S7 Ep32: Courts in the Global South

How do courts work when they work well? You would expect them to be impartial, neutral, and consistent. In much of the Global South that is a tall order. 

So when courts fall short of it, are they failing?

Development institutions ask states to build strong courts on the North American and Western European model. Good governance follows, they argue. This model treats poorer, less democratic systems as deviations from a norm rather than as institutions doing different work.

Fiona Shen-Bayh (University of Maryland) joins Tim Phillips to review the evidence on what courts in the Global South actually do, and who they help. Where the state is weak, customary elders, NGOs, even rebel groups step in to adjudicate, and people often trust these forums more than the state's own courts. 

Taliban courts in Afghanistan upheld due process during civil war. Dictators sometimes build genuinely independent courts, because property rights attract investment and citizens' lawsuits tell the centre what local officials are doing.

The research behind this episode:

Rios-Figueroa, Julio, and Fiona Shen-Bayh. 2025. "Courts in the Global South." Annual Review of Political Science 28. 

To cite this episode:

Phillips, Tim, and Fiona Shen-Bayh. 2026. "Courts in the Global South." VoxDev Talks (podcast). 

Assign this as extra listening. The citation above is formatted and ready for a reading list or VLE.

About the guest

Fiona Shen-Bayh is Assistant Professor of Government and Politics, with a joint appointment at the College of Information Studies, at the University of Maryland. Her research spans authoritarian regimes, judicial politics, and the use of legal and judicial institutions as instruments of power, often drawing on digitised archives and text-as-data methods. Her book Undue Process: Persecution and Punishment in Autocratic Courts (Cambridge University Press) won the APSA-IPSA Theodore J. Lowi First Book Award, the Giovanni Sartori Book Award, and the Juan Linz Best Book Prize.

The paper is co-authored with Julio Rios-Figueroa, Professor in the Department of Law at the Instituto Tecnologico Autonomo de Mexico (ITAM), whose work spans comparative judicial politics, the rule of law, and empirical legal studies, with a focus on Latin America.

Research cited in this episode

The triad logic of conflict resolution. Drawn from Martin Shapiro's Courts: A Comparative and Political Analysis (1981). A court is effective when two parties appeal to a third to settle their dispute, and three conditions hold: the parties believe the third party is impartial; the third party is neutral, not predisposed to favour either side; and the rationale for the decision is consistent with existing norms, the idea of precedent. The review deliberately relaxes the assumption that courts are effective only when all three conditions are met.

The rule of law revival. The wave of good-governance programmes promoted by the United States and Western European governments and NGOs after the fall of the Soviet Union, presenting strong courts as a remedy for corruption, instability, and tyranny in the Global South.

The fallacy of legalism. The belief that creating law through statute, legislation, or precedent is enough to bring about social change. The phrase, from Sandra Joireman's work on property rights in Africa, names a habit of thought rooted in the Western experience, where the state has historically enforced property rights and contracts. In much of the Global South the absence of the state does not mean the absence of rules and order.

Stateness. The extent to which a state exercises authority across its territory: its monopoly on violence in the classic Weberian sense, but also the creation of law and the administration of public affairs. Where stateness is low, non-state actors fill the judicial vacuum.

Taliban and Islamic State courts. Recent fieldwork-based research finds that Sharia courts run by the Taliban in Afghanistan upheld notable degrees of due process and impartiality, offering predictability during civil war, and that the coercion associated with the Taliban featured in only a minority of the cases their courts heard.

Courts in authoritarian regimes. A growing literature shows what courts do for dictators: establish credible property rights that attract foreign capital; monitor administrative conflict, as in China, where citizens' grievances against the state feed information upward to the centre; and, at other times, repress opponents or legitimise the regime by delivering popular moral outcomes even against the letter of the law.

Political competition and judicial independence. Electoral competition can sustain independent courts in healthy democracies, partly because divided governments struggle to coordinate against unfavourable rulings. Under instability or an expected change of regime, the relationship can reverse: incumbents pack courts to entrench their interests before leaving, and judges may rule strategically to align with whoever they expect to hold power next, a pattern visible across Latin America.

Access to justice and legal mobilisation. Social transformation through courts depends on people developing a "legal conscience", an understanding of the law and how to use it, and on support structures outside the judiciary: civil society organisations, bar associations, prosecutors, lawyers, and human rights groups that help citizens bring and sustain claims.

Courts and democratic backsliding. Courts hold neither the purse nor the sword, which makes them easy targets for hostile rhetoric, legislative threats, pressure to resign, and court-packing. Courts that are neither impartial nor neutral can still stabilise a democracy while rival parties remain uncertain of each other's intentions, provided both still accept competitive elections. Once a party, especially an incumbent, abandons that commitment, there is little a court can do alone.

Digitised judicial data. The digitisation and free publication of court records across the Global South has opened large-scale, fine-grained study of everyday jurisprudence, useful to scholars and to the judges, lawyers, and litigants who can now see how the law works in their own context.