Comparative Analysis of Democratization prof. Fulvio Venturino Comparative Politics Principles of Democracy and Democratization Chapter 9: Comparative Judicial Politics and the Territorial Arrangement of the Political System

The key questions The structure and the role of the judicial system and courts The relationship between the central government and local governments

Courts’ primary functions in democracies Conflict resolution Social control Law making

Types of legal traditions Common law is found primarily in Anglo-American nations and is generally based upon the principles established by previous court cases. Judges have considerable autonomy in interpreting precedent Civil law is found in continental Europe and Latin America. It relies on the use of specifically codified laws and written rules. This provides relatively little latitude for judges in interpreting law Religious law systems (such as Sharia law) rely extensively on sacred texts to direct judges in their legal decisions

What is judicial review? Judicial review means the ability of a court to overturn a piece of legislation an act of the executive a lower court decision

Types of judicial review Judicial review can take a number of different forms according to two primary dimensions A posteriori (or concrete) review versus a priori (or abstract) review The US all courts model versus concentrated or constitutional courts model

European countries and the United States compared constitutional review takes the form of an abstract review the power of judicial review is concentrated in one court review can only be in concrete form, or only in the context of a particular case brought before the courts all courts are authorized to consider the constitutionality of legislation

The issue of judicial independence Judges can make decisions without being influenced by elected officials according to four institutional arrangements Judges enjoying a life tenure or at least a very long term A great number of political actors involved in the judges’ selection and confirmation A constitutional court self-determining its own procedures Great difficulty in removing judges from office

The ‘judicialization’ of politics courts have increased their influence over the policy process and politics in general litigants have financial resources and legal expertise that allow them to pursue all claims there is an influence of the developing system of supranational judicial structures

Courts and democracy The submission of the state to law helps the newly democratizing states achieve two crucial goals a clear break with the authoritarian past the development of a culture where the legal bounds of the system cannot be ignored for partisan political gains

Could judiciaries be inimical to the development of democracy? Insulating judges from political pressure may contradict democratic accountability Judicial decisions, emphasizing rights and zero-sum solutions at the expense of compromise, can harden conflict and escalate partisan disagreement

And can judicial power can be good for democracy? Judges may encourage faith in democracy and keep the democratic process open and fair by protecting minority rights making sure that no one is excluded from participation imposing respect for limited government and the rule of law

State and territorial arrangements There have generally been three ways to classify different kinds of states Unitary systems Federal systems Confederal systems

Unitary systems defined Unitary systems are characterized by the concentration of powers in the hands of the central government Important powers such as law making, revenue raising, and defense powers are the purview of the central authorities The powers of local governments are delegated to them by the central government

Unitary systems assessed Advantages Disadvantages clarity in the lines of political accountability greater coordination of policy ability to ensure equality in treatment of all parts of the country promotion of political unity in the face of regional or ethnic differences difficulty in accommodating local differences excessive concentration of power emergence of a bloated central bureaucracy

Federal systems defined Two levels of government rule the same land and people Each level has at least one area of action in which it is autonomous There is some guarantee (usually stated by the constitution) of the autonomy of each government in its own sphere

Recurrent characteristics of federal systems A bicameral legislature, so that the upper house can represent local interests A rigid constitution and a related judicial review The courts have the role of adjudicating and mediating disputes between regions Countries quite large and populous Countries that have ethnic, linguistic or regional differences

Federal systems assessed Advantages Disadvantages promoting consensus in culturally divided societies facilitating local responsiveness redundant in terms of multiple bureaucracies overlapping and unclear jurisdictions excessively slow to act, due to multiple decision-makers promoting regional or ethnic separatism

Two types of federal systems Dual federalism Cooperative federalism The national government wields enumerated powers listed in a constitution It has a limited set of constitutional purposes Local governments are sovereign within their sphere National and regional governments act jointly rather than exclusively The central and the regional governments routinely share power Power is dispersed in such a way as to provide citizens with access to many venues of influence

An alternative classification The distinction between congruent and incongruent federalism refers to whether there is more or less regional distinctiveness relative to the features of the central government Congruent federalism: each of the regional sub-units is essentially a smaller replica of the whole: the US Incongruent federalism: each of the sub-units represents a distinct subsection of the whole: Canada, Belgium, India

A third classification Symmetric federalism: all regions or states have the same status and no distinction is made between the constituent states: the Us Asymmetric federalism: one or more of the regions, states, or provinces has considerably more autonomy than the other sub-states, although they have the same constitutional status: India, Russia

Confederal systems defined The central government relies heavily on the resources and authority of the subnational units, and is otherwise powerless to act without their consent A confederal arrangement is really an alliance of independent political entities, although the central government is afforded some limited powers (such as national defense and the conduct of foreign policy)