D07(b) - Courts in State Action Authority Building, Power Struggle, and Language Diffusion of Courts and the Legal Profession
Date: Jun 4 | Time: 03:15pm to 04:45pm | Location: SWING 405
Chair/Président/Présidente : Filiz Kahraman (University of Toronto)
Co-Chair/Président/Présidente : Filiz Kahraman (University of Toronto)
Session Abstract: Courts serve many, if not most, state functions in contemporary politics. Political parties leverage, sometime outsource, the court to address conundrums that politicians fail to resolve. At founding moments, states assure commitments in constitutions, and the legal professions contest political ideals in the language of law. Courts are also called to adjudicate in fights between Caesar and God, answering questions of spiritual nature. The four papers on this panel evaluate the actions that courts take that serve fundamental state functions from a comparative perspective. Using the South African Constitutional Court as an in-depth case study, Ma’s paper explores the conditions under which a dominant political party allow a high court to survive and, moreover, consistently comply with its unfavorable rulings. Both focusing on the critical juncture of state formation, Hudson and Hsu approach the court from two different angles: Hudson studies the texts of national constitutions to capture patterns of diffusion, while Hsu studies the legal professions in Hong Kong and Taiwan to understand the origins of political ideals in the system of law. Finally, Kamal’s paper turns to countries with an official religion. Through examining capital cases in Pakistan and Bangladesh, it investigates the dilemma faced by their courts, of having the duty to uphold the official religion on one hand and protecting religious freedom on the other.
The Political Origins of Professional Identity Lawyers, Judges, and Prosecutors in the Advancement and Retreat of Authoritarianism: Ching-fang Hsu (University of Toronto)
Abstract: Where does the legal profession’s identity originate from? How do we explain the intra-professional variations, as multiple legal professions diverge in their political orientations? This paper argues that the legal profession critically develops their core identity resisting incumbent rule when the state undergoes fundamental power reconfiguration, despite the direction of movement to or from authoritarianism. It is their political position as opposed to power in a critical juncture of state transformation that determines the legal profession’s collective ideal of who they are and what actions they take. Drawing on 245 interviews in Hong Kong and Taiwan between 2016 and 2018 with legal professionals, extensive fieldwork and archival data up to the 1980s, this paper demonstrates how power reconfiguration shapes professional identity. As respective professions experienced different levels and models of authoritarian containment, they took separate trajectories to challenge, acquiesce, or selectively co-opt with the incumbent power. Different legal professions hence pledge to different normative commitments. Taiwanese judges categorically defend judicial independence, lawyers advocate for people’s rights, and prosecutors marshal under justice to check abuse of power. Conversely in Hong Kong, barristers stand up for judicial autonomy, while solicitors vow to serve the homo economicus.
Constitutional Memes: The Propagation of Language Across National Constitutions: Alexander Hudson (Max Planck Institute)
Abstract: When writing a new constitution, drafters are usually heavily influenced by what has come before. While weighted toward the precedent texts of their own country, drafters also look abroad for guidance. This paper seeks to establish the degree to which specific text has been copied between all currently-in-force national constitutions and international covenants, and to determine the factors that are most salient in predicting when copying will occur, and from which texts. The novel technique that I use to empirically identify this phenomenon is to match copied strings of text between constitutions, and between constitutions and international covenants. Preliminary results from a smaller dataset analyzing borrowing from the US Constitution indicate that fairly intuitive dynamics are at work. Firstly, states that have similar legal and institutional traditions (common law, presidentialism, etc.) to the United States are more likely to copy passages from the US Constitution. Secondly, states that have been occupied or governed by the United States are more likely to copy passages from the US Constitution. There is an established body of research on the cross-national diffusion of constitutional content generally, and from the US constitution specifically. There is very little work on the spread of particular wording choices. While the same factors are likely to be in play, this research will build on the previous work by measuring this very specific type of diffusion.
Who Speaks for Religion? Courts, Islam, and State Power: Faisal Kamal (University of Toronto)
Abstract: Over the past decade, the power of the state to authorize an official religion has been challenged in courts. These challenges have emanated in polities with a state religion (such as Pakistan) as well as those that have constitutionally enshrined secularism in one form or another (e.g. Bangladesh). This paper investigates the nature of these challenges. In particular, the goal is to interrogate precisely how legal petitioners frame their appeals to align with the state’s duty to uphold the majority religion, and call out its failure, and freedom of religion to undercut the state’s sovereignty to speak authoritatively about religion. By examining two criminal cases from apex courts in Pakistan and Bangladesh involving death sentences, the paper demonstrates how appellants in these settings framed their appeals to deny any alternative state narrative about Islam, its position within broader society, its role within the constitutional scheme, and its effective operation within the legal system. The paper contends that these cases underscore a glaring conundrum faced by courts as representative of states trying to protect religion: to uphold a majority religion while guaranteeing freedom of religion, the state’s authority to speak for religion is chipped away by claimants who offer a competing, even contradictory, interpretation of what religion means.
Explaining Judicial Authority in Dominant-Party Democracies: The Case of the Constitutional Court of South Africa: David Ma (University of North Carolina-Chapel Hill)
Abstract: Why do authoritative constitutional courts sometimes thrive even in dominant-party systems? Under what conditions would a dominant political party allow such court to survive and, moreover, consistently comply with its unfavorable rulings? This paper identifies as a key determining factor the constitutional entrenchment of wealth redistribution in the form of private corporate equity transfer. Since the resultant policy threatens private capital, the dominant party would want to avoid the ensuing capitulation event of massive capital flight by credibly committing to a restrained practice of wealth redistribution through an authoritative constitutional court that can apply a brake to the program when it goes too far. The analysis is based on an in-depth case study of the Constitutional Court of South Africa. The empirical research is based on the rather unique implication that while the dominant-party regime wants independent justices, it nonetheless prefers to interfere with the appointment process such that independently pro-redistribution candidates are more likely to be appointed. This is tested by carrying out a survey asking local judicial experts to rank these candidates on a number of attributes. In addition, the causal mechanism proposed by the theory is broken down into its components and, together with the theory’s assumptions, will be validated by a process tracing exercise. This is performed via extensive interviews with top business elites in South Africa.