1. 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

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

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

4. 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

5. 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

6. 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

7. 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

8. 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

9. 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

10. 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

11. 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

12. 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

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

14. 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

15. 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

16. 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

17. 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

18. 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

19. 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

20. 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

21. 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

22. 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)