The Role of Courts in Rifted Democracies

Abstract

Independent courts are very central elements of the rule of law and democracy. At the same time, criticism of judicial performances may be legitimate and even justified. Courts are not elected powers. Their legitimacy stems from the fact that they are the ones who enforce the laws and protect the citizens from arbitrary power. But the function of making the laws is usually given to accountable elected legislatures. When courts appear to be imposing their own views, this may generate a weakening of their legitimacy in the eyes of those who do not share these values. The threat is especially string in tifted democrecies, where major interests and worldviews are underrepresented in the courts.