Authoritarian Regimes and Courts

Judicial Institutions and Administrative Compliance

In his seminal 1981 work, Courts, Martin Shapiro observed that judicial institutions are used as one of several strategies to consolidate discipline within the state's administrative hierarchy. Courts generate an independent stream of information on bureaucratic misdeeds, about which the central government would otherwise be unaware. Shapiro explained that the right of appeal is one mechanism that provides rulers with this information on administrative subordinates' performance. In this way, courts play “fundamental political functions” by acting as avenues “for the upward flow of information [and] for the downward flow of command” (Shapiro 1980: 643). This helps explain why even authoritarian regimes with little regard for civil liberties often preserve the right of citizens to have their day in court.

Empirical studies support this view. James Rosberg illustrated how Egypt's authoritarian regime built the institutional capacity and autonomy of administrative courts to bolster discipline within the state bureaucracy. Jennifer Widner observed the same dynamic in several East African countries, both before and after the region's democratic transitions. Similarly, during the six-decade stretch of one-party rule in Mexico, Joel Verner found that citizens were encouraged to use the courts for protection against arbitrary applications by capricious individuals staffing various state agencies. Randall Peerenboom explained that rulers see “administrative law as a way to rationalize governance, enhance administrative efficiency, and reign in local governments” (2002: 398). In all these cases, ruling regimes did not provide recourse to semiautonomous judicial institutions out of pure benevolence. Rather, these regimes used courts to better institutionalize their rule and to strengthen [Page 111]discipline within the state's burgeoning administrative hierarchy.

Judicial Institutions and the Maintenance of Elite-Level Consensus

In addition to monitoring bureaucratic compliance, rulers sometimes use courts to maintain elite cohesion within authoritarian regimes. It has long been noted that the Achilles' heel of many authoritarian regimes is the difficulty of maintaining consensus within the ruling coalition. Indeed, authoritarian leaders themselves are acutely aware that if they do not properly manage elite-level cleavages, authoritarian regimes can rapidly cannibalize themselves.

Augusto Pinochet's Chile (1973–1990) provides a lucid example of how constitutions have been used to formalize pacts among competing factions within authoritarian regimes and how judicial institutions are sometimes used to balance the competing interests among those factions. Robert Barros illustrated how the 1980 Chilean Constitution and the Constitutional Tribunal were explicitly designed to arbitrate between the four branches of the military, which were organized along distinct corporatist lines with strong, cohesive interests. In other cases, such as the regime that ruled Brazil from 1964 to 1985, the first military administration wished to institutionalize the rotation of power and codify concrete limits on presidential powers to prevent the regime from slipping into a personalistic form of authoritarian rule, or caudillismo. Brazilian courts, according to Anthony Pereira, gathered information on the security forces and provided a balancing mechanism to political leaders, effecting compromises between various regime factions.

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