Author Interview: The Alchemists: Questioning Our Faith in Courts as Democracy-Builders

Tom Gerald Daly

The Alchemists: Questioning Our Faith in Courts as Democracy-Builders

Dr Tom Gerald Daly gives us an insight into his recently published book The Alchemists: Questioning Our Faith in Courts as Democracy-Builders(Cambridge University Press, 2017). Dr Daly is a MLS fellow at Melbourne Law School, Co-Convenor of the Constitution Transformation Network (ConTransNet) and Associate Director of the Edinburgh Centre for Constitutional Law at Edinburgh Law School.

Tell us a little bit about the book

The Alchemists presents a searching critique of excessive reliance on courts as ‘democracy builders’ in states emerging from authoritarian rule. This court obsession has developed over the seven decades since the end of World War II, but has become a truly global phenomenon since 1989. The book takes a broad comparative, historical and theoretical tack to present a coherent contrarian voice against this growing trend toward ever greater faith in courts as engines of successful democratisation. But I would emphasise that it is not an anti-court polemic. It simply seeks to identify whether the grander claims made for courts’ capacities as democracy-builders are supported by the evidence, and to identify where courts’ strengths truly lie in this task.

The book addresses a number of key gaps in the literature. It investigates the concept of democratisation in depth and elaborates a conceptual framework for understanding courts’ roles as democracy-builders. It addresses a stark domestic/international law divide by analysing both constitutional courts and regional human rights courts and their relationship as democracy-builders. It provides detailed analysis of the understudied Brazilian context as the central case-study, placing it in historical, regional, and inter-regional context. It also maps and provides an extended critique of existing normative arguments for courts as engines of democratisation. The book ends with discussion of how we might begin to rebalance democracy-building models away from the existing global court-obsessed model.

What inspired you to take up this project?

A range of factors inspired me to take up the project, but a key factor was working in the Supreme Court of Ireland for over six years, during which time I got an ‘insider’ view of the limits of courts and adjudication. Representing the Supreme Court on the Venice Commission’s Joint Council on Constitutional Justice from 2008-2011 (which provides a forum for information exchange between constitutional courts across the 47 Council of Europe and 14 non-European states) provided me with in-depth knowledge of the serious challenges facing courts in young democracies in carrying out their mandates and shoring up the democratic system. Brazil joined the Venice Commission during my tenure, and diametrically opposed judgments issued in 2010 by the Brazilian Supreme Court and the Inter-American Court of Human Rights on the validity of Brazil’s Amnesty Law of 1979 piqued my interest further, raising the central question addressed in the book: why have courts become such central actors in post-authoritarian democratic states?

Once I began looking into this question, I quickly realised that there is a raft of excellent scholarship on this subject, but no systematic global study of the question. My aim was not only to produce an academically rigorous analysis that would bring light and clarity to how we perceive courts as democracy-builders, but one that would also be of practical use to policymakers. My focus on the world of policy as well as academia reflects my own work as a consultant as well as an academic: I have worked on issues such as judicial reform with organisations including the Council of Europe, the EU, International IDEA, and, most recently, the African Union.

Whose work was influential on you throughout the course of the project?

Anyone looking at the bibliography for the book will see that I read widely in writing it. Well-known names in the research area of courts and democracy had a strong influence, including Kim Lane Scheppele, Roberto Gargarella, Tom Ginsburg, Pip Nicholson, Sam Issacharoff, Wojciech Sadurski, Alexandra Huneeus, Mikael Rask Madsen, Neil Walker, Ros Dixon, Denis Galligan, David Landau, Nico Krisch and Theunis Roux – too many to mention! Christine Bell and Stephen Tierney (who were my Ph.D supervisors for the thesis that became the book) had a decisive influence, informing the transitional justice dimensions and political constitutionalist strains of thought in the book in particular (despite Stephen’s efforts I never quite became a political constitutionalist, however! I am perhaps a ‘restrained’ or ‘realist’ legal constitutionalist). Brazilian scholars had a key influence, including Conrado Hübner Mendes, Virgílio Afonso da Silva, Oscar Vilhena Vieira and Marcelo Torelly. I was also influenced by a variety of leading scholars who are perhaps not as well known in the Anglosphere, mainly because much of their work is in non-English languages, such as the Italian legal philosopher Luigi Ferrajoli. In addition, some scholars influenced my thinking, but are not cited much (or at all!) in the book, such as my Melbourne Law School colleague Cheryl Saunders.

What challenges did you face in writing the book?

The book was a bit of a struggle to write, for many reasons. One was getting a handle on a very large literature, which spans multiple research areas and which spans across multiple world regions. Second was the anxiety provoked by straddling two disciplines (law and political science) as well as constitutional law and international law: there is always the concern that purists will attack the finished product as an academic chimera. Opting for Brazil as the central case-study brought a suite of challenges: gaining adequate facility in Portuguese; reading and translating Brazilian Supreme Court judgments (which even Brazilian scholars can find difficult to understand!); and getting an overall sense of how law and politics work in a state very different to my home country (Ireland). Practical difficulties included simply getting my hands on Brazilian texts, organising research visits to Brazil, and funding time-limits, which meant that the initial thesis was written in just two years and ten months. As with anyone who has written a book, there are many moments where you question the originality, thrust and validity of the entire project. Thankfully, I had many colleagues, friends and family to call on when the going got tough. Research stays at the Centre for International Courts (iCourts) in Copenhagen and Trinity College Dublin made the final write-up a pleasant experience.

What do you hope to see as the book’s contribution to academic discourse and to constitutional or public law more broadly?

The central contribution of the book is to voice strong concern about the increasingly high expectations we place on courts to act as guardians and engines of young democracies. This is not merely an academic issue: placing excessive faith in courts can have seriously negative effects on the project to build democracy in a state that has suffered authoritarian rule, and the book points to various states in which excessively judicialised democratisation projects have failed or are faltering (think Hungary, for example). It does seem that courts in young democracies may need, at times, to take a more robust approach than courts in ‘mature’ democracies where political actors show insufficient respect for norms of democratic government and the people may be unschooled in the wielding of democratic power. However, we seriously need to re-think the tendency to load courts with an impossible burden to transform the state and engage in governance. This approach is undemocratic, in the sense that it diminishes the potential for representative organs of government and the people to build their own capacity to act within the democratic system. It is unrealistic, in expecting all courts to be capable of adjudication that combines high technical quality, political nous, and strategic insight. It is also unfair to courts themselves, as the higher the expectations we place on them, the more we are virtually setting them up to fail. In a practical sense, I want anyone who reads the book to catch themselves when suggesting courts as the solution to different democracy-building problems, and ask: is there evidence to show that this will work?

What’s next?

My follow-on research project, which I am working on as a Fellow at Melbourne Law School, is a sort of flip-side to The Alchemists. Where The Alchemists addressed faith in courts as democracy-builders, this new project addresses faith in public law more widely as a protection against ‘democratic decay’, which I define as the incremental degradation of the structures and substance of liberal constitutional democracy. Anyone interested can read a recently published chapter on ‘Democratic Decay in 2016’ in International Idea’s Annual Review of Constitution-Building, my serial 2017 column on democratic decay in the I-CONnect blog (International Journal of Constitutional Law), or conference papers on my Academia profile.

Of course, I also continue to explore the issues raised in The Alchemists. In the past year I have produced a policy paper for the Centre for Policy Alternatives (CPA) on the potential of a constitutional court for Sri Lanka, written on the relationship between the Inter-American Court of Human Rights and domestic courts in Latin America (forthcoming), and completed a consultancy to design an African Judicial Network to link the African Court on Human and Peoples’ Rights, courts of regional economic communities, and highest domestic courts across the African Union (AU).

To find out more about this book or to purchase The Alchemists click here.