Week 1
- Moustafa, “Law and Courts in Authoritarian Regimes,” 2014
- Solomon, “Law and Courts in Authoritarian States,” 2015
the essence of authoritarianism in its various forms (including competitive authoritarianism and so-called hybrid regimes) lies in the concentration of political power in the hands of an autocrat or an oligarch.
defining characteristic of “rule of law” (ROL) vs. with “rule by law,” i.e. the exercise of political control through law
Solomon: the law as an institutionalized constraint on the power of rulers/political authority as well as an instrument/tool of rule
key functions of law in authoritarian political contexts
Moustafa: (a) exercise state power vis-a-vis opposition, (sidelining political opponents (b) advance administrative discipline within state institutions, (principal-agent or center-local control (c) maintain cohesion among various factions within the ruling coalition, (d) facilitate market transitions, (e) contain majoritarian institutions through authoritarian enclaves, (f) delegate controversial reforms, and (g) bolster regime legitimacy (i.e., law as ideology)
Solomon: (a) an instrument of rule (b) the cultivation of legitimacy for the regime (c) the promotion of administrative accountability (d) the promotion of trade and foreign investment
four models of courts in authoritarian political contexts/variation in the relationship between courts and political leaders (Solomon):
1 the disempowered court that is in the ruler’s control (minimally deals with private matters and hardly anything else)—rule by a political party and/or with a discrete ideology
2 the fragmented court that is independent and protected but powerless—personal dictatorship
3 the contested court whose relative independence and politically meaningful jurisdiction can allow rulings against regime interests—older, stable regimes where there is some (liberalizing) group pushing for reform
4 the formally independent and empowered court that is nevertheless aligned with regime interests—21st and up-to-date (informal bureaucratic rules thro performance evaluation systems and hard targets
China - a blend of a fragmented legal system and one governed by informal practices