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Rule By Law
Scholars have generally assumed that courts in authoritarian states are pawns of their regimes, upholding the interests of governing elites and frustrating the efforts of their opponents. As a result, nearly all studies in comparative judicial politics have focused on democratic and democratizing countries. This volume brings together leading scholars in comparative judicial politics to consider the causes and consequences of judicial empowerment in authoritarian states. It demonstrates the wide range of governance tasks that courts perform, as well as the way in which courts can serve as critical sites of contention both among the ruling elite and between regimes and their citizens. Drawing on empirical and theoretical insights from every major region of the world, this volume advances our understanding of judicial politics in authoritarian regimes.
390 pages, Paperback
First published January 1, 2008
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About the author
Tom Ginsburg
33 books25 followersTom Ginsburg is Leo Spitz Professor of International Law, Ludwig and Hilde Wolf Research Scholar and Professor of Political Science at The University of Chicago Law School.
Tom Ginsburg focuses on comparative and international law from an interdisciplinary perspective. He holds BA, JD, and PhD degrees from the University of California at Berkeley. One of his books, Judicial Review in New Democracies (Cambridge University Press 2003) won the C. Herman Pritchett Award from the American Political Science Association for best book on law and courts. He has served as a visiting professor at the University of Tokyo, Kyushu University, Seoul National University, the Interdisciplinary Center Herzliya, the University of Pennsylvania, and the University of Trento. He currently co-directs the Comparative Constitutions Project, an effort funded by the National Science Foundation to gather and analyze the constitutions of all independent nation-states since 1789. Before entering law teaching, he served as a legal adviser at the Iran-U.S. Claims Tribunal, The Hague, Netherlands, and consulted with numerous international development agencies and foreign governments on legal and constitutional reform.
Tom Ginsburg focuses on comparative and international law from an interdisciplinary perspective. He holds BA, JD, and PhD degrees from the University of California at Berkeley. One of his books, Judicial Review in New Democracies (Cambridge University Press 2003) won the C. Herman Pritchett Award from the American Political Science Association for best book on law and courts. He has served as a visiting professor at the University of Tokyo, Kyushu University, Seoul National University, the Interdisciplinary Center Herzliya, the University of Pennsylvania, and the University of Trento. He currently co-directs the Comparative Constitutions Project, an effort funded by the National Science Foundation to gather and analyze the constitutions of all independent nation-states since 1789. Before entering law teaching, he served as a legal adviser at the Iran-U.S. Claims Tribunal, The Hague, Netherlands, and consulted with numerous international development agencies and foreign governments on legal and constitutional reform.
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Displaying 1 - 3 of 3 reviews
May 15, 2012
Conventional wisdom posits that courts in authoritarian regimes are simply the agents of the regime that lack independence and have no or minimal effect on political life. In this edited volume, Tom Ginsburg and Tamir Moustafa question this assumption and clearly show how and why courts matter in authoritarian regimes, and when and why regimes use courts. Edited volumes are a necessary evil of the discipline and oftentimes miss the mark with broad coverage and uneven themes. This volume, however, is an exception; it touches on a number of key topics while remaining conceptually tight. It demonstrates that courts are indeed key players in certain authoritarian regimes and remain pertinent to political life overall. More significantly, it highlights the diversity of courts in various authoritarian regimes, making the need for future scholarship not only obvious but necessary.
Studying courts in authoritarian regimes is a useful exercise for several reasons. On occasion courts are used to further the interests of the regime but paradoxically they also convert into “important sites of political resistance” (p.2) as in Egypt (Moustafa, Chapter 5) or in Uganda and Zimbabwe (Jennifer Widner and Daniel Scher, Chapter 9). Second, courts provide another avenue by which to study a number of political dynamics in an environment that lacks transparency. Courts almost always leave a paper trail. Though the legal decisions and processes may require some analysis and interpretation, the paper trail allows for process-tracing and the opportunity to study internal regime dynamics and societal contentions. For example, Pierre Landry (Chapter 8) utilizes surveys to show the general development of norms and institutional diffusion in post-Mao China. And third, courts are a useful way to learn about the expansion and contraction of judicial power not only within authoritarian regimes but in general. For example: Ginsburg (Chapter 2) shows that using administrative law creatively is a rational choice by regimes and does not necessarily conflict with other goals that the regime has. An expansion of judicial power, however, may create an opening for opponents of the regime to use the courts as well. In other words, expansion of judicial power may lead to the “judicialization of governance,” generally an undesired outcome of authoritarian regimes. Robert Barros (Chapter 6) highlights the problems in Argentina and Chile that are associated with courts practicing “partial constitutionalism,” which is an idea that the judiciary upholds a part of the constitution, such as the guarantees of rights, while certain core institutions of the constitution like an elected legislature have been suppressed by an autocratic centralization of power (p.156). Such a practice led to judicial failure. And Peter H. Solomon, Jr. describes how three different regimes in Russia empowered courts by establishing sensitive jurisdiction in addition to needing them for basic functions (Chapter 10).
Rule of Law problematizes two dichotomies. The first is that democracy institutionalizes uncertainty because elected leaders of democracies do not know the outcome of elections while dictators of regimes do. Yet, elected leaders have created security courts for the same reasons dictators have: the security courts ensure the desired outcomes while maintaining a sense of legality, which is essential for political legitimacy. Anthony Pereira (Chapter 1) examines the use of security courts in Brazil during 1964–1985, Chile during 1973–1990, and Argentina during 1976–1983 and then uses the United States after 9/11 to show how democracies may actually be borrowing certain institutional mechanisms from regimes. Hootan Shambayati (Chapter 11) compares two unlikely countries, Turkey and Iran, and illustrates how the regimes in both countries are unable to guarantee the outcome of elections and have resorted to using somewhat neural institutions like courts. Using courts, however, may also not guarantee outcomes, as was the case in Egypt, yet regimes still turn to them in order to mitigate certain dysfunctions (Moustafa, Chapter 5). Overall, courts in authoritarian regimes have similar functions as their counterparts in democratic states, such as strengthening the regime’s legitimacy, providing bureaucratic oversight, and facilitating trade and investment. In other words, judicial politics in regimes is a complex affair.
The second is that economic liberalization is linked to political liberalization. Gordon Silverstein (Chapter 3) illustrates how Singapore has effectively used the rule of law to make strides in economic development without establishing a liberal democratic political system. Silverstein states, “The rule of law may be a necessary precondition for liberal democracy, but liberal democracy is not necessarily the product of rule of law” (p.74). Hilton L. Root and Karen May (Chapter 12) also study the links between judicial systems and economic development and conclude that there is little reason to assume that judicial reform will lead to political liberalization. The rule of law though remains a rational and feasible policy for regimes. Yet, it may empower opponents to use the courts as well and challenge the regime as shown in several chapters of the volume.
Though intuitive, it is important to note that regimes sometimes deliberately weaken judicial institutions but for a variety of reasons that are intrinsically linked to the political and economic contexts of the regime. Beatriz Magaloni (Chapter 7) shows how the authoritarian regime in Mexico established the amparo court, an arbitrator by which citizens could challenge state abuses, but the regime limited the court’s jurisdiction and “constitutional space” (p.181), essentially creating a weak judicial system. Similarly, Lisa Hilbink (Chapter 4) shows how the apolitical judicial structure in Chile hindered judicial independence and led to judges working as “faithful agents of established power” (p.131). Time often works in the favor of regimes—mature regimes are more likely to use courts to further their goals despite some of the political costs associated with such a strategy (Ginsburg and Moustafa, p. 11–14).
Not surprising the volume is largely focused on Latin America. The case studies are intuitive; the region has a long history of military dictatorship and legality. Rule and Law is a uniquely rich volume with various in-depth case studies and analyses but it would have benefitted from another chapter focusing on a judicial system in Asia, such as Indonesia under Suharto or the lawyer movement in Pakistan while it remained under the control of General Pervez Musharraf.
In the concluding chapter, Martin Shapiro (Chapter 13) writes, “This project represents something of a high watermark in the study of law and courts in general and judicial review in particular” (p.326). It has not only highlighted the new developments in the field of study on constitutional courts and constitutional judicial review but has brought new attention to administrative review. Overall, it is an exceptional volume and should be required reading for all those interested in studying courts in any political system.
Studying courts in authoritarian regimes is a useful exercise for several reasons. On occasion courts are used to further the interests of the regime but paradoxically they also convert into “important sites of political resistance” (p.2) as in Egypt (Moustafa, Chapter 5) or in Uganda and Zimbabwe (Jennifer Widner and Daniel Scher, Chapter 9). Second, courts provide another avenue by which to study a number of political dynamics in an environment that lacks transparency. Courts almost always leave a paper trail. Though the legal decisions and processes may require some analysis and interpretation, the paper trail allows for process-tracing and the opportunity to study internal regime dynamics and societal contentions. For example, Pierre Landry (Chapter 8) utilizes surveys to show the general development of norms and institutional diffusion in post-Mao China. And third, courts are a useful way to learn about the expansion and contraction of judicial power not only within authoritarian regimes but in general. For example: Ginsburg (Chapter 2) shows that using administrative law creatively is a rational choice by regimes and does not necessarily conflict with other goals that the regime has. An expansion of judicial power, however, may create an opening for opponents of the regime to use the courts as well. In other words, expansion of judicial power may lead to the “judicialization of governance,” generally an undesired outcome of authoritarian regimes. Robert Barros (Chapter 6) highlights the problems in Argentina and Chile that are associated with courts practicing “partial constitutionalism,” which is an idea that the judiciary upholds a part of the constitution, such as the guarantees of rights, while certain core institutions of the constitution like an elected legislature have been suppressed by an autocratic centralization of power (p.156). Such a practice led to judicial failure. And Peter H. Solomon, Jr. describes how three different regimes in Russia empowered courts by establishing sensitive jurisdiction in addition to needing them for basic functions (Chapter 10).
Rule of Law problematizes two dichotomies. The first is that democracy institutionalizes uncertainty because elected leaders of democracies do not know the outcome of elections while dictators of regimes do. Yet, elected leaders have created security courts for the same reasons dictators have: the security courts ensure the desired outcomes while maintaining a sense of legality, which is essential for political legitimacy. Anthony Pereira (Chapter 1) examines the use of security courts in Brazil during 1964–1985, Chile during 1973–1990, and Argentina during 1976–1983 and then uses the United States after 9/11 to show how democracies may actually be borrowing certain institutional mechanisms from regimes. Hootan Shambayati (Chapter 11) compares two unlikely countries, Turkey and Iran, and illustrates how the regimes in both countries are unable to guarantee the outcome of elections and have resorted to using somewhat neural institutions like courts. Using courts, however, may also not guarantee outcomes, as was the case in Egypt, yet regimes still turn to them in order to mitigate certain dysfunctions (Moustafa, Chapter 5). Overall, courts in authoritarian regimes have similar functions as their counterparts in democratic states, such as strengthening the regime’s legitimacy, providing bureaucratic oversight, and facilitating trade and investment. In other words, judicial politics in regimes is a complex affair.
The second is that economic liberalization is linked to political liberalization. Gordon Silverstein (Chapter 3) illustrates how Singapore has effectively used the rule of law to make strides in economic development without establishing a liberal democratic political system. Silverstein states, “The rule of law may be a necessary precondition for liberal democracy, but liberal democracy is not necessarily the product of rule of law” (p.74). Hilton L. Root and Karen May (Chapter 12) also study the links between judicial systems and economic development and conclude that there is little reason to assume that judicial reform will lead to political liberalization. The rule of law though remains a rational and feasible policy for regimes. Yet, it may empower opponents to use the courts as well and challenge the regime as shown in several chapters of the volume.
Though intuitive, it is important to note that regimes sometimes deliberately weaken judicial institutions but for a variety of reasons that are intrinsically linked to the political and economic contexts of the regime. Beatriz Magaloni (Chapter 7) shows how the authoritarian regime in Mexico established the amparo court, an arbitrator by which citizens could challenge state abuses, but the regime limited the court’s jurisdiction and “constitutional space” (p.181), essentially creating a weak judicial system. Similarly, Lisa Hilbink (Chapter 4) shows how the apolitical judicial structure in Chile hindered judicial independence and led to judges working as “faithful agents of established power” (p.131). Time often works in the favor of regimes—mature regimes are more likely to use courts to further their goals despite some of the political costs associated with such a strategy (Ginsburg and Moustafa, p. 11–14).
Not surprising the volume is largely focused on Latin America. The case studies are intuitive; the region has a long history of military dictatorship and legality. Rule and Law is a uniquely rich volume with various in-depth case studies and analyses but it would have benefitted from another chapter focusing on a judicial system in Asia, such as Indonesia under Suharto or the lawyer movement in Pakistan while it remained under the control of General Pervez Musharraf.
In the concluding chapter, Martin Shapiro (Chapter 13) writes, “This project represents something of a high watermark in the study of law and courts in general and judicial review in particular” (p.326). It has not only highlighted the new developments in the field of study on constitutional courts and constitutional judicial review but has brought new attention to administrative review. Overall, it is an exceptional volume and should be required reading for all those interested in studying courts in any political system.
February 8, 2014
this book was originally recommended to me by a law school professor last semester, and I took time to read it last week. It was great and enlightening. Tom is absolutely an expert in authoritarian institutions. And this book collects 13 pieces by different authors who contribute ideas on the empowerment of judges in authoritarian states but from different perspectives. It will give people who are in this field useful suggestions on where to start.
October 30, 2022
This book outlines and builds upon the concept of authoritarian legality and how it can be understood/applied across contexts around the world. I am using this for a law and society course I'm teaching in 2022 and I think it will be a solid foundational text in our study of comparative legal systems.
Displaying 1 - 3 of 3 reviews