judges (Vintage Canada Toronto 2002).
experience of transitioning polities of the judicial function not challenge the rather well established objections to the tangential ascendance of judicial governance at the heart of the counter-majoritarian argument? Is the devolution of more powers to the judiciary not directly antithetical to the very principles of accountability and representation at the heart of the democratic transition project? These are important questions to which the discussion now turns.