Document Type

Essay

Degree Name

Master of Laws

Abstract

This article examines the conditions under which constitutional courts are able to resist executive attempts at institutional capture during periods of democratic erosion. Instead of concentrating on the mechanisms through which courts are attacked, it focuses on how courts effectively behave in the long term when operating under sustained political pressure. The central claim is that judicial resistance cannot be explained solely by formal institutional design or by a general commitment to constitutional principles. It depends on the interaction of three variables: judicial replaceability, external support, and enforcement capacity.

The article develops a typology of judicial responses to executive aggrandizement, distinguishing among ceremonial role, strategic adjustment, symbolic resistance, and assertive resistance. These categories are not treated as fixed institutional roles, but as outcomes of strategic choices made by courts facing different configurations of political constraint. External support and enforcement capacity are understood as context-dependent variables. In periods of institutional conflict, support does not simply fluctuate in response to individual decisions; it reflects broader political alignments regarding the constitutional order.

The comparative analysis shows that courts are more likely to sustain assertive resistance when low replaceability is combined with sustained external support and prior enforcement capacity, whereas high replaceability and weak support tend to produce either symbolic or ceremonial outcomes.

The argument is illustrated through a comparative analysis of the United States, Brazil, Turkey, and Venezuela. The cases show how differences in political context and institutional structure shape the capacity of courts to maintain autonomy and impose constraints on executive power. By treating judicial resistance as a graded and strategic phenomenon, the article offers a framework for understanding when courts are able to act as effective limits on executive authority.

Disciplines

Comparative and Foreign Law | Constitutional Law | Law

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