Courts as Agents of Change

Abstract

Abstract This chapter investigates the comparative role of courts as agents of social change. In the late twentieth and early twenty-first centuries, courts around the world increasingly made decisions ordering social change. Focusing on courts in democratic political systems, it examines that factors that lead courts to issue ‘progressive’ judicial decisions that protect and further the rights of large groups of historically disadvantaged people such as the poor, ethnic and racial minorities, women, gay men and lesbians, immigrants, political dissidents, etc. It identifies four characteristics of judges and legal systems that influence judges’ ability to act. These include judicial independence, the rules and procedures governing jurisdiction and access to courts, the willingness of judges to act, and the breath of rights, both constitutional and statutory, available to judges. It highlights six political and social factors that influence progressive judicial decision-making: history and legitimacy, public opinion, government inaction, allies and support structures, resource constraints and expertise, and the importance of strategic thinking in judicial decision-making. The chapter suggests that judicial decision-making designed to produce progressive social change is highly contextual, varying from country to country. It also suggests that scholars need a reliable baseline of in-depth, focused, country studies, both qualitative and quantitative. A compilation of such studies will provide a strong foundation for comparative analysis.