Systems of government are critical for the functionality and agenda of the state, but depending on the type of governance it pursues, this can have a profound impact on the society, economics, and politics of that country. Federalism, practice in the United States, is know the co-governance of federal and local governments, promoting separation of powers. Meanwhile, juristocracy is a rare form of government that emphasizes the strength of the judiciary. This paper examines the concepts of federalism and juristocracy, evaluates their real-world applications and draws conclusions using critical worldview.
Federalism is considered an effective governance system for ruling large territories or complex societies. Federalism represents a compromise between centralized power and regional (state) power as a means to reconcile national and local interests. In federalism, there are levels of interconnected institutions meant to unify diverse territories and ensure governance effectiveness. The system is now viewed as not only a means of promoting security and stability, but allow for greater democratic participation with representation from diverse sets of populations. In federalism the governing power is split, while national laws take precedence along with the constitution, the subnational laws may differ. Federalism provides constitutional guarantees for some level of power and autonomy to sub-jurisdictions and preventing the overstepping of power from the federal government (Dickovick and Eastwood 2019, 191).
Juristocracy can be described as the form of government where the ruling elite make the strategic calculation to enhance the judiciary of the state with power by encoding certain principles as constitutional rights, most often to preserve and protect their power. By enhancing the judicial review, whenever the elites face threat from other elements and leaders that are economic or political in nature, they would be protected by the judiciary and largely removed from the public political debate (Dickovick and Eastwood 2019, 193). Juristocracy in itself is not necessarily a system of governance but a trend in existing forms of governance. It is part of the general pattern which seeks to transform courts in major political decision-makers in the so called “judicialization of ‘mega’ politics” (Hirschl 2004, 6). Courts have become a key battleground on addressing many political issues such as national security, macroeconomic policymaking, social issues, and electoral disputes, virtually everything can be justiciable and in most modern nations, both developed and developing, nothing falls beyond the purview of a judicial review.
Just like any political decision-making institution, courts privilege some groups, interests, and worldviews over others. Therefore, the prominent political actors would favor establishment of courts and subsequent institutional structures that are most beneficial to them (Hirschl 2004, 8). Judicial activism typical stems from a weak, decentralized, or chronically deadlocked political system, the more dysfunctional the system, the greater likelihood of juristocracy. A polity’s inability to deal with social or cultural rifts and facing stalemates in politics, erode the ability of the executive and legislative branch to govern, making the polity dependent on the decision-making capabilities of the constitutional courts.
It can be argued that the voluntary self-limitation of policy making from decision-making arenas to the court is prima facie, seemingly counter to the interests of these agents in power such as executives and legislatures. However, from a political perspective, it bears many benefits to shift the decision-making. First, it absolves them of any risk stemming from the politically charged decision-making, when it comes to courts, it is both out of the public eye and seldom receives heavy political criticism. Second, constitutional court judges are typically chosen by the ruling elite or legislature, rarely do judges face election. Therefore, in contemplation of highly charged political decisions, the courts as a combination of their members’ worldviews and ideological preferences, tend to lean towards certain prevalent worldviews and national meta-narratives, many of which match the interests of the influential elites (Hirschl 2004, 10).
It is evident that these political systems are drastically different but relate to each other in major ways. Federalism seeks to diversify power, especially from a national perspective, avoiding the concentration of power at the federal government. Meanwhile, juristocracy is seeking to concentrate power in one branch of the government while using it almost nefariously to achieve the elites’ objectives. The means of reaching outcomes differ between the two, where federalism promotes cooperation and negotiation on major issues with shared decision-making, juristocracy seeks to utilize subjective interpretation of the constitution while leaving the decision to a small group of judges at the service of a group of ruling elites or adhering to similar ideology. Federalism at its core is about taking responsibility and promoting the democratic process while juristocracy takes an established principle of judicial review that is meant to serve as a system of checks and balances is being politically manipulated.
At the same time, they are closely interconnected. After all, the federalist form of government involves courts as well. With federalism, the state and federal governments have their own court systems, but the political charged questions go the top constitutional court of the nation which is at the federal level. Due to the nature of federalism, it is a prime form of governance for juristocracy to emerge, as seen in the example of the United States, where the Supreme Court has become essential in resolving issues and has become a major political battleground to appoint judges in recent years. Federalism presents multiple scenarios of dysfunction either in the interests of the various state government, the fight between state and federal level governments over mandates of power, and finally leading to stalemate legislature at the federal level. Federalism and juristocracy are associated because they corelated and build off one another.
The most prominent example of federalism is the United States. There is a constitutionally set division of power between states and the federal governments since its immediate founding of the country. The Tenth Amendment to the US Constitution sets the guidelines for federalism for the country, including outlining the powers for the states and the government. Some of the responsibilities match such as collecting taxes, establishing courts and laws, regulating commerce and trade. However, the state does it at the more local level (small roads vs. highways, national taxes vs. state income tax), while also focusing on various social and small-scale aspects such as education, legal age for various activities, licenses. The federal government deals with matters of national importance such diplomacy, trade, and security while also driving national policy, which the states can enforce or modify to fit the state needs without violation of the federal guidelines. One example is the EPA placing strict air restrictions to limit pollution, but the state of California adopted the policy with a tougher regulation for its state individually.
Russia is an example of juristocracy. The judicial system has little independence and is closely associated with the ruling political elite at virtually every level of the courts. Judges at the higher levels in both the states and federally are typically political appointees. The Constitutional Court of the Russian Federation, the country’s highest court consists of 19 judges nominated for 12 years, selected by the President and confirmed by the Federation Council. Given the virtually unchanging nature of the ruling elite under President Putin in the last 22 years of his autocrat rule, the Courts are essentially a cog in the system to reaffirm his power and eliminate any potential legal challenges, which may stem from the opposition or justifying the ‘constitutionality’ of his abuses of power. It is known historically that the constitutional courts in Russia can only push so far against politically dominant forces, before being stopped either by new political appointees or a limitation of its jurisdiction (Goldstein, 2004, p. 628).
The idea of federalism is arguably dating back to the Old Testament, describing the two different relationships between God and his people and then the governmental relationship between the twelve tribes of Israel in a covenantal relationship. Regardless of its theological meaning, the political covenant indicates the idea of consent and constitutionalism when comes to human institutions. The organization of human affairs occurs in covenants, through mutually agreed upon, morally informed pacts. The word federal stems from the Latin ‘foedus’ which is a translation of the Hebrew word ‘brit’ meaning covenant. The covenant relationship through a biblical understanding could be best seen during the Protestant reformation in the 16th and 17th centuries (Elazar, 1999). They developed the federal theology which suggested that the world was organized based on the fundamental covenant between God and man, and then the subsidiary covenants among humans such as churches, communities, and others to achieve social, political, and theological purposes.
Federalism and juristocracy are both approaches of governance that exist within the current systems of government. Both evolved based on the political realities of their time. Despite being drastically differing, these reflect the concepts of political power distribution which affect the trajectory of whole nations.
Dickovick, J. Tyler, and Jonathan Eastwood. 2019. Comparative Politics (3rd ed.). New York, NY.: Oxford University Press Academic US.
Elazar, Daniel J. 1999. “Religious Diversity and Federalism.” Paper presented at International Conference on Federalism, Mont-Tremblant, Web.
Goldstein, Leslie Friedman. 2004. “From Democracy to Juristocracy.” Edited by Carlo Guarneri, Patrizia Pederzoli, Alec Stone Sweet, and Ran Hirschl. Law & Society Review 38 (3): 611–29. Web.
Hirschl, Ran. 2004. “‘Juristocracy’ – Political, Not Juridical.” The Good Society 13 (3): 6–11. Web.