In the modern world, formal constitutions are ubiquitous as the legal foundation of the state, standing at the apex of the legal order. As they emerged in a North Atlantic context, constitutional law and the ideal of constitutionalism came to be associated with a liberal model of government in which the state, composed of its leaders and public officials, was limited by law. This model of a constrained government became encapsulated in the ideal of “rule of law”—distinguishing between autocratic systems that were ruled by “men,” on the one hand, and systems in which political leaders were constrained by law, on the other hand. In this model, the courts typically play a critical institutional role in keeping state power within constitutional boundaries. Although this “liberal” model of constitutionalism and the rule of law continue to dominate legal and political thought, the proliferation of postcolonial legal and political regimes, and competing understandings of government and the role of the state, have challenged the dominant liberal understanding of constitutions and the rule of law. Many of these challenges come from Asia, which encompasses a stunning variety of political regimes that shape the environment in which constitutionalism and the ideal of the rule of law acquire meaning. This makes Asia an ideal site from which to explore the contested notions of constitutions, constitutionalism, and the rule of law as powerful explanatory tools and, in some cases, important normative correctives to the liberal model.
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Constitutions and the Rule of Law in Asia
Maartje De Visser, Victor V. Ramraj, and Arun Thiruvengadam
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Federal and State Appellate Courts in the United States
Hayley Munir and Wendy L. Martinek
Appellate courts are part of both federal and state judiciaries. They serve to correct lower court errors but, more importantly, serve as key policymakers in their respective jurisdictions. The U.S. Supreme Court is the court of last resort in the federal system, though the U.S. courts of appeals (the primary intermediate appellate court in the federal system) is often the last stop for any federal appeal. Both are staffed by presidential nomination coupled with senatorial confirmation. The states exhibit considerable variation in the staffing, design, and function of their appellate courts. That variation encompasses staffing via appointive, electoral, and hybrid methods, as well organizational structures that may include more than one court of last resort (though the majority of states have only one such court) and may omit an intermediate appellate court (IAC; though the majority of states have at least one such court). Scholars know a great deal about the influences on decision making in the U.S. Supreme Court. They know less but still a considerable amount about how judges on the U.S. courts of appeals and state courts of last resort make decisions. Scholarly understanding of decision making on state IACs is quite limited.
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Human Rights
Kimberley Brownlee and Rowan Cruft
Human rights are claims that all human beings have to the protection of fundamental human needs, interests, and freedoms. Debates about human rights consider whether such rights exist, and if they do, whether they are necessarily institutional norms codifiable in law and correlated with government duties or are instead preinstitutional or natural in some sense. Debates about human rights focus on the moral and practical grounds for such rights, the subjects of human rights, the types of human rights—civil, political, social, material, collective—and the precise lists of rights that fall within these broad, overlapping types. Debates also address objections against human rights as a conceptual, normative, and practical framework. Objections focus on issues such as ethnocentricity, cultural imperialism, forfeitability, individualism, claimability, and an adversarial ethos, among others.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
