The label ‘populist’ has been used in recent years by scholars and journalists to describe judicial behavior in a diverse set of countries. Yet judicial populism has to date not been the subject of comparative scholarly inquiry. This symposium aims to launch just such a comparative analysis, bringing together work by scholars with diverse disciplinary and geographic expertise to grapple critically with the phenomenon of judicial populism. In this introductory article, symposium organizers Lisa Hilbink and Yasser Kureshi distill and synthesize the findings and arguments from the four individual articles in the symposium to address three main questions: (1) What is judicial populism? (2) Where does judicial populism come from? and (3) Do populist courts benefit or undermine democracy? They discuss how the contributions to the symposium speak to each of these questions, in turn, generating a scholarly discussion, across disciplines and contexts, with which others can engage moving forward. To this end, they cap the introduction with some suggestions for future research.

Does the process of writing a constitution have any impact on its durability? Using a cross-national analysis of 209 constitutions adopted since 1974, this study shows that the broader inclusion of different societal and political groups in constitution-making processes, rather than mere public participation, positively correlates with constitutional durability. Following self-enforcement theories, this study argues that to be self-enforcing and enduring, a constitution should be viewed as “fair” by every group in society to create a supporting constituency. This study suggests that an inclusive process can result in a “fair” constitution, which is deemed beneficial to every group in society and garners their willingness to defend and support the terms of the constitution. Confirming this argument, our statistical analysis shows that inclusive constitutions have 54 percent lower risk of replacement than noninclusive constitutions.

Across the developed world, citizens typically file many more administrative appeals than administrative lawsuits. Yet, in contrast to the rich literature on court decisions, little is known about the determinants of administrative appeals decisions. We seek to fill this scholarly gap. An important feature of administrative review panels is that typically only some of their members have professional legal training. Drawing on original data on Japanese prefectural-level Administrative Complaint Review Boards (ACRBs), we show that ACRBs with more private attorneys rule more often against agencies. Consistent with a socialization perspective, we find preliminary evidence that ACRBs with more experienced private attorneys rule more often against agencies. We also find that, consistent with insights from both political insurance theory and the literature on technocratic appointments, more recently elected prefectural governors are more likely to appoint more private attorneys to ACRBs and that governors’ ideological orientations have little effect on their choices.

The rise of judicial populism in various national jurisdictions is usually explained through the vicissitudes of power conflicts between the judiciary and other governmental organs. In this article, I try to locate the origins of India’s well-known judicial populism in the peculiarities of Indian constitutional design itself. I argue that the heavily statist nature of India’s transformative constitutionalism, specifically its “Directive Principles of State Policy,” has made the practice of classical judicial review increasingly untenable and provided the grammar for its judicial populism. Directive Principles add another layer of complexity to the “counter-majoritarian difficulty” in India, forcing the constitutional courts to traverse increasingly unconventional territory to legitimise their role. It helps explain why the famously powerful Indian judiciary has failed to act as an institutional check to the crisis of constitutionalism well underway in India. The article provides a stark example of the normative challenges faced by a constitutional court in a transformative constitution.

Judicial authority relies heavily on the reader’s perception that judges make fair and legitimate decisions. Do such perceptions rest primarily on the reader’s agreement with the decision? Or does an opinion’s reasoning style, as distinct from outcome, impact a reader’s perceptions of legitimacy? In this study, we test whether incorporating elements of procedural fairness into judicial opinions impacts readers’ perceptions of fairness and legitimacy, distinct from their agreement with the decision. In doing so, we also test whether members of the public are sensitive to elements of procedural fairness in written judicial opinions — a different context from the interpersonal interactions in which procedural fairness has been most often studied. We ran two survey experiments that sort participants into four conditions, varying the outcome of the case and whether the judicial opinion employs elements of procedural fairness. After reading a procedurally fair or one-sided opinion, participants reported on their perceptions of fairness and judicial legitimacy. We found strong support for the hypothesis that agreement with the outcome impacts readers’ perceptions of fairness and legitimacy, and weak support for the hypothesis that procedural fairness impacts these perceptions.

A growing number of analysts use the term “judicial populism” to refer to judicial behavior that they find problematic, but they apply it to divergent phenomena and find it objectionable for different reasons. What, then, is judicial populism, and when and why should it be of concern? Taking a deductive approach, I argue that judicial populism is best understood as a performance/discursive style, analytically distinct from judicial activism. Like judicial activism, it is a gradational concept, and both populism and activism may present in judicial behavior to different degrees and in different combinations. To illustrate, I develop a grid matrix with an X-axis that runs from maximal restraint/deference to maximal creativity/dominance in the content of judicial rulings (the “what”) and a Y-axis that runs from maximally removed and technocratic to maximally proximate and publicly oriented in the performance or communication of the judicial role (the “how”). This two-dimensional framework enables nuanced comparison of judicial behavior in disparate times, places, and issue areas, illuminating relative variations and trends therein. It also helps to illustrate that, from a pluralist and deliberative democratic perspective, it is not judicial populism per se that should trouble democrats but, rather, populist behavior taken to extremes.

What is a populist judge, and when do judges embrace populism? Populist judges bypass legal and procedural constraints, seek an unmediated relationship with the public, and claim to represent the public better than political elites. Judicial populism can emerge in response to institutionalized dissonance in the political system. Dissonant institutionalization facilitates contestation between state institutions and can undermine the legitimacy of political institutions. This legitimacy crisis can imbue judges with a belief in their role as representatives of the public interest. In Pakistan, the dissonance caused by unresolved differences between the civil-military bureaucracy and the elected political leadership—differences that were embedded into the constitutional framework, facilitated the rise of judicial populism. I outline the key features of judicial populism and study the dynamics surrounding the rapid expansion of populist jurisprudence between 2005 and 2019 in Pakistan, with a focus on public interest litigation that became the cornerstone of the judiciary’s populist turn. Through case analysis, archival research, and semi-structured interviews, I discuss features of the populist approach to jurisprudence and trace how dissonance within Pakistan’s political system created new opportunities for the judiciary and changed judicial role conceptions within the legal and judicial community.

Deliberation is routinely considered an essential component of a jury trial, contributing to the quality of fact-finding and confidence in jury verdicts. Unlike all other countries that use juries, Brazilian jurors do not deliberate. Instead, under the Brazilian jury system’s “incommunicability rule,” they submit their votes individually, without discussing the case with one another. How jurors approach the task of individual decision making and how they view and experience this notable absence of deliberation are unknown. The aim of this article, which is part of a broader research project on jurors’ decision making in femicide trials in Brazil, is to understand these experiences and views of Brazilian jurors, especially regarding the incommunicability rule. The research used qualitative methods, including ethnographic observations of trials and semi-structured interviews of jurors. The majority of jurors voiced support for the current practice, explaining that refraining from deliberation would ensure their impartiality. However, 41 percent of the jurors said that they would have liked to deliberate with others to exchange and debate views. Interviews also shed light on how the absence of deliberation affected the decision process and jurors’ satisfaction with the overall jury experience. This research contributes to an ongoing debate in Brazil over the incommunicability rule.

I provide a new analytical framework to understand the effectiveness of corruption prosecutions in the so-called Mani Pulite (Clean Hands) operation by showing how this operation was rooted in a populist interpretation of criminal rules and criminal procedure. The Clean Hands operation represented a successful breakthrough against the vast and complex corruption system that had sustained Italian politics for decades. I show that prosecutors in the Clean Hands operation interpreted legal rules through the lens of a deep-seated hostility between a vague conglomerate of “corrupt elites” and “virtuous citizens.” This populist interpretation of criminal and procedural rules introduced significant legal innovations that empowered judicial actors against systemic corruption by creating unprecedented incentives for defendants to cooperate with legal authorities. Consequently, the judicial professionals leading the Clean Hands operation also felt the need to shield themselves against retaliation for the use of these novel approaches to corruption prosecution by bringing their fight before the court of public opinion. To this end, the Clean Hands prosecutors made use of targeted media interventions to rally public support around their investigation and protect their work from political interference.

In 1915, a Denver murder case became a national story, not because of the identities of the perpetrator or victim but because of a reluctant trial witness: Judge Ben B. Lindsey. A pioneer of Progressive Era juvenile justice, Lindsey was charged with contempt of court for refusing to disclose the details that a twelve-year-old boy shared with him. His refusal led to a six-year-long battle over ideas of confidence and secrecy between a juvenile court judge and a minor. This article analyzes the murder trial and consequent contempt of court case as reflective of a clash over questions of law, justice, and public interest and highlights the role of ordinary people, including children, in debating these ideas. It argues that, as legal actors engaged in a conflict between legal formalism and socialized law, members of the public debated their own perceptions and vernacular understandings of law, justice, and the role of the juvenile court.

A growing number of Medicaid programs have expanded to employ family members to provide long-term home care to individuals with disabilities, challenging the traditional wisdom that the law systematically denies the economic value of family caregiving. This article qualitatively studies a novel dataset of fair hearing records arising out of one of these programs—New York State’s Consumer-Directed Personal Assistance Program (CDPAP)—and makes two contributions to the literature on care, disability, and the welfare state. First, this article explores the new public/private boundary of care when the state limitedly expands its public care responsibility by compensating some family caregiving, providing a more nuanced picture of how the legal system both values and undervalues care. Second, it contributes to disability law scholars’ debate about medicalization by studying how medicalization works as a state legibility project in the context of state-supported disability care. Especially for traditionally undervalued social goods such as care, medicalization provides some metrics, albeit highly constrained, to make its value visible. Meanwhile, through capturing care recipients and their families’ more expansive understandings of care’s value, this study reveals the constraints of these metrics and supports making the relational dimension of care legible to the state.

The history of legal aid in South Asia has hitherto been restricted to appendages or short overviews in writings orientated towards its contemporary. This article offers the first archivally grounded study of the birth of the legal aid movement in early twentieth-century colonial India, focusing specifically on the Bombay Legal Aid Society. It pursues three major lines of inquiry. First, I consider the transnational intellectual networks between India and America upon which early Indian legal aid thinking developed. Second, I tackle the fraught politics of doing legal aid in interwar Bombay, a period marked by anticolonial nationalism and strong trade union organizing. Finally, the article examines why the BLAS succeeded in building strong working relationships with existing social welfare societies, state institutions, and like-minded legal professionals, but failed to garner considerable interest from the working classes it sought to serve. I argue that these struggles point to the hard limits of legal aid in the colony but also present a valuable window into the Bombay working classes’ legal consciousness. The article thus contributes to ongoing efforts at globalizing the history of legal aid and to the small but growing study of the legal profession in colonial South Asia.

Is a marriage rendered invalid in the absence of a marriage certificate? How does the absence of state recognition influence the legitimacy of a marriage across different legal and cultural systems? In Bangladesh, customary marriages—where a marriage might not be formally registered with the state—are common. This article explores how shalish (community-based courts) accept alternate evidence to prove a marriage, noting the ways in which this approach can benefit women. Drawing on ethnographic fieldwork in urban and rural courts in Bangladesh, archival research studying court records, and interviews with diverse interlocutors, my findings indicate that Muslim women who do not have a kabinnamma (marriage certificate) prefer to go to shalish to mediate disputes because this site is embedded within the community and attuned to the cultural context of marriage. I provide a comparative analysis on the admissible evidence used to prove a marriage in state courts and in shalish, examining the legal reasoning within each system. Shalish operates with a flexible legal reasoning, which in theory has the capacity to recognize social hierarchies, balancing power and implementing justice in more equitable ways. Noting the kinds of cases where marginalized women benefit from the decisions in shalish compared to decisions from state courts reveals the gaps in state law, challenging the claims of universality and superiority over other forms of law as well as a need to rethink evidentiary protocols from the ground up. This article highlights alternate epistemic frameworks of justice that recognize and center rural women’s positionalities, desires, and standpoints, thereby decentering thinking about law and evidentiary processes rooted in Eurocentric, patriarchal, and urban frameworks.

Based on four years of fieldwork, including 339 interviews across 21 cities, this paper provides the first-ever ethnographic account of the political economy behind the transition from traditional taxis to Didi-style ride-hailing in China. This paper makes two contributions to the literature. First, it investigates how the seemingly disadvantaged stakeholders of an old economy resisted the progress of the platform economy and why the different levels of the Chinese government, which are not subject to Western democratic accountability regimes, respond to the resistance. Second, it demonstrates the sophisticated and various approaches the Chinese government has taken in balancing the interests of the old taxi industry and the interests of the new economy. The Chinese government’s holistic approach in seeking a balance across different industries and achieving multiple goals at the same time differs from our conventional way of considering regulating online ride-hailing as an issue of compensation between the government and taxi license holders or an issue of legalization between the government and platforms such as Didi or Uber.

Judges in Vietnam have increasingly been called upon by the state and society to resolve new social and economic problems. However, the expansion of judicial authority presents a problem for Vietnam’s authoritarian government, which wants courts that can resolve social problems without challenging state interests. This study draws on empirical research to explore whether judges in Vietnam’s authoritarian polity can harness legal reasoning to extend their authority. It uses a novel theoretical framework based on systems theory to understand how judges determine who is entitled to benefit from the law, which norms are appropriate to particular cases, and how such norms might direct them to reach decisions. Data from case studies and interviews with judges reveal that courts in Vietnam are increasingly using legal reasoning to manage the interaction between legal and extralegal norms, which is a decision-making process with the potential to expand judicial authority over socially significant disputes.

This article examines the connections between existing democratic deficits in law and contemporary democratic backsliding processes. To undermine the democratic process, present-day autocrats employ various legal strategies, including enacting new legal institutions (such as constitutional amendments or key statutory reforms) or manipulating existing ones. Focusing on a legal legacy of military rule in Turkey, the Specially Authorized Courts, this study argues that in consolidating power, autocrats also capitalize on pre-existing authoritarian zones within legal systems. In Turkey’s case, the AKP government has leveraged the exceptional procedures of Specially Authorized Courts to silence adversaries while simultaneously framing its reforms to the structure of these courts and the trials held at these courts as efforts to democratize the country and eradicate authoritarian legacies. As a result, the AKP masked its repressive actions behind a narrative of democratization in the early stages of Turkey’s democratic regression. Overall, the article presents both the coercive and legitimating uses of pre-existing “zones of authoritarianism” in law in contemporary processes of democratic backsliding. In doing this, it highlights how aspiring autocrats exploit the histories embedded in legal institutions to obscure their repressive actions.

This article theorizes China’s Charity Law as a staged legal architecture that institutionalizes symbolic governance through sequenced design: from normative logic, to operational mechanism, to statutory codification. Based on comparative ethnographic fieldwork in Shanghai and Chongqing (2021–2023), this article develops a three-part model of interface legality. First, it conceptualizes legality as a symbolic infrastructure of legitimacy budgeting—the institutional logic through which symbolic control is organized without procedural closure. Second, it analyzes triadic discretion as the operational logic of this system, where codified law, bureaucratic modulation, and organizational alignment interact as a choreography of relational governance. Third, it traces how this discretionary system, developed in practice after the 2016 enactment, was codified into law as structured unfulfillability—embedding impossibility into legal form to sustain reputational suspense. These mechanisms are not pathologies of implementation but institutional features of symbolic governance. By connecting the Charity Law’s expressive design to its affective operations and strategic incompletion, this article contributes to sociolegal scholarship on staged legality by revealing how institutional logic, operational rhythm, and statutory design interlock to codify symbolic governance in contemporary lawmaking.