the ruling regime. The following statement by one of the most frequently referenced
works in the new scholarship on the judicialization of politics illustrates once again our
understanding of courts in authoritarian regimes:
It is hard to imagine a dictator, regardless of his or her uniform or ideological
stripe, (1) inviting or allowing even nominally independent judges to increase
their participation in the making of major public policies, or (2) tolerating
decision-making processes that place adherence to legalistic procedural rules and
rights above the rapid achievement of desired substantive outcomes. The
presence of democratic government thus appears to be a necessary, though
certainly not a sufficient, condition for the judicialization of politics.
Such caricatures of authoritarian regimes tend to produce binary understandings
of judicial politics across regime type. One is led to believe that democratic states enjoy
judicial independence, but authoritarian states do not; courts in democratic states preserve
citizens’ rights, but courts in authoritarian states do not. To be sure, most scholars of
judicial politics have few illusions about the ambiguities of law and legal institutions in
democratic settings. But when constructed as a stark dichotomy, even one who is
familiar with the significant shortcomings and institutionalized miscarriages of justice in
U.S. courts might be tempted to indulge momentarily in a false sense of complacency.
Upon regaining sobriety, it is important for scholars to question not only the “myth of
rights” in democratic settings, but also our simplistic understandings of the functions of
rule of law institutions in authoritarian states.
The same nuanced understanding that law
and society work brings to bear on courts as contested sites in democratic polities is
largely missing from our knowledge of judicial struggles in authoritarian polities.
7
Neal Tate, “Why the Expansion of Judicial Power” in C. Neal Tate and Torbjorn Vallinder, eds., The
Global Expansion of Judicial Power (New York: New York University Press, 1995), p. 28. It is interesting
to note that in a different forum, Tate himself observed that the “place and function of courts in
authoritarian regimes is too little discussed.” See, Neal Tate and Stacia Haynie, “Authoritarianism and the
Functions of Courts: A Time Series Analysis of the Philippine Supreme Court, 1961-1987,” Law and
Society Review, v. 27 (1993).
8
Stuart Scheingold, The Politics of Rights: Lawyers, Public Policy, and Political Change (New Haven:
Yale University Press, 1974).
4
Convention