Foundations of Juristocracy

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Differences in institutional architecture and political culture notwithstanding, constitutional democracies worldwide are increasingly relying on courts for their maintenance, most notably in regards to the settlement of conflicts involving fundamental rights and values. This dissertation explores the foundations of juristocracy and argues that its intellectual roots lies in the proliferation of a depoliticized understanding of democracy that emerged as a reaction to the experience of totalitarianism. By examining the historical, institutional, and ethical shifts that shaped constitutional development after World War II, it reveals how contemporary democracies have accepted the diagnosis that the rise of totalitarian and authoritarian regimes was caused by an inherent flaw within democracy, particularly its inability to counteract subversive movements that harness legitimacy from plebiscitarian methods and mass mobilization. The anxiety towards unconstrained collectivities and majoritarian power has led intellectuals in both the United States and Europe to re-conceptualize democracy as the distribution of fundamental rights, as opposed to the distribution of self-governing power amongst citizens to collectively determine public affairs. As a result of this emerging consensus, the participatory dimension of democratic politics was attenuated in the name of preserving the idea of democracy safeguarded through judicial or quasi-judicial means. Although this conceptual shift has been obscured by its use of familiar jargons from early modern political thought, this dissertation offers a critical inquiry into understanding how the core premises of constitutional democracy has been historically reconstructed in a way that informs the rise of juristocracy across different parts of the world.