Guides and Guardians: Judiciaries in Times of Transition
Ebrahim Afsah, “Guides and Guardians: Judiciaries in Times of Transition,” in: Judges as Guardians of Constitutionalism and Human Rights, ed. by Martin Scheinin, Helle Krunke, and Marina Aksenova (London: Edward Elgar, 2016).
22 Pages Posted: 8 Dec 2015
Date Written: October 4, 2015
The decades since the end of the Cold War have seen a remarkable convergence of global thinking about the role of law in development and during post-conflict transition. There now exists a surprising lack of fundamental disagreement on the desirability of the rule of law and the particular set of institutions deemed necessary for its maintenance, not the least of which are independent judiciaries. Indeed, the importance of the rule of law and of effective governance institutions as the preconditions for economic prosperity and political stability have become so universally accepted that at times they are presented as received wisdom no longer needing approbatory argument.
The resulting academic discourse conceives of judiciaries primarily as guardians of an existing constitutional order, their task being to define and develop this order and use it to protect individual rights by measuring state action against it. In a transitional process, however, the very creation of a new constitutional order will be necessary, with diverse political actors severely contesting its most elementary parts, and often against a background of exceedingly weak governmental ability.
Under these conditions, the judiciary, especially at the highest level, cannot content itself to measure state action against an abstract yardstick. Instead, judiciaries must also assume the role of guides offering direction and reassurance to hostile societal actors about the transition process as such.
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