Publication: How Can Judges Challenge Dictators and Get Away With It?
Loading...
Date
2021-04-13
Authors
Advisor
Court
Journal Title
Journal ISSN
Volume Title
Publisher
SSRN
Defense Date
Metrics
Citation
Abstract
The literature on constitutional courts in authoritarian or hybrid regimes typically suggests that judges who challenge such regimes in high-stakes cases risk sub-stantial political backlash. Accordingly, some compar-ative constitutional law scholars argue that courts should develop strategies such as judicial avoidance or weak judicial review practices to prevent a clash with the governing regime. This Article suggests that those strategies are unnecessary where courts are able to preserve or promote democratic values without incur-ring backlash, and proposes one alternative strategy. Where feasible, judges should prefer this case-specific confrontational tactic to survival strategies, such as weak judicial review or constitutional avoidance. For this strategy to be successful, judges must identify and predict the regime’s expected costs of disobeying a ju-dicial decision. If the projected costs are high enough, the regime’s leaders might prefer to comply with the ruling. One way in which this judicial strategy can work is by triggering a constitutional paradox. This term de-scribes the dilemma dictators face when they are forced to decide whether to support the constitutionally-rooted.
Unesco subjects
License
Attribution-NonCommercial-NoDerivatives 4.0 International
School
IE Law School
Center
Keywords
Citation
Verdugo, S. (2021). How Can Judges Challenge Dictators and Get Away with It?. Columbia Journal of Transnational Law, 59. http://dx.doi.org/10.2139/ssrn.3660179.