As goes the judiciary, so goes the country.
No matter the form of government, a professionally competent, politically independent and powerful judiciary acting with integrity in upholding the rule of law and protecting human and political rights is essential—in some circumstances, even key— to achieving public order, social harmony, economic development, and political stability.
Those with interest in achieving such outcomes—outcomes essential to a context conducive to the eventual emergence of democracy—would do well to recognize the central role judiciaries play or must play as a means of achieving those ends, and provide commensurate support to both domestic and international efforts to build or strengthen such judiciaries.
Those with political perspectives tend strongly to look to political institutions, processes, and activity as the means of achieving desired political ends. Those with economic perspectives tend strongly to look to economic institutions, processes, and activities to achieve desired economic ends. Those with societal perspectives tend to look to civil society organizations and religious institutions to achieve desired societal ends. But, in one way or another, sooner or later, all roads lead to the judiciary.
The judiciary is the primary mediating institution between people in conflict, and between the people and their government. A professionally competent and politically independent judiciary holds the people accountable to each other, and holds the government accountable to the people.
Judiciaries Legitimize or Delegitimize Government Actions—and Even Governments
Powerful judiciaries such as in Egypt have both the role and power to legitimize or delegitimize government actions, and even the government itself. In the struggle for primacy between competing social currents and political interests, judiciaries not only referee the contest, they ultimately determine the legal rules of engagement.
Consequently, the judiciary is the key institution with both the role and power to moderate the authoritarian/majoritarian impulses of other branches of government and enforce democratic rules of governance.
Judiciaries Shape Cultures
The law is far more than a set of rules, and judges are far more than legal referees. Laws embody values, and judges give them life and power.
Professionally and intellectually competent judges demonstrate and articulate the reasonable and responsible application of those values in real-life factual scenarios. In the end, the law is what judges say it is.
In the process, judges shape social, economic, political, and sometimes even religious cultures. Judiciaries bring order and rationality to an otherwise chaotic and irrational world.
In deciding disputes, competent judges of integrity engage in a structured and principled process of critical thinking and analytical reasoning. Properly conducted judicial proceedings and judgments demonstrate and therefore teach how to search for truth, critically weigh evidence, sort out the relevant from the irrelevant, analyze issues, and think about overarching principles of law, procedural and substantive fairness, and justice.
Such thinking and thinking skills are essential to the development of a culture of democracy, a culture in which democracy is a viable form of government. No political speech-making is even remotely comparable in value to judicial decision-making in teaching and transmitting such thinking and thinking skills, especially when that judicial decision-making is dramatically showcased in controversial and therefore highly publicized cases and ensuing appeals.
Judiciaries Can Produce or Destroy Social Order and Political/Economic Stability
Democracy only works well and endures in a culture in which most governance is internal rather than external, in which most people most of the time voluntarily govern themselves and engage in good behavior toward and on behalf of others without the need for constant external monitoring and coercive government control.
Such values of self-control and self-governance are best taught and transmitted by families, religious institutions, and judiciaries that fairly enforce laws that the people view as just.
Conversely, unjust laws or injustices perpetrated by the judiciary or government produce social unrest and political instability. The greater and more widespread the injustices, the greater and more widespread the unrest, disorder, and instability.
Therefore, one of the most effective means of achieving widespread social harmony and political stability is to enact laws that the people widely view as being just and to enforce those laws fairly through judiciaries that deliver what the people widely view as justice for all, not only for some favored groups or interests.
Judiciaries Build the Foundation Upon Which Democracy is Built
Democracy is not so much about harnessing the power of human nature as it is about harnessing the power of humanity. A common sense of humanity, of the good of the one being inextricably linked to the good of all, is the foundation upon which democracy is built.
Democracy is far more than the free and fair election of leaders, more than majority rule. Majoritarianism—the winner-takes-all rule of majorities over minorities—is a form of autocracy. Democracy protects the rights and interests of all, including minorities.
In a democracy, political leaders are selected and legislative decisions are made on the basis of majority vote. Consequently, by nature the political branches of government are strongly inclined toward majoritarianism. Only the judicial branch of government has the role of protecting the fundamental rights of all the people, including minorities.
Strengthen the Judiciary, Strengthen the Prospects for Democracy
In any country, especially in a country with a history and political culture of autocratic government, the greater the independence and professionalism of the judiciary, the greater the prospects for democracy. Justice and the rule of law are the bedrock upon which a democracy is built, and the judiciary is the guardian of justice and the rule of law.
One of the surest and most cost-effective means of building democracy, therefore, is to elevate the professional capacities and performance of a country's judiciary.
Building a Culture of Democracy in the Arab Middle East
In the West, a culture of democracy emerged from centuries of thought and struggle in which—as stated in the Preamble to the Constitution of the United States—the interest of personal liberty was considered to be at least as important as the companion interests of national unity and security. Not so in the cultures of Egypt and the other predominantly Muslim countries of the Arab Middle East, in which the interest of personal liberty has traditionally been considered to be secondary to the overarching community interests in public order and social harmony.
Does that mean the prospects for democracy are dead in Egypt and other countries of the Arab Middle East? Not at all. It does mean, however, that democracy with its emphasis on individual rights and liberties is unlikely to emerge there if democracy is regarded as being inherently disorderly and disruptive of national unity and community harmony. Democracy is, after all, sometimes messy, as current events in the United States demonstrate.
At the same time, in the context of modernity it is also true that coercive methods of imposing order and achieving national unity are not working out so well for the government of Egypt, and are unlikely to fare better or for long in other countries of the Arab Middle East. The challenge for those countries is to find more effective, non-coercive means of achieving the ends of public order and national unity.
As it turns out, just as in the United States and other Western countries, the most effective non-coercive means of achieving public order and national unity is through the just administration of the rule of law through professionally competent and sufficiently independent judiciaries enforcing constitutions enshrining democratic values, even if the governments enacting or formed by adoption of such constitutions are not fully democratic.
Egypt—the strategic and cultural center of gravity of the Arab Middle East—has such a constitution and judiciary. Consequently, despite the current turmoil, in the long run Egypt's judiciary presents the best and most realistic hope for both achieving public order and cultivating a culture of democratic values, thus laying the foundation for the eventual emergence of democracy in Egypt and elsewhere in the region.
At present, due to the injudicious rulings of some lower-level judges who enter mass convictions and who approve the use of long-term detention as a means of reversing the presumption of innocence and avoiding the need for trials requiring individualized proof of guilt, the Egyptian judiciary is generally vilified in the sensationalist and selectively negative narrative dominating popular (and highly influential) news media and even much current academic discourse. This, despite the fact that Egypt’s three supreme courts are fairly consistent in holding the line on the rule of law and protecting the democratic values enshrined in Egypt’s constitution, including consistently reversing injudicious lower court judgments in cases spanning the political spectrum. Even at the trial level, just as there have been several widely reported mass convictions, there have also been several under-reported mass acquittals. (For more, see the links on the Egypt Justice Project's homepage.)
In contrast to the current selectively negative narrative, prior to the 2011 revolution, Egypt’s surprisingly independent and assertive judiciary had gained recognition among scholars, political opposition figures, and many in the NGO community for strength and activism in defense of democratic values and political rights. What changed after the 2011 revolution, particularly after the 2013 removal of President Mohamed Morsi from office, was not so much the judiciary itself as the response of many judges to institutional attacks and national security threats, both real and perceived. (For more, see the Middle East Institute policy paper written by the project director of the Egypt Justice Project, David Risley.)
In the long run, if public order and political stability are to emerge in Egypt, it will be because its judiciary shepherded the country and its government in that direction by enforcing and protecting the human and political rights enshrined in the country's constitution. As that happens, some of which may come sooner rather than later, the judiciary is reasonably likely to announce constitutional rulings that will materially alter Egypt’s political landscape. For more on that subject, see the previous post on this website: "Constitutional Earthquakes are Coming."
As goes the judiciary, so goes the country.