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The Politics of Prosecuting Genocide and War Crimes in Asia  

John Ciorciari

Delivering justice for genocide, war crimes, and other mass atrocities inevitably presents steep political challenges. That has certainly been true in Asia, where relatively few such international crimes have been prosecuted. Many Japanese were tried for war crimes following the Second World War, but for decades thereafter, the region saw only a few ill-fated efforts to advance justice for mass crimes. Some political space for accountability opened after the Cold War, enabling the creation of tribunals in Timor-Leste, Cambodia, and Bangladesh to address some of the many instances of impunity in Asia. Some observers have welcomed these trials as important efforts to advance accountability in a region rife with impunity. Still, the design and performance of these tribunals have reflected the difficulty of subjecting politically empowered or protected actors to justice. In each instance, trials have focused on suspects defeated at the ballot box or on the battlefield, prompting charges of victor’s justice. In other cases, including Indonesia, Sri Lanka, and Myanmar, even mounting an accountability process has proven a formidable challenge. In a region where Westphalian sovereignty and the norm of noninterference are strong, the will of incumbent domestic authorities remains the political linchpin for accountability efforts. In Asia as elsewhere, prosecuting international crimes requires exploiting windows of political possibility, although typically at the cost of accepting highly selective justice.

Article

Legal Repression in Russia  

Katerina Tertytchnaya and Madeleine Tiratsoo

Contemporary authoritarian regimes use the law in order to stifle their rivals’ ability and willingness to challenge the state. Research has investigated the conditions that make legal repression more likely in electoral autocracies and advanced our understanding of the ways in which legislation may be used for repressive ends in these settings. To a lesser extent, studies have also explored the consequences of legal repression in nondemocracies, focusing on its impact on dissent, opposition leaders, protesters, and civil society. This article discusses how, in Vladimir Putin’s Russia, the law has been used to exercise political power vis-à-vis the opposition. Since the early 2000s, the Russian authorities have used legislative channels to adopt and refine laws and regulations aimed at hindering protest and inhibiting the development of an independent civil society. The discussion of the Russian case contributes to comparative research on legal repression and authoritarian politics in various ways. First, it offers important insights into the direct and indirect consequences of legal repression on dissent, the development of civil society, and public opinion toward groups targeted by legal repression. Second, the study of Russia illustrates how institutional capture and power consolidation facilitate the adoption and implementation of repressive legislation. Finally, the Russian case advances our understanding of the dynamic nature of legal repression. Reforms to laws regulating protest and civil society in Russia showcase how domestic and external events may cause legal repression to escalate. The article concludes by identifying fruitful avenues for future research on legal repression.

Article

Russian Legal System and Use of Law  

Kathryn Hendley

The Russian legal system has a spotty reputation, both domestically and internationally. The distrust stems from well-publicized cases involving enemies of political or economic elites in which the outcome in favor of the elites is obviously predetermined. Coexisting with such cases are millions of mundane cases in which judges adhere scrupulously to the statutory law. This sort of legal dualism is not uncommon under authoritarianism. Russia’s constitution reflects this dualism. Its relevance to daily life and its capacity to constrain arbitrary state actions is questionable. Adopted in 1993, it proclaims Russia to be a state governed by the rule of law and includes a chapter with a comprehensive list of rights guaranteed to citizens which cannot be changed without convening a constitutional assembly. The constitutional court, which is a post-Soviet institutional innovation, is charged with ensuring compliance with the constitution. Amending the constitution requires consent from both the national legislature and two-thirds of the regional legislatures. The electoral dominance of the political party associated with Vladimir Putin has made this seemingly high threshold for amendments easily achievable. He has bent the constitution to his political will with multiple amendments, culminating in a set of over 100 amendments approved in 2020. The use of courts by Russian citizens and businesses has increased steadily during the post-Soviet period. As a rule, disputes are handled quickly and inexpensively. Even so, litigating is not the preferred option; Russians typically end up in court only when informal negotiations fail. As a rule, they go to court to solve practical problems rather than to advance issues of principle. The courts’ dockets are dominated by civil claims, such as family law disputes and various forms of debt collection. The straightforward nature of the procedural rules allows many litigants to represent themselves. In criminal cases, which are fewer, defendants are required to be represented by a licensed attorney (advokat). The state covers the cost of legal representation for the poor. Litigants who are dissatisfied with the outcomes of their cases can pursue appeals, culminating in the Russian Supreme Court. Citizens who believe that officials have violated their rights can pursue their claims in the stand-alone constitutional court, whose decisions serve as binding precedent. The post-Soviet era has witnessed wide ranging reforms to the legal system. Some were aimed at depoliticizing the courts. Judges are selected by a professional council dominated by judges that assesses candidates’ knowledge of law and appropriateness for the bench. They enjoy life tenure, subject to removal for cause—a process that is occasionally hijacked to remove judges who fail to toe the line in political cases. The reforms also sought to ease the heavy workload of judges by introducing a form of plea bargaining in criminal cases and opening the door to a type of summary judgment in civil cases in which defendants have conceded their culpability.

Article

Judicial Dissent in Collegial Courts: Theory and Evidence  

Nuno Garoupa and Catarina Santos Botelho

In collegial courts, disagreements are inevitable. Are these disagreements advantageous or disadvantageous for lawmaking? Why, when, and how do judges decide to disagree with each other? The literature about collegial courts includes extensive normative and positive theories about separate opinions as well as how these kinds of decisions are made. Scholars offer different explanations based on distinct frameworks: a cost–benefit analysis (within rational-choice theory), the principal–agent model, and via legal culture. By considering the complexity of separate opinions in style, substance, collegiality, and frequency, it is possible to find compromises between both (normative and positive) strains of the literature. These compromises reflect a fundamental divergence between private (individual) and social motivations to promote separate opinions.

Article

Punishment and Social Control in Historical Perspective  

Michele Pifferi

Punishment has historically functioned as a key factor of social control. At different times, its mechanisms, techniques, and purposes have varied significantly, changing the authority and legitimacy of those who have sought to shape and govern a social order. The sociological notion of social control elaborated at the beginning of the 20th century refers to multiple elements that cannot simply be reduced to law, criminal law in particular. However, especially after the revisionist turn of the 1970s, the idea of social control as a coercive response to deviant behaviors through penal and institutionalized mechanisms has made inroads into research on the history of criminal justice. At first, the origins and development of prisons in late modernity as models of punishment in place of medieval corporal chastisements were scrutinized. The penal shift from the body to the soul, beneath its rhetoric of rationalization and humanization, was driven by conscious projects for controlling and disciplining a changing society by means of institutions of confinement. Although this interpretation was occasionally criticized, it contributed to the development of a critical historical analysis of criminal law in which the notion of social control can be profitably applied to the study of different periods and features of the penal apparatus. A first example is the age of medieval ius commune (12th–16th centuries), when emergent sovereign entities characterizing the pluralistic political scenario before the formations of modern states extensively resorted to a strategic use of criminal law to impose their hegemonic powers. A second case is penal modernism. In the last decades of the 19th century, when state monopolies of violence were undisputed and imprisonment was largely imposed, criminological positivism brought about a rethinking of the rationale of punishment based on the idea of social defense, which also implied a reconceptualization of criminal law as a means of social control.

Article

The Criminal Justice System in Mexico  

Hannah Baron and Matthew C. Ingram

The criminal justice system in Mexico underwent a major constitutional reform to criminal procedure in 2008. The reform, alongside a transition to electoral democracy, followed a long period of authoritarianism in which criminal procedure served basic repressive functions in service to the regime. The reform has had a formal, de jure impact on the justice system, as well as more practical, de facto effects on the implementation of justice. It has also touched on every aspect of the criminal justice system, from police to prisons, and many elements of the reform promised to strengthen criminal justice with the aim of aligning institutional design and practices with principles of democratic governance and the rule of law. However, the reform’s implementation has been uneven and incomplete. Several factors helped implementation, and others continue to hinder it. Some legal practitioners, scholars, and activists pushed for the reform, although, unsurprisingly, it has been challenging to advocate for due process and the rights of the accused among both elites and the public amidst criminal wars and persistently high levels of violence and insecurity. The forward and backward movement of criminal procedure reform is an important part of the liberalizing and “illiberalizing” dynamics of democracy in Mexico. These tensions within the criminal justice system in Mexico resonate with larger literatures in politics, law, and socio-legal studies on due process, procedural justice, judicial empowerment, the causes and consequences of institutional change, and, most broadly, democratization, the quality of democracy, and the rule of law.

Article

Public Reason and Contemporary Political Theory  

Steven Wall

The publication of John Rawls’s Political Liberalism put public reason squarely on the agenda of contemporary political theory. Ever since, it has been a central topic in the field. Although Rawls developed a distinctive account of public reason, his account is but one among many. Indeed, some commentators have insisted that public reason is a very old notion, one that can be found in the political writings of Hobbes, Locke, Rousseau, and Kant, for example. Public reason has a distinctive subject matter. It applies to the common good of a modern political society and the political institutions that serve that common good, and it contrasts with forms of reasoning that apply to less inclusive associations and communities that exist within a modern political society, such as churches, voluntary clubs, or professional associations. Public reason also contrasts with applications of reason that are not transparent and/or acceptable to adult citizens of modern political societies. The demands of transparency and acceptability have proven to be complex and contentious, and rival articulations of these notions have generated rival accounts of public reason. Public reason informs public political justification, and proponents of public reason often hold that public, political justification of at least the fundamental political arrangements of a political society is necessary for its political order to be legitimate. The reasons for insisting on public reason and the reasons for rejecting it are diverse. Common to all defenses of public reason is the thought that it represents a fitting response to the fact of intractable disagreement in modern political societies.

Article

Amicus Curiae Briefs in the Supreme Court  

Richard L. Pacelle, Jr.

The decisions of the U.S. Supreme Court are the law of the land and create precedents that bind lower courts and the justices. The impact of any Supreme Court decision is seldom confined to the two parties in the case. This presents two dilemmas. First, how can the Court accurately gauge the effects of its decision beyond the two parties? Second, for groups anxiously awaiting a decision that is going to impact their future, how do they convey their views to the justices? Perhaps the best solution to both is the amicus curiae (friend of the court) brief. Groups file such briefs to provide the Court with expertise, to expand or contract the issue in the case, and to provide an informal tally of public opinion. The amicus briefs serve the purposes of the justices as well. For their part, justices have a tremendous amount of work and a limited staff of clerks to help them. They are cognitive misers who cannot process all the relevant information they need and thus rely on cues and heuristics to help them make reasonably informed decisions. The existing scholarship provides a window into the growth of the use of amicus briefs and their impact on decisions. The use of the amicus brief also has important implications for representation and political participation. It can provide an entry to the system for groups that otherwise might lack access. The dramatic rise in the use of amicus briefs in the Supreme Court has altered the dynamics of decision making and provides the research agenda for the next round of studies.

Article

The Crisis Cycle  

Christer H. Pursiainen

While crisis management is a well-developed institutionalized activity in public administration and private organizations, it is less developed and notably fragmented theoretically. Without any grand theories, the field is characterized across a range of disciplines by middle-range theories and discourses on one element of the process or another. These discourses seldom communicate with each other and effectively develop in isolation. The result is a fragmented field of theoretical concepts. The traditional “crisis management cycle” nonetheless provides a holistic framework of sorts for both theoretical and practical reflection, including pre-crisis, during-the-crisis, and post-crisis components. Capturing the salient themes of crisis management, this framework is useful in identifying the most important middle-range scholarly debates within the field. Through its holistic and almost all-encompassing scope of existing and potential new dimensions in crisis research, the crisis management cycle also lends credence to the perspective that the field will evolve from its current multidisciplinary character towards more genuinely interdisciplinary scholarship.

Article

The Impact of Constitutional Courts in Asia  

Chien-Chih Lin

Courts around the world have become more and more influential, and Asian courts are no exception. The effects of Asian constitutional courts span all political, social, and economic areas and fall into five main categories: (1) consolidating democracies, (2) exacerbating political chaos, (3) perpetuating authoritarianism, (4) facilitating economic development, and (5) spurring social change. Politically, constitutional courts in many Asian countries have helped consolidate fledgling democracies by entrenching constitutional principles, by facilitating the disbandment of unconstitutional parties, by promoting a level political playing field, by permitting the impeachment of authoritarian heads of state, and by minimizing religious clashes. Judicial intervention, however, may spawn unwanted results when it fails to hammer out a solution that facilitates constitutional functioning. Worse still, judicial intervention may perpetuate authoritarian reign. Economically, an efficient and independent judiciary usually signals a government’s commitment to property protection, which is a foundation of economic development, including foreign investment. This principle, interestingly enough, applies to autocracies as well as to democracies. Socially, judicial decisions may either spearhead social change or plant the seeds of future progress. Indeed, decisions unfavorable to petitioners can trigger, in ordinary people, a profound awareness of rights, resulting in even more litigation. Notably, these five types of effects are not necessarily mutually exclusive and are, in some scenarios, complementary. For example, a capable court may simultaneously facilitate economic development and undergird dictatorships. Furthermore, these effects are a function of three interdependent factors: the scope of judicial powers, the degree of judicial activism, and the response of audiences. Other things being equal, the more powerful and active a court is, the more likely its decisions will be able to generate repercussions, thereby strengthening the judiciary. To be sure, other things are not always equal in reality, and these factors are endogenous to a considerable extent. Moreover, the effects of constitutional courts do not remain constant, as political environments in which they are embedded are volatile. Therefore, the relationships between the five judicial effects and the three interdependent factors are rather dynamic. Although constitutional courts in Asia have become much more influential in general since the 1990s, the growth in their judicial effects has not necessarily been a blessing. Sometimes when the decisions of Asian courts have crossed lines that politicians deem inviolable, the courts have encountered various degrees of political revenge. To navigate the storms of political retaliation provoked by controversial judicial decisions, many constitutional courts—particularly those in democratizing Asian states—must steer a middle path between obedience and recalcitrance.