Hayward, Emma

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  • Publication
    States And Group Rights: Legal Pluralism And The Decentralization Of Judicial Power
    (2019-01-01) Hayward, Emma
    When do states decentralize judicial power to ethnic and religious minority groups? This dissertation presents a theory to explain why states are willing to undertake significant transfers of power by lending their support to ascriptive, group-based law. It begins with a literature review of scholarship in comparative politics and public law, both of which argue, for different reasons, that because the judiciary is vital to the state’s coercive apparatus, property rights regime, and governing functions, we should not expect states to decentralize judicial power. Yet over half of the world’s states choose to officially engage with legal pluralism by delegating power to group-based law; so the remainder of this work builds a theory to explain under what conditions states devolve or share judicial power with ethnic or religious minority groups, and what accounts for the variation in state approaches to judicial decentralization. To do this, it uses process tracing methods and an institutional choice approach. It offers a test of this theory through three full case studies and three shadow cases: Lebanon, Egypt, and Tanzania (full cases); and the United Kingdom, France, and Malawi (shadow cases). The data that it draws upon consists of 21 months of fieldwork in all 6 countries in which the author conducted approximately 450 interviews, as well as local newspapers, archives, and secondary source materials. Using this data, the dissertation creates a typology that maps the concept of judicial decentralization according to two characteristics: the unity or plurality of the national court structure and the state’s legal doctrine, with a resulting six types of judicial decentralization. Through a study of one case of each type, it finds that judicial decentralization is in significant measure the outcome of bargaining between state leaders and minority group elites, in which the capacities of the state’s leaders and the capacities of group elites, both shaped by multiple factors, are decisive in determining the degree of decentralization. It concludes with a summary of findings, sample court cases from each case study country, and suggestions as to possible avenues for further research.