Judging democratisation: courts as democracy builders in the post-war world

Abstract

Can courts really build democracy in a state emerging from undemocratic rule? If so, how they do this, and what are their limits in this regard? This thesis seeks to explore the development since 1945 of a global model of democracy-building for post-authoritarian states, which accords a central position to courts. In essence, constitutional courts and regional human rights courts have come to be viewed as integral to the achievement of, or even constitutive of, a functioning democratic state.

The roles courts play in supporting a democratisation process are onerous, and differ starkly from the roles of such courts in long-established democracies of the Global North. Courts in the new democracies of the post-war world have been freighted with weighty expectations to ‘deliver’ on the promises of a new democratic order, while navigating their own place within that developing order–or, in the case of regional human rights courts, inserting themselves into the democratisation process from without. At both the domestic and regional levels, from within and without the state, they are somehow expected to ‘judge’ democratisation. They are required to assess what is needed to support the democratisation process at any given point, especially in light of key deficiencies of the newly democratic order, and to judge when the democratisation context requires a different approach than may be appropriate in a mature democracy, such as the US or Ireland.

However, the grand claims made for these courts as democracy-builders in existing scholarship have never been subjected to systematic analysis, nor have the overlapping roles of constitutional courts and regional human rights courts been considered in tandem. This thesis addresses a very significant research gap by drawing together a scattered and fragmented scholarship on the roles of courts in new democracies, integrating discussion of regional human rights courts, providing an innovative conceptual framework for how courts at each level act and interact as democracy-builders, and tracing connections between different normative arguments concerning the roles courts should play. As the first attempt at a wholesale exploration of the effectiveness and viability of the existing global court-centric model for democratisation, this thesis examines what we think courts do as democracy-builders, what they actually do, and what they should do. In doing so, it argues for a significant re-evaluation of how we conceive of, and employ, courts as democracy-builders.