The paper develops a new theoretical framework for constitutional politics that draws insights from evolutionary theory and articulates a descriptive approach to the development of judicial institutions that aims normative neutrality. The goal is to demystify the power held by constitutional courts and further develop the ways by which institutional designers and public officials may push judicial institutions not only to work in a more trivial sense but also to be effective in preventing democratic decay. The paper presents the case of the Brazilian Supreme Court to provide a context-based argument and clarify its practical implications. It addresses the role of the court during the first 18 months of the new Federal Government that came to power in January 2019. As an overview of the court's relationship with other political actors during this period, it critically engages with the argument that Brazilian institutions are working notwithstanding recent episodes of court-curbing.
Authoritarian and semi-authoritarian regimes are likely to have tamed courts which abide by the regime leadership’s will. But scholarly literature on courts in authoritarian regimes already nuanced this picture, by pointing how a reasonably independent court system may be explanatory of degree and forms of opposition repression. In this paper, I develop a case study of Singapore digital speech regulation and find that, when government expects court alignment with its government speech control interests, it is likely to use judicial process to deflect blame and control speech by focus on the speaker, instead of interfering with digital infrastructure and speech intermediaries. This allowed the Singaporean government to sustain the discourse that it is not engaged in arbitrary political persecution. It is just employing law enforcement through courts. Maintaining an appearance of free environment on the Internet is important given Singapore in building a tech/digital industry.
International and constitutional lawyers became interested in international court (IC) legitimacy. Many, however, focus on normative sides of legitimacy (transparency, quality of reasoning) and somehow assume that people will appreciate these normative commitments and grant them with sociological legitimacy.
To challenge this view, I do a thick description of the social reactions to the Lautsi ruling (ECHR), which ordered the removal of crucifixes from Italian schools. I will argue that most Italians rejected its legitimacy as law, finding it completely alien to national narratives and identity. Also, that the few Italians that supported the ruling did so appealing to national narratives (such as State secularism and independence from the Vatican) that were divorced from the ECHR’s own language.
Generalizing from this case, I suggest that, in salient cases, the limits of IC legitimacy rely on how well they allow to be appropriated by national narratives concerning people’s identity.
Systems of electoral justice have been understood as crucial means to securing the preservation of fragile democracies. To a great extent this is true. Having independent judicial bodies deciding on the legality of elections has allowed for the pacific transition of power in Latin America. Paradoxically, at the same time, the development of constitutional doctrines of electoral rights as human rights has the potential to contribute to the erosion of democracy in different ways. This paper studies different cases across the Latin America to shed light on the risks of treating electoral rights as human rights. It focuses on Mexico, Bolivia, Honduras and Nicaragua, where high courts have rendered decisions understanding electoral rights as human rights, while securing measures like the elimination of constitutional presidential term limits–what some have considered undemocratic outcomes.