effectively stamp out corruption unless they are independent from the political and
bureaucratic machinery that they are charged with supervising and disciplining. The
strategy of “delegation by authoritarian institutions” will not divert blame for the
abrogation of populist policies unless the courts striking down populist legislation are
seen to be independent from the regime. And finally, regime legitimacy derived from a
respect for rule of law institutions also rings empty unless courts are perceived to be
independent from the government. Not all bureaucratic-authoritarian regimes will
empower courts to capitalize on the functions they can perform, but those that do will
have created a uniquely independent institution with public access in the midst of an
authoritarian state.
Legal Mobilization in Authoritarian Settings: Small Arms Fire in a Rights Revolution?
Despite the regime-supporting functions that judicial institutions perform, their
relative autonomy and their position vis-à-vis society gives courts the potential to act as
“dual-use” institutions through which activists can challenge the state. Groups that
engage the courts might include human rights organizations, opposition activists,
business associations,
legal professional associations, and other organizations in civil
society. Courts represent a crucial avenue for these actors to challenge regime
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Support from the business community is contingent upon a number of exogenous factors such as the
structure of the business community. On a group level, firms have an interest in judicial systems that are
fair, efficient, and reliable in order to benefit from stable and predictable regulation of business affairs,
dependable contract enforcement mechanisms, and the protection of property rights vis-à-vis the state.
Throughout history there are numerous examples of how the development of local, national, and
transnational legal systems went hand in hand with the interests of expanding business elites. [For
examples, see Michael E. Tiger and Madeleine Levi, Law and the Rise of Capitalism (New York: Monthly
Review Press, 1977); Yves Dezalay and Bryant Garth, Dealing in Virtue: International Commercial
Arbitration and the Construction of a Transnational Legal Order (Chicago: The University of Chicago
Press, 1996)] However, if firms come to the conclusion that it is more efficient to resort to corruption, or if
they have special access to political power-holders, firms can have deleterious effects on judicial
independence. The more that corruption and crony capitalism exists within a given legal system, the more
perverse are the incentives at the firm level to secure favorable rulings through bribery. But business
support for judicial independence and integrity often hinges on the ability of firms to overcome their own
collective action problems.
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Convention