“THE power of a judicial branch, or of religious authorities who are the custodians of the law, lies only in the legitimacy that they can confer on rulers and in the popular support they receive as protectors of a broad social consensus. Gregory VII could force Henry [IV] to come to Canossa, but he could not actually depose him as emperor,” writes Francis Fukuyama in The Origins of Political Order.
The judiciary has little coercive power to physically thwart excess by the executive. Nevertheless, even against an entrenched executive, there is one power which the judiciary retains. The power to deny the executive, which behaves in an ultra vires manner, the legitimacy it craves. This denial of legitimacy is nontrivial. Writing on the power of corporate groups to impose their will, Max Weber wrote in The Theory of Social and Economic Organisation that “Every such system attempts to establish and to cultivate the belief in its legitimacy”.
North Korea, Equatorial Guinea, Russia, Belarus and Azerbaijan are headed by Kim Jong Un, Teodoro Mbasogo, Vladimir Putin, Alexander Lukashenko and Ilham Aliyev respectively, who are all dictators. Yet all these states hold elections and have legislative bodies and heads of government who exercise executive power in accordance with their respective constitution. Alas, hardly any of these states can be said to harbour true democracy.
A recent paper published in the Journal of Democracy titled ‘How courts undermine democracy’ explains how courts grant to an excessive executive the legitimacy it craves, and perpetuate a cycle of ‘autocratic legalism’. The latter term refers to weaponisation of the law. Prof Kim Lane Scheppele in her essay Autocratic Legalism — published in the University of Chicago Law Review — argues that contemporary autocrats have mastered the use of legal and constitutional methods to weaken democratic institutions, consolidate power and do away with systems of checks and balances.
The courts can deny the executive the legitimacy it wants.
There is a ‘method to the madness’, and recognisable patterns, which enable the weaponisation of the law. Power is first captured through electoral or other means, and paves the way for filling the legislature with stalwarts or cronies. Once the legislature is controlled, it is employed to amend ordinary laws, as well as the constitution, so as to allow for what is called ‘courts capture’, ie, the courts are filled with compliant judges, and any judge who resists is sent home. Sometimes parallel or extraordinary courts, with jurisdiction over and above the existing ones, are established, to disturb and frustrate the legal hierarchy.
With resulting ‘courts capture’, the system of ‘checks and balances’ is effectively dismantled. The heads of constitutional bodies and independent state agencies, which regulate elections, prosecute white collar crime, and survey and indict persons involved in anti-state activities, are replaced with ‘political commissars’. The state’s prosecutorial powers are unleashed on political opponents, and dissenting voices are silenced through legal processes.
The ripples from this reorganisation of the state are so overwhelming that the bureaucracy either capitulates or is shuffled so as to sideline any officer who dares to raise his voice. The media is harnessed as an echo chamber, and thus, total control of the apparatuses of state is ensured.
The doctrine of ‘autocratic legalism’ has the potential to turn judges into instruments of the executive. “Could any court having a discretion in the matter, issue an enforceable writ on the 8, 9 or 10 October against the government that had been brought into existence by the proclamation of president Iskander Mirza?” asked chief justice Munir in his subsequent writings ruminating on ‘The state vs Dosso’ (1958), and cited it as a reason for legitimising the first coup d’état in Pakistan.
Justice Munir’s assessment of the enforceability of the writ, albeit accurate, was an utterly extra-legal consideration, and counterintuitive to his obligation to defend the constitution. The judicial acquiescence conferred legitimacy on a regime that was otherwise wanting.
Resistance by the Supreme Court would not have reined in the usurpers; instead, it would have resulted in the whole court being sent home. Nevertheless, such an act would have denied to the usurpers the legitimacy they crave for, and demonstrated the highest form of judicial sacrifice — seldom extolled — which is pronouncing an unenforceable judgement, even at the peril of giving up one’s exalted office.
Parallel or extraordinary courts, courts capture and amendments to the law and constitution to alter judicial hierarchy and electoral laws, concurrently, are ex-facie facets of ‘autocratic legalism’, and Pakistan ought to be circumspect.
The writer is a practising barrister.
Published in Dawn, September 22nd, 2026
