Rule by Law: The Politics of Courts in Authoritarian Regimes
The Politics of Courts in Authoritarian Regimes
Edited by Tom Ginsburg
Edited by Tamir Moustafa
Publisher: Cambridge University Press
Print Publication Year: 2008
Online Publication Date:June 2012
Chapter DOI: http://dx.doi.org/10.1017/CBO9780511814822.009
It should not be surprising that authoritarian regimes seek to establish courts. The victims of the Moscow trials of the 1930s; political opponents in fascist Italy, Argentina, and Brazil in the 1970s, and in China the famous “gang of four” were all tried in formal courts, with the explicit support of their respective regimes. Authoritarian systems rely on courts because formal legal institutions are expected to bring legitimacy to decisions that may not be fair or equitable. These courts' jurisdiction is not limited to criminal or political cases. Courts handling civil, economic, and administrative cases exist in many authoritarian regimes as well.
What is surprising is the development of genuinely active and popular courts within an otherwise authoritarian system. Tate and Haynie (1993) are rather pessimistic about courts in authoritarian regimes, but others show that view is not always warranted. Argentinean judges tended to sympathize with the dictatorship, but their Brazilian counterparts did not, and used their position to undermine military rule (Osiel 1995). Spanish courts played an active role in the transformation of Francoist dictatorship and the eventual democratization of the regime (Giles and Lancaster 1989; Pinkele 1992; Toharia 1975). Without claiming that an authoritarian regime can establish a genuine “rule of law” as the term is widely understood in democratic societies, legal scholars and social scientists are compelled by the diffusion of formal legal institutions within authoritarian regimes to explain how (and preferably why) these courts do – in some instances – develop into credible institutions.
Reference Type: reference-list