This chapter draws on examples from Brazil (1964-1985), Chile (1973-1990),
China (1990-present), Egypt (1979-present), Indonesia (1986-1998), Mexico (1926-
2000), the Philippines (1972-1986), Franco’s Spain (1936-1975), and several other cases
to challenge our understanding of the role of courts in authoritarian states. The cases
reveal that authoritarian leaders often times make use of judicial institutions in order to
counteract dysfunctions that characteristically plague their political systems.
Courts are
used to facilitate commerce, strengthen administrative compliance within the state’s own
bureaucratic machinery, promote elite cohesion, reduce the political cost of controversial
reforms, and bolster a regime’s claim to “legal” legitimacy. However, the cases reviewed
here also indicate that judicial institutions almost never advance the interests of
authoritarian rulers in an unambiguous and straightforward manner. Rather, courts
inevitably serve as “dual-use” institutions, simultaneously consolidating the functions of
the authoritarian state while paradoxically opening new avenues for activists to challenge
regime policy. These courts often become the most important focal point of state-society
contention in the formal political arena.
It is important to stress at the outset that clearly not every authoritarian regime
will choose to empower administrative or constitutional courts. In fact, many regimes are
likely to use criminal and state security courts alone for the political and social control
functions that we take as a given in non-liberal polities. Other regimes prefer arbitrary or
even completely non-institutionalized legal systems as a purposive strategy to instill fear
The claim here is simply that a subset of institutionalized, bureaucratic-
authoritarian states
face a common set of pathologies inherent to that regime type. If
9
Common examples of regime dysfunction include the inability of authoritarian leaders to provide credible
commitments to property rights and the difficulty of adequately monitoring the state’s own bureaucracy,
but many more are provided later in this chapter.
10
Saddam Hussein’s Iraq, Cambodia under the Khmer Rouge, and Mao’s China are examples.
11
The term “bureaucratic-authoritarian state” is not used in this study in the same fashion that Guillermo
O’Donnell used the term to describe the post-populist authoritarian of Latin America in the 1970s and
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Convention