Democratizing justice in an era of populist ascent
When autocrats undermine justice systems, democratizing the courts can help build back trust.
More than 30 years have passed since the fall of the Berlin Wall. In 1989, some scholars heralded the collapse of the Soviet Union as a conclusive victory for capitalism and democracy. But in 2023, only one of these ideologies has remained ascendant. In an era of increasing authoritarian attacks on democracy worldwide, court innovations provide a powerful tool for cultivating democratic relationships—and therefore trust—between communities and the state.
Authoritarian threats to independent judicial systems
Around the world, elected leaders are converting populist support into authoritarian power, governments are using anti-terrorism and national security laws to impose increasingly intrusive forms of governance, and militaries are consolidating coups and states of emergency into long-term autocratic rule. Although there is some evidence that global declines in democracy are slowing, by 2022 the state of democracy enjoyed by the average global citizen had already deteriorated to 1986 levels.
Yet not everyone is rushing to defend systems that would check powerful politicians. In 2021, 52% of respondents to the World Values Survey agreed that it was fairly good or very good to have a strong leader who does not have to bother with parliament or elections (an increase from 38% in 2009).
Although the specifics vary, would-be autocrats use similar techniques worldwide to destabilize democratic institutions. So much so that commentators refer to the existence of an “authoritarian playbook.”
Attacking the independence of judicial systems is a key feature. This is not surprising, as the legal system is one of the most important obstacles to a despot’s rise. In particular, the highest courts in many countries can declare government action to be unconstitutional, ultra vires, or otherwise against the law. The impact of attacks on judicial systems on human rights is catastrophic: without an independent legal system, governments can clamp down on opposition, impose regressive policies, and run roughshod over rights. Independent and impartial judges who act with integrity are key to the rule of law, which ensures that everyone is governed by predictable rules and not the will of an autocrat.
Democratic decline and populist ascent are not restricted to certain countries or regions. The World Justice Project reports that 2022 was the fifth year in a row that the rule of law declined in most countries, with checks on government power falling in 58% of countries and respect for core human rights and freedoms falling in two-thirds of countries. Since November, the UN special rapporteur on the independence of judges and lawyers has expressed concern about judicial independence in countries as diverse as Afghanistan, China, Guatemala, Iran, Israel, Lebanon, and Tunisia.
The approaches leaders use to undermine judicial institutions are strikingly similar. Some chip away at the guardrails that ensure the separation of powers. They may take increased control of judicial selection, promotion, or discipline. Or they may change judicial term lengths, retirement age, or the size or composition of courts to ensure a majority of judges align with them. Finally, and most brazenly, leaders may simply introduce limits on the power of courts to review the legality of their actions. These steps are intended to bring independent institutions to heel, so that they won’t restrict or challenge the exercise of a leader’s authority.
In tandem with attacks on systems, leaders may discredit, harass, and attack judges and other legal officers. They may fail to prevent—or even incite—harassment or threats by the public. Leaders often justify these kinds of abuses with the narrative that judges are out of touch and unresponsive to the will of the people. As a result, judges may fear making decisions that will attract the ire of a powerful leader, such as upholding the rights of an unpopular minority or the political opposition. These attacks also subvert the status and credibility of judges in society, as they seek to drive a wedge between everyday people and the justice system meant to serve them.
Authoritarian regimes often succeed in claiming to be with “the people” and against “elite” judges. In part, this narrative is persuasive because it reflects some truth: conventional legal systems can be remote, alienating, and inaccessible. And, in some countries, judges come only from the highest rungs of the socioeconomic order.
To protect the courts, democratize them
To fight democratic decline and defend rights, people must believe that justice systems are worth protecting. To get there, we must reimagine justice to bring it closer to people’s lives. Concerted energy should be channeled to dismantling systemic discrimination within the judiciary. A representative cadre of independent judges demonstrates that the system is legitimate and can offer fair outcomes for all people. This is not just cosmetic. Diversity in judges’ life experience impacts the range of approaches to legal problems and enriches jurisprudence. And for courts to play a nuanced role in dismantling societal discrimination, the cadre of decision makers should include the expertise born of being on the subordinated end of such harms.
But diversity is not enough. We also need to open the courthouse doors and invite communities into the system. Grassroots advocates working to expand access to justice should be recognized and given a place at the table. And we should encourage the adoption of legal empowerment practices designed to make sure ordinary people can know, use, and shape the law to achieve justice, applying approaches ranging from legal education to community organizing to community-led litigation. These practices can have a radically democratizing effect. When communities know the law and understand how to use legal processes, they are often pulled into a more deeply democratic relationship with the state.
Enhancing the extent to which courts reflect—and engage—the communities they serve can make these systems more valuable to everyday people and therefore more resilient to authoritarian attack.
In a lecture delivered in 2010, the then chief justice of South Africa, Sandile Ngcobo, stated that judicial diversity “promotes confidence because it facilitates the taking into account of different perspectives. In short,” he said, invoking the image of the blindfolded bearer of the scales, “‘diversity allows justice to see.’” When citizens feel seen by justice systems, those systems are in turn recognized as central to democracy and human rights—worth protecting in troubled times, when judges are under attack.
Katarina Sydow is the senior advisor to the United Nations special rapporteur on the independence of judges and lawyers and an adjunct professor of clinical law at New York University School of Law.