The light and the dark side of judicial resistance

Abstract

How can courts resist political attacks? Despite the rich empirical studies of attacks on courts, we lack better understanding of how judges react to these challenges. Little or no attention has been paid to the theoretical aspects of judicial resistance; the structural, personal or socio-economical motives of judges, or the dynamics between the resistance, democratic resilience and the rule of law. This article draws a novel concept map and suggests that the future scholarship should focus on three dimensions of judicial resistance. The first captures the variety of techniques available to judges who wish to avert, punish or invalidate an attack, whether they act individually or collectively and on-bench or off-bench. The second dimension zooms in on the motives for resistance, including the ability of judges to recognize an attack and see it as critical. It outlines factors that potentially form the cost-benefit analysis behind judges' decisions to resist. Finally, the third dimension prompts to look into the effects of resistance (the dark and the light side), it analyses the conformity of judicial resistance with or against the principle of the rule of law and suggest its repercussions on how the public trusts and understands the courts (long-term perspective).