Oñati Socio-Legal Series (ISSN: 2079-5971)
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Judges under stress: Legal complexes and a sociology of hope
OÑATI SOCIO-LEGAL SERIES FORTHCOMING: JUDGES UNDER STRESS
DOI LINK: HTTPS://DOI.ORG/10.35295/OSLS.IISL.1895
RECEIVED 24 OCTOBER 2023, ACCEPTED 19 FEBRUARY 2024, FIRST-ONLINE PUBLISHED 13 MARCH 2024
TERENCE C. HALLIDAY ∗
Abstract
How does the sociology of legal complexes contribute to understanding of judges
under stress in the shaping of legal-liberal political orders? First, the article proposes six
distinctive meanings of judges and judiciaries. Second, it identifies stressors that erode
the legitimacy and efficacy of different categories of judges. Third, illustrated by
scholarship on Egypt, Pakistan, Taiwan and Hong Kong, it proposes that a theory of
domestic and international legal complexes sharpens explanations of robustness of
judges’ ability to cope with stress. Fourth, it argues that evidence on legal complexes can
move scholarship on judges under stress from static frameworks of social structures to
the dynamics of a sociology of hope where structural resourcefulness and repertoires of
action multiple the opportunities for resisting stress. Fifth, after identifying
contingencies that can relieve stress on judges and judiciaries, the paper concludes
points to a redemptive irony of repression by authoritarian rulers.
Key words
Lawyers; judges; legal complex; political liberalism; civil society
Resumen
¿Cómo contribuye la sociología de los complejos jurídicos a la comprensión de
los jueces sometidos a tensión en la conformación de órdenes políticos jurídico-liberales?
En primer lugar, el artículo propone seis significados distintivos de los jueces y los
poderes judiciales. En segundo lugar, identifica los factores de estrés que erosionan la
legitimidad y la eficacia de diferentes categorías de jueces. En tercer lugar, ilustrado con
estudios sobre Egipto, Pakistán, Taiwán y Hong Kong, propone que una teoría de los
For their invitation and insights, I express my appreciation to the organizers, Hans Petter Graver and Peter
Curos, and participants at the conference on Judges Under Stress – The Breaking Point of Judicial Institutions
(Faculty of Law, University of Oslo, 17–18th November 2022), where an earlier version of this paper was
presented. I thank an anonymous reviewer of this article for most constructive comments that much
improved the paper, and for editorial advice from Leire Kortabarria.
∗ Terence Halliday is Research Professor Emeritus, American Bar Foundation; Honorary Professor, School
of Regulation and Global Governance, Australian National University; Adjunct Professor of Sociology,
Northwestern University, USA. Email address:
[email protected]
1
Halliday
complejos jurídicos nacionales e internacionales agudiza las explicaciones sobre la
solidez de la capacidad de los jueces para hacer frente al estrés. En cuarto lugar, se
sostiene que las pruebas sobre los complejos jurídicos pueden hacer que los estudios
sobre los jueces sometidos a estrés pasen de los marcos estáticos de las estructuras
sociales a la dinámica de una sociología de la esperanza en la que los recursos
estructurales y los repertorios de acción multiplican las oportunidades de resistir al
estrés. En quinto lugar, tras identificar las contingencias que pueden aliviar el estrés de
los jueces y las judicaturas, el artículo termina señalando una ironía redentora de la
represión por parte de los gobernantes autoritarios.
Palabras clave
Abogados; jueces; complejo jurídico; liberalismo político; sociedad civil
2
Judges under stress…
Table of contents
1. Introduction ............................................................................................................................ 4
2. Judges ....................................................................................................................................... 5
2.1. Singular persons............................................................................................................ 8
2.2. Conglomerations ........................................................................................................... 8
2.3. An institution ................................................................................................................ 9
2.4. A collective actor ........................................................................................................... 9
2.5. As cases ........................................................................................................................ 10
2.6. As symbolic figures .................................................................................................... 10
3. Stressors ................................................................................................................................. 10
4. Legal complexes ................................................................................................................... 11
4.1. A Domestic Legal Complex ....................................................................................... 12
4.2. An international legal complex ................................................................................. 14
4.3. A toolkit for analysis .................................................................................................. 16
5. A sociology of hope.............................................................................................................. 16
5.1. Structural resourcefulness ......................................................................................... 17
5.2. Repertoires of action ................................................................................................... 18
6. Contingencies........................................................................................................................ 20
6.1. Agency in constructing a legal complex .................................................................. 20
6.2. Building a moral economy between the bench and bar ........................................ 21
6.3. Activating interdependencies with civil society .................................................... 21
6.4. Acting as spokespersons for publics ........................................................................ 22
7. Conclusion: The redemptive irony of repression ............................................................ 22
References .................................................................................................................................. 23
3
Halliday
1. Introduction
A fundamental issue of our times is the situation of the judiciary within the institutional
framework of the state. What role does it play in the constitution of legal and political
orders, most particularly, in the rise or fall of liberal-legal orders? These questions come
sharply into focus when we narrow our concern to judges under stress (Graver and
Čuroš 2021).
In this article I approach judiciaries under stress from the viewpoint of legal complexes,
namely, the complex of practising legal professionals at a given time and place who may
be activated on a given issue—private lawyers, judges, lawyer civil servants,
prosecutors, legal academics, military lawyers (Karpik and Halliday 2011). Indeed, I
have gone so far as to claim elsewhere that consequential courts simply cannot be
understood, whether in abstract research or everyday practices, without understanding
the sociology and politics of legal complexes (Halliday 2013). I advance here a similar
claim for understandings of judiciaries under stress.
I begin by asking two seemingly ingenuous questions: what is our object of inquiry when
we speak of “judges” and how shall we understand “stress”? For me these questions set
begin a conceptual and theoretical journey to better comprehend social structures and
dynamics that are integral to the good political society. My point of view is informed by
scholarship on legal professions and political liberalism over the past twenty-five years
and the writings of French sociologist Lucien Karpik, 1 Berkeley legal academic Malcolm
Feeley, 2 and Terence Halliday in their collaborations with the more than thirty
interdisciplinary scholars who have contributed to the body of work on legal complexes
in the rise and fall of a distinctive form of political liberalism across the world since the
17th century (Halliday 2023, Halliday and Karpik 1997, Halliday et al. 2007a, 2012, Feeley
and Langford 2021a). These separate studies by country specialists point the way to a
new generation of research that might build multi-national quantitative models of legal
complexes and political liberalism.
In this article, nevertheless, I shall illustrate my considerations on judges under stress
with four examples: Egypt, Pakistan, Hong Kong and Taiwan. From 1970 to 2003 there
emerged a “rebirth” of an Egyptian legal complex as it sought to break out of the bonds
of a “profoundly illiberal political system” (Moustafa 2007a, 2007b). Between 2007 and
2009 Pakistan was the site of arguably the most extraordinary mobilization in modern
times of lawyers and a legal complex for the defense of judicial autonomy and integrity,
a mobilization that triggered regime change and opened a wider path to democracy and
constitutionalism (Aziz 2012, Ghias 2012, Munir 2012). In 2019, Beijing pressed a
National Security Law on Hong Kong, imposing a heavy hand of repression that brought
to a near halt the twenty years of remarkable contention by legal complexes and publics
for rule of law and independence of the judiciary (Tam 2013, Tai 2019, Liu et al. 2019,
Ming-sho 2020, Tai et al. 2020). By so doing, Beijing sought to preempt a similar startling
transition from an illiberal to a liberal political society that had dramatically taken place
Notable writings on legal professions in France include Karpik 1985, 1988, 1997, 1999.
See Feeley on judges, judiciaries and the legal complex in Feeley 2002, 2012, Feeley and Miyazawa 2007,
Feeley and Langford 2021b.
1
2
4
Judges under stress…
in Taiwan, a transformation in which legal complexes were manifestly instrumental
(Ginsburg 2007, Hsu 2021).
It is true these are radically different contexts, yet I will propose to you that they share
challenges in common—judiciaries under stress—and thinking with them as
counterpoints or variations on a theme may provide comparative insight for other
regions, not least Central and Eastern Europe, Latin America and North America. Here
I adopt the stance of Hans Petter Graver’s proposition that “instances of judicial
resistance and opposition to authoritarian regimes, and how such regimes react to
resistance are important topics for research. Insight into the conditions of opposition
may enhance the possibility of future opposition” (Graver 2018, 849). As we observe at
present, however, judges under stress have become immanent issues in long-standing
rule-of-law democracies where authoritarian and populist tendencies in politics turn
threatening forces into attacks on judiciaries and individual judges.
I proceed in four steps. First, I ask what it is that we mean when we speak of “judges”?
Second, what “stressors” threaten particular categories of judges and judiciaries? Third,
how do legal complexes come into play when the viability of robust, resilient and
adaptive judiciaries come under threat? And, finally, how can we move from the cold
frameworks of social structure and dynamics to the warmth of a sociology of hope?
2. Judges
Who are judges? On its face, this question seems bizarre, even misguided. Nevertheless,
when we take a long historical and comparative view, this question compels us to think
conceptually about the objects of pressure and stress. By designating more precisely the
varieties of forms of judges, judicial collectivities and institutions, the better sense we
can make of scholarship on lawyers, legal complexes and the historical struggles for a
moderate state, in particular, and political liberalism, in general. For purposes of this
conference, how we answer will inform where stress is directed and experienced, what
stressors are associated with what variants of judges, and what capacities legal
complexes can exercise to counter stress.
5
Halliday
TABLE 1
Judges as…
A
B
Singular person
Conglomerations
Attributes
The notable judge
o Exuded charisma
o Attributed charisma
Collection of persons, a
gathering
Stressors
Intimidation & Attack:
o Personal
o Reputational
o Situational
o Physical
o
o
o
C
Emergent social
organization
A relational collectivity
An association of likeminded judges
Whole greater than the
sum of its parts
Formal association
Voluntary association
o
o
o
o
o
6
Repertoires of Contention by
Legal Complexes
Creating, finding heroes
Awards, recognitions
Keeping alive memories of
notable exemplars
Demonstrations & marches
Media coverage
International appeals
Boycotts
Atomizing judges
Mechanisms of
disassociation
Eroding a common
professional identity &
values
Forging collective action
e.g., events – judges gathering
on steps of a high court
Groups monitored,
threatened, dissolved
Leaders threatened,
detained, imprisoned
Associations manipulated
from outside, e.g., voting,
factionalization
Insurgent networks and
groups
Counter Quisling
associations created
Strong associational leadership
Association hosts conferences,
events
Association speaks to publics
Judges in an explicitly labeled
group or association
Judges Association (Egypt)
Conferences
Publications
Comparative/
Historical Examples of
Legal Complex Action
Pakistan: Chief Judge
Chaudhry defense by LC,
2007–2009
Pakistan Long Marches
Pakistan: US tour
Hong Kong: silent marches
of private lawyers on behalf
of rule of law, independent
judiciary
Pakistan: Supreme Court
protests
Egypt: challenging attacks
on legal syndicates
Taiwan: forming alliances
of private lawyers, judges,
prosecutors, 1980s, 1990s
Hong Kong: LC joining
with civil society to create
legal defense funds for
detained protesters
Judges under stress…
D
The Judicial
Institution
State-specified . . .
“court system”
“Constitutional Court”
“Supreme Court”
Courts of first instance
Hierarchically organized,
differentiated
Principally comprised or
staffed or led by legallytrained judges
E
Cases
Judicial decisions
Judicial opinions
Outside attacks:
o Appointment of judges/court
packing
o Manipulation of resources
o Assaults by other branches
of the state, e.g.,
politicization
o Dual state re-structuring
o Security law, courts
Inside stressors:
o Marginalization, demotion
dismissal, forced retirement of
judges
o Assignment of cases away
from suspect judges
o
o
o
F
Symbolic
An ideal personified by
the title of “judge”
A collective
representation of justice
Meaning attributed to the
judge’s role and the
judicial institution
o
o
o
o
Mobilize legal complex
resistance
Mobilize civil society
Initiate constitutional cases
Invoke constitutional norms
Invoke international law &
standards
Mobilize international legal
complex
Pakistan: 2007–2009
Lawyers’Movement
Hong Kong: mass public
marches with LC leadership
against repatriation of cases
to PRC
Publicize
Organize protests
Criticized, overturned by
higher courts
Party political attacks
Public outrage
Retired judge critiques
LC affirmations
Social media campaigns
Dilution & impugning of the
label/title/role (e.g., Judge
Zabludowska: “Is a judge a
“judge”? Or “citizens don’t
know if a person presiding
is a real judge”
Judiciary branded as a
“conquering power”
Judiciary attacked as a
“juristocracy” (Lukascz)
Judges construed as political
partisans
LC formulating ideals of
justice, independent
judiciaries, rule of law
LC educating publics on
merits of judicial neutrality
LC allying with media & civil
society to underscore public
interest in judicial ideals
Egypt: retired senior judge
opinion
Hong Kong: legal academic
accountability
Pakistan: visual images,
media coverage
Hong Kong: mass public
marches
Hong Kong: Bar
Association news releases;
defenses of judges &
decisions
Table 1. Categories of Judges, Stressors and Repertoires of Contention.
7
Halliday
Let me distinguish among six usages or manifestations of “judges.”
2.1. Singular persons
Here we identify single judges who exude Max Weber’s charismatic authority. A single
person emerges from the anonymity of a general category, from being one of a three- or
seven-person bench, from being more than a titular head, to become the recognizable
personification of an entire institution for good or ill. This person exemplifies the best or
worst of the judicial role and stands apart as a known name, face or voice. A potent
charismatic figure may radiate out, through media, and across other institutions and into
civil society and the public sphere. This person can become a figurehead, a moral leader,
a catalyst for resistance or change.
Consider Chief Justice Chaudhry of Pakistan (Ghias 2012). Long known within political
and legal circles for abetting a military takeover of government, his appointment as Chief
Justice in 2005 surprisingly opened up a stream of judgments from Pakistan’s Supreme
Court on construction safety, urban planning, price controls, privatization of public
enterprises, illegal detentions and missing persons, and the prospect of decisions on
whether President Musharraf could run for office while still holding the rank of general
in the army. Led by Chaudhry, the Supreme Court’s “expanding virtuous cycle of
judicial power and independence” not only engaged appreciative publics and expansive
media coverage but also generated a backlash from an increasingly distrustful and wary
political leadership.
Under threat, President Musharraf demanded on March 9, 2007, that Chaudhry resign.
Chaudhry refused. “For the first time in Pakistan’s history a chief justice stared a general
in the eye and did not blink.” 3 Two days later, as Chaudhry left his home for a Supreme
Judicial Council meeting, photo and video images flashed across Pakistan of the Chief
Justice being humiliated by a mere police officer. When Chaudhry sought to travel in his
official car, a police officer intervened, daring to place a police hand on the Chief Justice’s
head when he was pushed into a waiting police car. This electrifying image “became the
catalyst for summoning public opinion against the regime and mobilizing lawyers in
support of the chief justice.” (Ghias 2012, 357). At that moment began a two-year struggle
by a legal complex that led the nation in protest until Chaudhry was reinstated.
Consider a more diffuse charisma surrounding the two Turkish Constitutional Court
judges who remain imprisoned after Erdogan’s purges following a failed coup that
would have ejected Erdogan from power (Kurban 2022). Here it is not simply a single
name in a single episode but several individuals in a continuing sore on the body of
Turkey’s currently constricted constitutional order. Consider also Graver’s wider and
deeper historical aggregation of “heroic judges” (Graver 2024).
2.2. Conglomerations
Here we can observe a collection of individuals, bearing the same title, “judge,” who
have a diffuse identity in common, yet are amorphous, less than a collectivity, less than
an organization, less than a social movement. It is as if they were persons independently
answering a survey or sitting anonymously together in a gathering of their kind. This
3
8
Former speaker of the National Assembly, quoted by Ghias (2012, 356).
Judges under stress…
mass of individuals might be formed or mobilized or forged into a collectivity for a
cause, but at this historical moment lie uncoordinated. This manifestation of judges as a
pre-formation of an occupational collective agent likely represents a characterization of
judges in most places and most times.
Consider judges in China, especially those trained and appointed after 2000. During our
fieldwork on criminal defense lawyers and the fight for basic legal freedoms in China
(Liu and Halliday 2016), it was said by lawyers, on occasion, that there were many,
usually younger, judges who shared the values of rights defense lawyers and the wider
international ideals of constitutionalism and rule of law. However, these judges had no
real or safe way of knowing how widespread were fellow judges, not of being in
communication with each other. In this way, we might consider such an anonymous
conglomeration as a latent force, potentially emergent in different political
circumstances.
2.3. An institution
Here we see judges in the forms that are customary in the traditional legal establishment
of the state – the Constitutional Court in Egypt, the Supreme Court in Pakistan, the
courts of first instance in Hong Kong. These are judges performing roles in Weber’s
bureaucratic organizations of justice, hierarchically structured with courts at different
levels of jurisdiction and different kinds of jurisdiction.
2.4. A collective actor
In this guise, numerous judges come together as an emergent social entity. It is a
relational collectivity where the raison d’être for relationships is a common cause.
Almost always this is a subset of the population of all persons holding the title of
“judge.” Here the whole is greater than the sum of its parts. This collective actor can be
observed in at least two different forms.
Consider a judges’ syndicate or association—a self-governing body of judges purporting
to represent the interests of judges and justice. Here a collection of judges join together
as a standing voluntary association for reasons of conditions of work, resources, and
institutional development or protection, among others. In Egypt, a judges’ association in
the 1980s and 1990s became a consistent advocate for reforms in the administration of
the courts, an advocate for the rule of law, and a host for collective action by a wider
legal complex (Moustafa 2007a, 2007b).
Consider a band of insurgent judges within an authoritarian regime, i.e., a subset of judges
who come together in a common cause. In the mid-1960s, during Franco’s fascist
dictatorship in Spain, a group of oppositional judges and prosecutors formed a social
movement called Justicia Democrática. Initially secretive and clandestine, the insurgent
movement grew over time to attract substantial press attention and to reach wider
publics. Among its accomplishments was a demonstration to the public that the judiciary
was “no longer a monolithic, conservative body” (Hilbink 2007, 417). Justicia Democrática
become one of the spearhead organizations in the democratic transition as it joined with
civil society in a drive for legal and political reform.
9
Halliday
2.5. As cases
Arguably, the most pervasive and consequential manifestation of “judges,” viz., the
decisions they make and the opinions they issue. Graver (2018, 2021a, 2021b) points to
numerous cases in Nazi Germany or occupied Norway and elsewhere (Graver 2024)
when it is the conjunction of a given judge with a particular ruling that the reasoning
and outcome of a case becomes a focal point of attention by critics or supporters. Often
the case becomes the flashpoint that triggers action for or against judges.
2.6. As symbolic figures
In this representation, judges stand less for a role or an organization and more as a
symbolic representation of a particular configuration of power in a society. “Judges”
offer an ideal, such as a branch of the state more or less compliant with the executive
branch, more or less able to check legislative power. We may see judges in this portrait
less in terms of the buildings that sit grandly in city and town squares, less as titles or
organizational hierarchies, and more as meanings attributed to what a judge, ideally,
represents in the understanding of law, the distribution of power, the protections of
vulnerable citizens in a society.
3. Stressors
By distinguishing among six categories of “judges,” I turn to stressors that are
particularly corrosive and harmful to each of the six manifestations above of the judges
or the judiciary. These will vary across time and context. They are incomplete and
illustrative. Nevertheless, they might propel us toward an analytic, then action-oriented,
basis for response. Future research and theory development will constructively proceed
when particular stressors can be matched with respective manifestations of judges.
As singular persons, judges can be pressured by personal, physical and reputational
intimidation and attacks. Here it is the person, herself or himself, who is singled out for
ad hominen threats or abuses. The person is named, whether or not the threats are
anonymous or directed by an identifiable figure. The firing of Pakistan’s Chief Justice
Chaudhry, and the nationwide outrage that followed, is one of the most dramatic
examples in recent times.
As a conglomeration, or collection of persons, stress can be intensified by individualizing
judges, keeping judges disassociated and unable to mobilize collectively. Judges are
treated more as a crowd by repressive forces rather than a collectivity which can come
together for common cause. The stressors here seem to erode a common professional
identity and values that would set judges apart from conventional groupings in political
parties or religions or racial or gender groups (Graver 2021a).
As an institution, we are most familiar with judges in their formal, state-prescribed
organizations of the judicial system. I find it useful to distinguish between stressors from
outside the judiciary itself and those from within the judiciary as an operating
organization. From outside, the stressors include appointments to the judiciary to
selection of judges for particular cases, as we have seen recently in Hong Kong’s national
security cases. They may include conditions of judicial service, ranging from length of
appointments to salaries, facilities and staffing. Judges can be starved of resources and
10
Judges under stress…
judiciaries run down in capabilities, as we have often seen. Allegations of corruption
undermine the institution, even though actuality of corruption may be subverting the
institution from within. Then again there is the ultimate threat of parallel courts—
military or security tribunals—set up to divide judicial power in the classic techniques
of the dual state. From inside, judges confront stresses of demotion or marginalization,
dismissal and forced retirement, deprivation of resources and poor working conditions.
Transferring outspoken judges to obscurity in the provinces is a common expedient in
research on legal complexes and political liberalism.
As collective actors, if judges have managed to unite in voluntary associations that share
interests and are differentiated from the formal hierarchies in which their work is
embedded, then they represent a threat to authoritarians. Authoritarians respond to
such threats in several ways. One set of stressors arises when insurgent networks and
groups of judges are monitored and threatened to restrict or refrain from actions. If
associations or even networks of judges refuse, they may be dissolved or forced
underground. Authoritarians can amplify stress on judges’ voluntary associations by
encouraging and resourcing counter associations. This is the equivalent for judges of
Singapore’s creation of a counter-law society that would conform more readily to oneparty control (Rajah 2012b). We might think of these as quisling associations within the
judiciary.
Judges, too, are symbolic figures, standing for a particular kind of legal system and
political society. Assaults on this ideal come from several sides. Judges are impugned
and maligned, less as a particular person, but more as a legal role. The earlier conferences
in this series have documented public confusion over whether a person presiding in a
trial is “a real judge.” Judges may collectively be branded as “a conquering power” or a
“juristocracy.” They may be cast as too removed from the lives of ordinary people or too
identified with this or that group within society. Their distinctive role and stature is
sullied and they are brought onto other playing fields of politics or public opinion, where
their singularity is diminished or denied. Pop culture, too, can portray judges as
arbitrary or as political hacks or as incompetents.
There is too much to say about cases, of judges as writers of opinions, of judicial reasoning
and pronouncements, and I am least equipped to elaborate upon them. But it is
impossible to read the literature or the media without seeing controversies and causes
célèbres over a particular ruling in a given case—either prospectively, i.e., how a judge
should rule or the apprehension of how a judge will rule (as became apparent in
President Musharraf’s concern about being able to run again as president of Pakistan);
or, retrospectively, i.e., why a judge should be criticized, as has been observed in notable
cases in Nazi Germany (Graver 2021b).
4. Legal complexes
If we begin with a differentiated conceptualization of “judges”, as they confront
distinctive stresses, we cannot end there. The fortunes of judges, in any of its meanings,
are always intricately bound with the fortunes of other practicing legal occupations. That
is a central proposition of the comparative and historical scholarship on legal complexes
(Halliday et al. 2007b, Karpik and Halliday 2011).
11
Halliday
As Feeley and Langford (2021b, 16-19) rightly observe in their prelude to the volume on
Nordic countries, the theory of the legal complex arose in reaction to three contexts. In
contrast to materialist and economic models of lawyers’ collective action, Lucien Karpik
and collaborators demonstrated repeatedly that lawyers frequently mobilize in the
vanguard of struggles for an ideal of political liberalism where the defense of basic legal
freedoms, the viability of a civil society, and the valorization of a moderate state are
integral values. In contrast to prevailing scholarship that isolates study of legal
occupations into silos—either of lawyers or of judiciaries or of prosecutors, to name but
a few—a theory of the legal complex insists that the fortunes of political liberalism
depend on the structure and dynamics of all these occupations in relation to each other.
And in contrast to deductive or normative theories, the framework of the legal complex
is inductive—drawn from many sites of research—as an empirically observed regularity.
4.1. A Domestic Legal Complex
A legal complex (LC) has five properties:
1/ An LC comprises all currently practicing legal occupations, certainly including judges.
It may also include private lawyers, prosecutors, legal academics, military lawyers, and
lawyer civil servants. The framework of the legal complex sprang from studies of private
lawyers in the emergence of political liberalism. 4 Very quickly it became apparent that
this was not only incomplete but inaccurate. Judges were integral to struggles in 18th
century France (Karpik 1999), in the US during 1950s anti-Communist crusades, and in
many other sites and places (cf. Feeley 2012). “Judges can form an important part of ‘a
legal complex’ that can be effective in the struggle for political liberalism in authoritarian
regimes” (Graver 2018).
We should be especially observant of legal academics, who often get forgotten in these
studies. Yet time and again it is legal academics who provide the concepts, the force of
legal argument, the grounding of their case for political liberalism in long traditions of
thought and institutions. Sometimes the role of academics can be transformative. Manoj
Mate has shown that it was the writings of a German legal scholar that provided the
juridical underpinnings of the Indian Supreme Court’s elaboration of the basic structure
doctrine, which proved to be remarkably expansive in the reach of the court (Mate 2012).
In other cases, legal academics can provide the authority, credibility and intellectual
force to empower or critique developments that threaten the role of law or elements of
political liberalism.
After Beijing imposed a National Security Law on Hong Kong in 2019, distinguished
legal scholar Johannes Chan has responded with a string of writings to fortify a judiciary
under stress. A longtime dean of the Law School at the University of Hong Kong, a senior
barrister, and a leader in the Hong Kong Bar Association, Chan’s credentials are
unimpeachable. He has written boldly on “abusive judicial review” in the Hong Kong
court (Chan 2022a, 2022b), where he not only appraises the contemporaneous
“independence of the judiciary” but points explicitly to strategies that authoritarian
regimes use to capture judiciaries. Chan exemplifies a legal academic, with high
Note that the term “political liberalism” utilized here refers not to political liberalism writ large, but to a
lawyer’s historically circumscribed concept of a legal-liberal political order comprising basic legal freedoms,
civil society and a moderate state. It is reducible neither to democracy, nor to rule of law.
4
12
Judges under stress…
standing in the practicing bar and in Hong Kong’s legal establishment, who can critique
the court from a position of authority outside the judiciary, clarify the nature of
challenges to the courts’ independence, analyze the legislation that presents dangers to
the rule of law, re-interprets the case law, and, not least, offers the courts ways out of the
countervailing pressures of an authoritarian state in tension with a wider legal complex
committed to basic legal freedoms, a vibrant civil society, and judicial independence. He
also is an example of a single person who straddles various segments of a legal complex,
benefitting from the confidence of each segment, who thus can bring into conjunction,
even mobilize, otherwise siloed legal occupations. Chan points, at least implicitly, to the
inter-mingling of the judiciary as an institution and judges issuing case opinions,
arguing in effect that case law offers degrees of freedom from judges who might
otherwise feel themselves unduly constrained by “judges as institutions.”
In some settings, prosecutors, too, may be brought into a legal complex that is fighting
for a moderate state in which judges are fortified by other legal occupations.
Comparative cases include struggles against the dictatorships in Spain (Hilbink 2007),
South Korea (Ginsburg 2007) and Taiwan (Hsu 2021).
2/ An LC is action-oriented. It does not refer to anyone with a legal education. The
occupations in a legal complex are doing legal work – drafting, advising, representing,
suing, prosecuting, teaching and writing law. And they are doing so individually and
collectively through organizations, such as law firms, bar associations, courts, judicial
networks, scholarly societies, NGOs, and military hierarchies.
3/ The actors and actions of a legal complex relate not to all issues at any moment but to
a specific issue at a given moment. A legal complex changes in its composition and
relationship as issues of legal change differ. A coalition among private lawyers, military
lawyers and prosecutors may mobilize on one issue but dissolve on another, where the
leading LC coalition comprises judges, legal academics and lawyer-civil servants. Today
we ask—what do structures and dynamics of legal complexes look like when judges are
under stress? This specific moment for judges may exhibit dynamics or structures that
contrast with a legal complex mobilizing for or against a piece of commercial lawmaking
or acting in societal debates over European norms for a particular human right.
4/ An LC involves a structure of relationships, often, perhaps usually, leading to
collective action among its segments. It is essential to recognize that they may be
relationships of cooperation or competition, of consensus or conflict. Our research shows
there may be LCs at war with each – one for legal change of some kind, another against
it. In our comparative and historical theory and research, an LC is not always fighting
for political liberalism in the broader sense and, is not always in favor of the rule of law
except perhaps in its narrowest sense. 5 But different configurations of a legal complex
could spring up around environmental problems or the problems of the elderly or the
revision of constitutions or corporate bankruptcy, or shifts in gender relationships
(Karpik and Halliday 2011).
5/ An LC acts at a particular moment in time. It is not static but highly dynamic. For
instance, Ginsburg (Ginsburg 2007) shows that, whereas South Korean prosecutors and
activist lawyers were locked in conflict in the early and mid-1980s, by the mid-1990s
5
See Table 1.1, p. 33, in Halliday et al. 2007b.
13
Halliday
prosecutors effectively became allies particularly in bringing corruption cases against
entrenched elites as they sought to redeem their earlier association with a repressive
state. A new and excellent study of Taiwanese legal complexes shows that during the
fight for political liberalism a legal complex of closely aligned lawyers, judges and
prosecutors fought together in solidarity (Hsu 2021). But once rule of law, democracy or
political liberalism was established, a previously unified legal complex began to fracture
as each legal occupation focused on its particular interests and thereby came into
conflict, or sometimes had disinterest, with those of other legal occupations. Ironically,
as I shall emphasize again below, it was opposition, repression, and authoritarian
behavior by political actors that forged solidarity in the legal complex and actually
enhanced its efficacy and ultimate triumph.
It is important to reiterate three essential aspects of a theory of legal complexes. First, as
Feeley and Langford rightly state, a legal complex does not inevitably or always mobilize
for political liberalism, or on behalf of a judiciary under assault. Frequently judges and
legal complexes capitulate to executive power, and any action out of step with
authoritarian rulers is crushed, at least for a time.
Second, I have argued elsewhere with respect to constitutional courts that the
configuration of a legal complex and the ways it mobilizes will differ across four
moments: (i) agitating for constitutionalism; (ii) instituting constitutional courts; (iii)
consolidating constitutional courts; and defending or protecting constitutional courts
(Halliday 2013). I expect there will have been similar differences in the fight for judicial
independence or autonomy or integrity in Central and Eastern Europe and in
contemporaneous efforts to defend judiciaries and judges.
Third, because authoritarian leaders well recognize the threat to their repressive regimes
not only by private lawyers, but even more of a legal complex, they work hard to
dismantle, break up, or prevent the emergence of a cohesive and active legal complex.
That was certainly the case in Singapore, as Jothie Rajah has documented in her superb
study of Lee Kuan Yew and his dismantling of any part of a legal complex that could
prevent his authoritarian rule of law (Rajah 2011, 2012a).
4.2. An international legal complex
We must widen the salience of legal complexes. Almost never is it the case in the 21st
century that a legal complex within a state acts in isolation from legal complexes beyond
the borders of that state. Repeatedly, empirical instances require that attention to a
domestic legal complex must be accompanied by its relationships with an international
legal complex. It has been recently proposed that an international legal complex (ILC)
exists and acts when the following elements are present:
(a) There are two or more classes of legal actors (e.g., private lawyers,
international civil servants, bar associations, judges), who (b) are presently acting
in legal roles and deploying the distinctive expertise and epistemologies of law
and its institutions, and who (c) act collectively through (d) varieties of structures
to (e) effect change through legal means to solve a particular problem or issue on
which they share a common framing (Halliday et al. 2021).
14
Judges under stress…
More precisely, a legal complex becomes international when the classes of actors span
one or more state boundaries; when they are collectively mobilizing as regional,
transnational or global bodies or networks; and when they are proposing or resisting
change from outside a given state.
Consider three manifestations of an international legal complex with strong European
foundations that fights for judicial independence worldwide, each of these
manifestations well known to you. The International Bar Association 6 acts as a world
peak association for 190 organizations of lawyers and barristers, among others. In many
of those bar associations, including the American Bar Association, judges play
prominent roles. The International Commission of Jurists,7 based in Geneva, brings
together notable practicing lawyers with judges and legal academics, again with a
pointed focus on independence of the bench and bar. Lawyers for Lawyers, 8 an
international NGO based in the Netherlands, while primarily directed at protection of
private lawyers from state repression, nevertheless proceeds on a presumption that
judicial independence is a critical condition for defense of the bar. Many other cases in
point could be adduced, including the Council of Bars and Law Societies of Europe.
In the struggle for basic legal freedoms in China, research demonstrates that these bodies
of an ILC join with like-minded other ILC organizations, and international NGOs and
international governance organizations to hold China accountable to global norms
which implicate judges in almost all respects (Halliday et al. 2021). Research on Hong
Kong likewise finds evidence that an ILC brings a world of exterior and concerted
mobilization to fortify the interior struggles within a country and, in some cases,
becomes the voice of LCs silenced within a given country.
Legal actors of different kinds—international bar associations, networks of jurists,
internatonal NGOs of an LC—act singly and collectively, often reconfiguring
themselves, depending on the harms they seek to mitigate. None of their structures is
identical, which in itself may be a benefit that leads to diversity of approaches. They
share common fundamental framings of rule of law and independence of the judiciary
among others, but also configure themselves differently as frames of reference differ,
e.g., between “disappearances” of leading lawyers 9 versus calls for accountability in
Beijing’s crimes against humanity in Xinjiang.
There is another way we can think about legal complexes, and it has proved valuable in
my own research. We have argued that all segments of practicing legal occupation inside
and outside a state are prospective elements in a legal complex that mobilizes on a given
issue. This approach emphasizes roles and organizations. However, when we observe
legal complexes in action we can also see that particular types of legal professionals have
singular capacities to fuel action.
Consider generational differences—retired judges who can combine the authority and
distinction of years on the bench, but in retirement are free to express views in ways that
https://www.ibanet.org/
https://www.icj.org
8 https://lawyersforlawyers.org/en/
9 For the activation of international legal complexes in the wake of the Party-state’s nationwide 709
Crackdown beginning on 9 July 2015, see Halliday 2019.
6
7
15
Halliday
would be impossible while still sitting. Consider the international highly prestigious
nonpermanent judges who sat on Hong Kong’s Court of Final Appeal but resigned in
protest for infringement of Beijing on the independence of Hong Kong courts.
By radical contrast consider the young, innovative lawyers who created the Progressive
Lawyers’ Guild in Hong Kong. Their sophistication in use of social media, often with
daily and even more frequent posts and exchanges, their boldness of thinking about how
to defend the many young people detained by police after demonstrations, revealed a
courage unencumbered by many of the responsibilities that weigh upon older and more
established lawyers.
4.3. A toolkit for analysis
I propose, therefore, that the framework of legal complexes provides a methodological
toolkit with which to approach judges under stress and any given episode of struggle
over legal and political ideals, such as rule of law, political liberalism, the autonomy of
the bar or the independence of the judiciary. Systematic analysis of any episode of judges
under stress might constructively proceed methodologically, and subsequently,
empirically, by cross-classifying the six manifestations of judges (e.g., singular person,
associations) with the multiple segments of a legal complex (e.g., private lawyers, legal
academics). A rigorous analysis would identify which stressors and responses to
stressors are evident in a given situation, between, for instance, a singular person and
lawyer civil servants).
In every such occasion, I argue, the scholar or analyst should be treating entire legal
complexes as a null hypothesis against which to discover who, when and how
mobilization occurs by legal occupations for an ideal such as judicial independence.
History and contemporaneous struggles should impel critical observers to proceed with
the working hypothesis that both a domestic and an international legal complex are in
play in any struggle over basic legal freedoms and in a moderate state where judiciaries
retain capacities to temper state power. We shall see that this is more than a matter of
scholarship. It is also a toolbox for activism.
5. A sociology of hope
In 2004 the American Academy of Political and Social Science published a special issue
of its journal, the Annals, on the topic of “Collective Hope” (Braithwaite 2004a, 2004b).
Quite recently an eminent international relations scholar, Martha Finnamore, and her
colleague, Michelle Jurkovich (Finnemore and Jurkovich 2020) have proposed a turn in
political science toward “a politics of aspiration.” “Aspiration,” they state, “is an
essential component of political life. Aspiration shapes political action. It articulates
goals, affirms identities and values” and is, “by its nature, a transformational futureoriented process (…)” (Finnemore and Jurkovich 2020, 1).
There is a theoretical conjunction between hope and aspiration in which the political
sociology of legal complexes becomes salient. Its salience is intensified when both hope
and aspiration are centered on an ideal of political society where judicial autonomy
undergirds a moderate state. In this kind of political society, buttressed by a vibrant civil
society and public sphere, the legitimacy and authority of judges is upheld, subject to
16
Judges under stress…
their accountability to ideals, and the fortification of their circumscribed role becomes a
priority for the builders, maintainers and defense of this good society.
I have therefore come to the view that insofar as hope and aspiration are arenas of
struggle over ideals, a social scientist may speak to hope not necessarily in normative
terms, where most social scientists are not well trained, but in contingent terms. That is,
if a certain hope or ideal is articulated, let us call it “z”, then realizing that hope depends
on a contingent set of conditions, let us call them “x” through “y” in given contexts “k”,
“l” and “m.” One of those sets of conditions for judges under stress is a legal complex,
or, more properly, configurations of legal complexes, and accompanying the actors in
those legal complexes are repertoires of contention. Together these offer grounds for a
sociology of hope when judiciaries are under assault or when they are ripe for reform.
5.1. Structural resourcefulness
I propose that the framework of legal complexes can be understood as a springboard for
hope. Why?
First, in any given context, England in the 1660s, France in the 18th century, South Korea
in the 1980s, Egypt in the 1990s, Pakistan in the 2000s, Hong Kong in the 2020s, judges
do not stand alone. Neither individual judges nor entire judiciaries are isolates. Even if
the judges view themselves as a singular profession and institution, in social and legal
history their fate lies with interdependencies among other segments of legal complexes.
Second, the findings of empirical research across time and place show that solidarity
with judges in search or defense of an ideal may come from a variety of other practicing
legal professions. That solidarity in one place may be obtained by some judges with
some private lawyers and with some prosecutors. That solidarity in another place can
bring an organized private bar into alliance with legal academics and government
lawyers. In fact, with five or six segments of a legal complex potentially able to mobilize
collectively, the prospective structures that impel a social movement of practicing legal
occupations give a multiplexity to action, which in itself fosters hope. The recruiting
grounds for activist defenders or proponents of a judicial ideal are multiplied. Potential
combinations of segments proliferate.
In fact, the current situation in Hong Kong, insofar as we can understand its dynamic
unfolding, does not involve mobilization by judges at all. Whatever defense is being
erected for the rule of law in Hong Kong, it has come from other segments in a legal
complex – before 2019 from the bar association and legal academics and after 2019 from
an international legal complex. In other words, if judges cannot speak for themselves,
they may obtain spokespersons in solidarity with other segments of legal complexes.
International legal complexes proved themselves invaluable as allies, coalitional
partners or spokespersons to global publics and policy makers in the struggles for
judicial independence in Egypt and Pakistan, and they do so even more proportionately
in Hong Kong.
I see this proliferation of possibilities as structural resourcefulness. It signals to judges and
to all other legal occupations the richness of social resources potentially available in a
given struggle, whether to obtain political liberalism or to defend against its enemies.
Judges may enter the arena of struggle with an a priori hypothesis that many sorts of
17
Halliday
combinations of legal occupations might be possible in the given context of a struggle in
a particular time and place.
5.2. Repertoires of action
Hope inheres in more than structures. As we know from Max Weber’s depiction of
bureaucracies as potential “iron cages” which are rigid and constraining, structures also
can be static, locking themselves into a path dependency or a liability of tradition and
age. In my view, an unexpected finding from the literature on legal complexes is that
their many structural configurations provide evidence of ever more creative repertoires
of action.
If authoritarians in Singapore, Hungary or China have developed toolkits for inhibiting
or deconstructing rule of law, if repressive regimes have displayed ingenuity in
undermining a moderation of executive power, if one-party states have sought to perfect
instruments of repression against lawyer-advocates for political liberalism, then, so too,
have legal complexes displayed remarkable adaptability in the repertoire of actions in
widely divergent situations.
Unfortunately, the scholarship on legal complexes has not yet produced the sort of
typology that categorizes all the forms of action taken by legal complexes. Ideally, a
typology of repertoires would match a given action to a specific type of assault on a
judiciary or the attainment of a specific goal in the bid for rule of law or political
liberalism. For the moment, consider again this repertoire displayed in the four cases I
have featured –Egypt, Pakistan, Hong Kong and Taiwan (see Table 1).
With respect to singular persons, individual judges, the Chaudhry repertoire of action by
a Pakistani legal complex appears quite remarkable because the individual judge came
to stand for the entire judicial institution and the symbolism of who judges are and what
they stand for. Ghias (2012) and Munir (2012) document how the several fronts of
mobilization embraced the courts and bar associations, abetted significantly by the
media and publics across the country. “The strategy was masterminded by an advance
guard of lawyers,” including the chair of the Pakistan Bar Association, a retired judge
and former chair of the Supreme Court Bar Association, and activist lawyers. It counted
on the presence of the second-most-senior judge sitting on the Supreme Court. The Chief
Justice himself crisscrossed the country to address bar councils in regional centers.
Despite the economic hardship to lawyers, bar associations boycotted lower courts,
refusing to represent clients and bringing much of the justice system to a halt. Lawyers
who failed to comply with the boycott were themselves shunned by bar associations and
threatened with loss of practice licenses. Bar association leaders appeared on television
and wrote opinion pieces to educate the public about this “miscarriage of Chief Justice”
(Ghias 2012).
The bar associations orchestrated daily protests in the streets where “ranks of lawyers,
marching solemnly in their black coats, gave the public perception that the protests were
significant events” (Ghias 2012, 363). When the regime resorted to violence, “the media’s
live coverage of bleeding lawyers” heightened public consciousness and strengthened
lawyer solidarity. Indeed Munir (2012) argues that Pakistan signaled a new approach by
political scientists to middle class professionals in political transitions. Whereas
professionals in the past had been thought to act principally as producers of “intellectual
18
Judges under stress…
authoritative discourse,” the repertoire of contention in Pakistan led to mass popular
mobilization. Munir counts some 291 events associated with the lawyers’ movement on
behalf of Chief Justice Chaudhry between March 2007 and March 2009 (Munir 2012, 390).
The standout “long marches” brought lawyers on foot with their many thousands of
citizen-supporters from the provinces into the great urban centers of Karachi and
Islamabad.
Of course, lawyers paid a heavy toll. In addition to losing work in the boycotts,
thousands of lawyers were arrested or detained, hundreds were physically assaulted,
and leaders were jailed (Munir 2012, 394). In part because of these severe costs, widely
publicized through TV, papers and radio, this legal complex prevailed. Chaudry was
reinstated, emergency rule was lifted, and the advance to democracy, while not an
explicit aim of the movement, gathered impetus.
Authoritarians can tolerate conglomerations of judges so long as they are passive and
atomized or are obediently ordered in strict hierarchies. Although the mechanisms to
keep judges obedient or disassociated can be readily identified, the repertoires of a legal
complex to counteract these stressors are seen in two ways. One is indirect and diffuse.
Judges seldom march in the streets. This would seem to detract from the dignity of law
as they, and perhaps the public, perceive it. When, however, other segments of a legal
complex spring into action on behalf of a specific judge, or an institutional ideal such as
a rule of law anchored by an independent judiciary, then a conglomeration implicitly is
cast into the form of a collective identity. The individual judge is no longer the isolated
and vulnerable individual but rather the constituent of a sacred collectivity where the
individual judge stands for the whole.
Much more identifiable, however, are repertoires of action built on social organizations
of judges acting for themselves, whether in formal or voluntary associations. These
emergent social organizations repeatedly become fulcrums of action to resist authoritarian
incursions on judicial independence and rule of law or to obtain or regain their relatively
autonomy as an institution integral to the liberal-legal state. In Egypt the formal
syndicate of judges used its conferences to bring together judges with private lawyers,
legal academics, and sometimes civil society activists to plan joint actions, to forge
strategy, and to inform publics. The Hong Kong Bar Association repeatedly took a strong
public stand to defend judges and courts in the face of media criticism or when
antagonistic lawmakers resisted judicial decisions. In effect, the Bar Association took
upon itself to become a spokesperson for a liberal-legal complex and an educator of
publics.
A quintessentially legalistic form of contention characterized struggles in Egypt and
Pakistan. Egypt’s Supreme Constitutional Court struck down a law that would limit
associational life in Egypt, thereby partially silencing civil society and professions
(Moustafa 2007a, 208). Human rights NGOs strongly infused with LC personnel filed
hundreds of cases that would affirm the authority of a judiciary over unbridled executive
power. In Hong Kong, distinguished barrister and legal academic, Johannes Chan, not
only critiqued the constitutionality of the National Security Law but explicitly offered
Hong Kong judges means by which they could “mitigate the draconian nature of the
national security offenses” (Chan 2022a, 91). He insisted that judges could manifest
19
Halliday
“judicial creativity on procedural or evidential matters” and showed them how to do so
(Chan 2022a, 92).
Repertoires of contention in each of the historical episodes I’ve covered are all marked
by instances of outspoken calls to arms by leaders of legal complexes. These efforts to
uphold and articulate the ideals and symbolism of a robust judiciary committed to the
autonomy of law are well illustrated by retiring Hong Kong Chief Justice Geoffrey Ma’s
retirement speech in which he railed against “intense attacks and scurrilous abuses” of
the judiciary in recent years (Chan 2022a, 93, n.113). Senior respected figures in Hong
Kong’s legal complex called upon the Secretary of Justice to speak up and for the Hong
Kong Court of Appeal to be less deferential to Beijing, the National Security Law, and
Hong Kong’s administration. When distinguished international judges withdrew from
temporary assignments on Hong Kong’s Court of Appeal, it too sent ricochets of
warning to the government and business sectors about the diminishment of the courts.
In short, we observe at least three classes of mobilization by legal complexes on behalf
of judiciaries: (1) a legalistic internal recourse to the practices and institutions of law
itself; (2) a call to varieties of popular and mass mobilization, including coordinated and
parallel actions with supportive institutions of civil society; and (3) recourse, albeit a
dangerous recourse, to alliances with political parties and oppositional figures.
6. Contingencies
In his compelling account of the unique struggle by Pakistani lawyers in 2007–2009,
Munir proposes four conditions under which the lawyers’ movement achieved the
success it did, both in reinstating Chief Justice Chaudhry and in contributing to regime
transition. 10 It is a bridge too far in this paper to offer a comparative theory of the
conditions under which legal complexes will mobilize to protect judges under stress.
Nevertheless, let me touch upon several conditions in brief.
6.1. Agency in constructing a legal complex
The emancipatory possibilities of structures and institutions to sustain judges under
stress is contingent on individual and collective agents rising to lead resistance and
change. To put it bluntly, legal complexes must be constructed. I say this not as a
normative edict but as an observational constant. Institution-builders commonly arise
from within the private bar and the legal academy. Sightings of institution-builders have
been noted in the judiciary, civil service, and ministries of justice. A legal complex rises
and falls dependent on the emergence of individual and collective leaders who
consciously seek to build alliances, forge cooperation, and foster intense interaction
across segments of a legal complex. This leadership can be associated with an individual,
as it was with Hong Kong University law professor Benny Tai in the 2014 Hong Kong
campaign, Occupy Central with Peace and Love, or with a purpose-built association of
a legal complex, such as South Korea’s insurgent Mincheon in the 1980s.
10 The four conditions were: (1) embeddedness of lawyers’ organizations in the larger society independent
of foreign support; (2) intimacy in the identification of ordinary citizens with ordinary lawyers who fought
at considerable cost for fundamental rights; (3) urgency of legal work that was suspended for a higher cause;
and (4) maintaining a narrow agenda substantially removed from party politics and issues (Munir 2007,
403–406).
20
Judges under stress…
Individual and collective agents of legal complex activism will foster hope by
interrogating traditions, discarding outmoded features and appropriating now-relevant
ideals; by surfacing taken-for-granted assumptions about what is a judge or how
judiciaries engage with other branches of the state and civil society; by breaking out of
institutional silos or isolated collectivities to recognize the possibilities of mutual
interests and strength across segments of legal practice; by matching structures and
repertoires with categories of “judges” and particular stressors; and by discerning crosscontextual affinities – what might work here and what will not. In almost every context
this widening of imagination and exercise of agency opens up new terrain within a legal
occupation and within a country. It compels actors to be adaptive to new exigencies in
politics and society and to new understandings of every practicing legal occupation.
6.2. Building a moral economy between the bench and bar
In sites as different as mid-twentieth century U.S. and early twenty-first century
Pakistan, the efficacy of a coalition between judges and lawyers can be enhanced by a
moral economy that binds them together. Halliday (Halliday 1987) writes of a normative
economy between bar and bench. On the one side the organized bar contributed to a
politics of affirmation, in which it fought for improved conditions of judicial service,
sought to relieve court congestion, and helped improve rules, procedures and
organization of the court, all of this nested in wider efforts to purge the bench of party
politics and to increase the autonomy of courts from executive control. On the other side,
the bar engaged in a politics of negativism, holding judges accountable for their behavior,
monitoring their demeanor on the bench, and screening judges for admission to the
bench. The former essentially balanced the latter with the results of improved quality of
judges on the bench, the administrative capacities of the courts and their relative
autonomy, and the protection of the judiciary from either political or public pressures.
In the case of Pakistan, for instance, the Supreme Court in particular had in previous
years built up strong good will in the bar and with the clients of lawyers. That goodwill
set the bench in good stead when it became vulnerable and needed allies in other
segments of a legal complex brought together in a particular moment of threat.
6.3. Activating interdependencies with civil society
Pakistan, Egypt and Hong Kong all indicate the critical need for a legal complex to be
embedded in a mutually supportive civil society. The centrality of civil society to judicial
resistance has been well argued by Bojarski (2021) in his study of Poland from 1976 to
2020, where he documents how “CSOs [civil society organisations] play a significant role
in the struggle for the rule of law and judicial independence.” Comparative research on
legal complexes that reinforces the significance of a Tocqueville-like civil society is
integral to political liberalism itself. It is not simply a space of social interaction beyond
the state. Since many segments of the legal complex in many places reside within
professional associations that themselves are constitutive of civil society, many legal
occupations conjointly stand with one foot in the state and another in civil society. This
gives such organizations a singularity that should not be underplayed.
Significantly, civil society associations may be seen as institutions of hope (Braithwaite
2004a, 2004b). That is not to venerate civil society as if this social space is always in favor
of one juridical or political ideal or another. From Poland to the U.S. we know that is
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Halliday
simply not the case. Nevertheless, where freedoms of association, speech and movement
still exist in practice, then civil society offers an extraordinarily powerful, often
innovative, and sometimes more pointed ally for the legal complex. Indeed, one might
argue that without an alliance between a vibrant civil society committed to these ideals
and a judiciary open to partnership with it, the prospects of protecting judges or of
creating and maintaining a politically liberal regime, might disappear entirely. Such an
analysis requires also a careful and nuanced treatment of religion and its motivational
and organizational power both for and against political liberalism in one or another
context (Halliday 2010).
6.4. Acting as spokespersons for publics
We may do well to return to pre-Revolutionary France and 19th century French society,
where Lucien Karpik’s magisterial book on lawyers and political liberalism from 13th to
20th century France pointed to the singular role of lawyers speaking on behalf of publics
when no other spokespersons for publics had emerged or were allowed to speak (Karpik
1988). Speaking to publics from the courts, or through the media via a convenience of
mutual interests in publicity, and on behalf of publics as a kind of societal trustee,
combined to fortify the best in judiciaries and to hold accountable the worst.
7. Conclusion: The redemptive irony of repression
What we observe in social organizations and institutions in general may be seen also in
judiciaries and the institutions that construct and defend the rule of law and political
liberalism. On the one side, sociologists repeatedly discover that institutions can grow
stale and brittle, become irrelevant and outmoded. Contexts change but organizations
don’t keep pace. New challenges arise, new stresses are placed on old organizations, and
legal orders become vulnerable to erosion and shock events (Halliday and Shaffer 2015).
On the other side, the construction of a new legal or political order will inevitably render
organizations subject to the “liability of newness,” as sociologists have labeled them.
They are not yet sufficiently entrenched, not yet surrounded by powerful actors who
share their values, not yet fully understood by publics for their ideals.
Ironically, it is often threats that reveal hidden weaknesses, stressors that show
vulnerabilities, attacks that point to faults that have been overlooked or uncorrected.
Time and again, historical and comparative studies of legal complexes indicate that it is
a rise of repression or the shock of a coup or the intensification of authoritarian erosion
that compel segments of legal complexes to join forces and find new ways, appropriate
to the time and place, that the taken-for-granted or the manifestly vulnerable aspects of
a legal value such as the autonomy of law must be expressed.
In Taiwan’s march towards rule of law and an open political society, Hsu (2021) ably
shows that it was the authoritarianism of the regime, its repressive instincts and actions,
that brought together a legal complex tightly focused on a common cause and bonded
across its segments of private and academic lawyers, prosecutors and judges. When the
common threat disappeared, this legal complex fractured and the solidarity-inspiring
threats to rule of law dissipated.
In the past five years, Beijing’s harshly repressive policies against Uyghurs and Muslims
in China’s northwest have had the ironic redemptive effect of bringing together silos of
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Judges under stress…
legal occupations and international civil society groups that previously were scattered
and disassociated. Tibetan Buddhists, Uyghurs, and Christian international NGOs, until
recently proceeding along independent paths of resistance, have now found common
cause with international civil society groups and an international legal complex. Xi
Jinping has managed to produce a collective response to these abuses of global norms of
law and politics that remained elusive before his increasingly totalitarian proclivities
were revealed.
In sum, I propose that we will not understand either the theory or the pragmatics of
judicial resistance or judges under stress unless we widen our frame of analysis to
encompass entire domestic and international legal complexes and their failures or
successes in mobilizing on behalf of a judiciary under fire.
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