Legal Mobilization and Effectiveness of Courts in Post-Colonial States

Abstract

Most countries in the contemporary world have written constitutions which contain a charter of rights and express provisions enabling constitutional review by courts. In post-colonial countries, where legal systems were established de novo relatively recently, courts have generally failed at upholding the rule of law. Only a handful of courts have held political elites accountable for abuse of power. Still others have aligned with political elites and assisted in the closure of political space for less powerful interests.

What explains this variation in the effectiveness of courts in post-colonial states? Based on a comparative analysis of high courts in Pakistan, Turkey and Egypt, I argue that the basis of power of effective courts is primarily located in constituencies of support in society, in spheres that lie beyond the influence of elites. The initial support for judicial power does come from elites, who establish courts and influence them for the protection of their privileges. Courts will continue to perform this function, unless they have access to an alternative source of power, which is to be found in public support. When effective, societal support may countervail the influence power elites have over courts. High courts in Pakistan and Egypt have at various times been effective, based on such societal support. The Turkish judiciary, by contrast, does not have a similar constituency in the public, and has instead supported the interests of political elites.

Societal support for judicial empowerment, I argue, can be effectively constructed through legal mobilization, defined as the publically faced activities of the legal profession. A precondition for effective legal mobilization is the embeddedness of the profession in society and politics, which, in postcolonial settings, depends on the nature of the political context during the formative years of the profession’s development. Through comparative historical analysis, I show how the leading role of the profession in decolonization contributed to embeddedness in Pakistan and Egypt. By contrast, the Turkish profession was on the receiving end of a restructuration process initiated by powerful military and bureaucratic state elites. Further, mobilization potential also depends on professional autonomy and on the nature of the public sphere.