This article analyzes the role of constitutional courts in stabilizing new democracies as they emerge from authoritarianism. Relying on both contractual and strategic considerations, the article presents a picture of constitutional courts as mediating or “hedging” the transition to democracy by offering the prospect of further resistance to one-party domination that has doomed many new democracies. By potentially lending an institutional ally to the losers in the first period of government formation, constitutional court may aid in resisting the process in which the first election is a contest for who gets to assume the power of the state, and in which the first election also proves to be the last election. This analysis is applied to the work that courts have done in shoring the institutional structures of divided government in counties from Eastern Europe to South Africa, and including restored competitive democracies in South Korea and Mexico. The argument then turns to the jurisprudence which does and should follow from the role of courts in stabilizing the transition to democracy.
Source: New York University Public Law and Legal Theory Working Papers [via NELLCO Legal Scholarship Repository]
Download full pdf publication | Link to abstract at NELLCO
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