Democracy Protecting Itself from Itself?

Ebru Erdem

Studies on government in Muslim societies and in the Middle East in particular have mostly focused on authoritarianism. They sought to answer why authoritarianism is the most often observed regime type, and why it persists. Recent work has looked at the role of elections and elected bodies under authoritarianism, explaining why they exist and what purposes they serve (Blaydes 2008; Lust-Okar 2006). The goal of this paper is to shift the spotlight onto the judiciary, and to the political role of high courts in Muslim societies with different levels of authoritarianism.Judiciaries and the judicial processes in Muslim societies have not caught much scholarly attention. Much of the work in this area has revolved around Shari’a. Shari’a law, incorporation of the Shari’a into western style judicial systems and legal codes, conflicts between western and Shari’a inspired codes of family law, and especially the impact of the latter on women’s rights are some of the extensively studied topics concerning the judicial processes in these societies. On the other hand, work on judiciary as a political institution in the Muslim world is scarce, notable exceptions being Moustafa (2003) and Hirschl (2004). Judiciaries may take different institutional forms, be based on different legal traditions, or vary in the level of independence they enjoy, but they are still a political institutions.Why study the judiciary in the Muslim World? Is a focus on the judiciary meaningful given the dominance of the executives in countries with authoritarian regimes? The justification for a focus on the judiciary has different dimensions. From a rational choice-institutionalist perspective: if an institution exists, there must be a reason for it, and we think that investigating the raison d’être of the judiciaries will provide interesting insights about political processes and executive strategies. From an institutional-design perspective, the shape that an institution takes2is related to the strategies of the actors negotiating over that institution, and we would like to use the observed variance in judicial institutions and powers across countries and time periods to learn about different aspects of political bargains that scholars have studied in other political realms. From a democratic development perspective, the establishment of the checks and balances is central to a functioning and sustainable democracy, and we would argue that studying the judiciary is central to understanding the prospects towards establishment of rule of law and a credible commitment to democracy (Weingast 1997).

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