Lawyers in Authoritarian Regimes

by

Sida Liu, Gihad Nasr

• LAST MODIFIED: 31 July 2019
• DOI: 10.1093/obo/9780199756223-0276

Introduction

Lawyers arguably play critical roles in democracies—Alexis de Tocqueville already told us so after observing the American democracy in the 19th century. However, the legal profession’s social positions and political orientations in authoritarian regimes are ambiguous. Across the world, lawyers are frequently observed in the fight against arbitrary state power and for the basic legal rights of citizens and social groups. In the meantime, they are often regarded by the public as allies of elite politicians and ruling parties. The juxtaposition of those two contrasting images, as well as the limited access to research subjects, makes the social science study of lawyers in authoritarian regimes a challenging topic. This body of literature originated from the scholarly effort to “bring the state back in” to the Anglo-American sociology of professions, which had not taken politics seriously until the 1980s. From the 1990s on, political scientists, sociologists, historians, anthropologists, and legal scholars have examined a variety of authoritarian contexts in which lawyers interact with the state, civil society, religious and ethnic groups, and communities. This growing literature on lawyers in authoritarian regimes can be classified into five main clusters: (1) theoretical foundations; (2) historical studies; (3) lawyers and the authoritarian state; (4) lawyer mobilization and political change; and (5) judges and prosecutors.

Theoretical Foundations

The theoretical foundations for the study of lawyers in authoritarian regimes were originally laid out by comparative and historical sociologists. As part of the scholarly wave to “bring the state back in” since the 1980s, sociologists of the legal profession (e.g., Rueschemeyer 1986; Halliday, et al. 2007; Halliday, et al. 2012) developed theoretical perspectives for comparing legal professions cross-nationally, especially between Anglo-American and Continental legal systems and between democratic and authoritarian regimes. In the early 21st century, a new generation of theorists (e.g., Cheesman 2014; Ginsburg and Moustafa 2008; Moustafa 2014) who study authoritarian regimes in Africa and Asia proposed new theories for understanding lawyers and courts.

• Cheesman, Nick. “Law and Order as Asymmetrical Opposite to the Rule of Law.” Hague Journal on the Rule of Law 6.1 (2014): 96–114.

  DOI: 10.1017/S1876404514001031

  In this ground-breaking article, Cheesman contrasts the rule of law with “law and order” and argues that the two are asymmetrical opposites. Law and order, which often characterizes law in authoritarian regimes, is primarily concerned with eliminating restlessness through particularistic injunctions delivered administratively. By contrast, the rule of law is concerned with eliminating arbitrariness through general rules applied juridically.

• Ginsburg, Tom, and Tamir Moustafa. Rule by Law: The Politics of Courts in Authoritarian Regimes. Cambridge, UK, and New York: Cambridge University Press, 2008.

  DOI: 10.1017/CBO9780511814822

  This edited volume is the first and one of the most important collections of studies on courts in authoritarian regimes. It includes many chapters related to the study of judges and lawyers, some of which are reviewed in this bibliography. Theoretically, it presents five functions of courts in authoritarian regimes: (1) social control; (2) legitimation; (3) agent control and elite cohesion; (4) economic commitments; and (5) reform delegation.

• Halliday, Terence C. “Legal Freedoms: Struggle in the Theory of Legal Change in Asia.” Asian Journal of Law and Society 5.1 (2018): 233–246.

  DOI: 10.1017/als.2018.11

  This article is based on the keynote speech that Halliday delivered at the Asian Law & Society Association’s 2017 annual meeting in Taiwan. It provides a conceptual link between basic legal freedoms and the mobilization of the legal profession in the contexts of Asia and transnational legal orders.

• Halliday, Terence C., Lucien Karpik, and Malcolm Feeley, eds. Fighting for Political Freedom: Comparative Studies of the Legal Complex and Political Liberalism. Hart, 2007.

  Building upon a theoretical tradition of lawyers and political liberalism, this edited volume examines how the “legal complex,” consisting of lawyers, judges, prosecutors, and other legally trained occupations, drives advances or retreats from political liberalism. Some chapters in the book are reviewed in this bibliography.

• Halliday, Terence C., Lucien Karpik, and Malcolm M. Feeley, eds. Fates of Political Liberalism in the British Post-Colony: The Politics of the Legal Complex. Cambridge, UK, and New York: Cambridge University Press, 2012.

  This edited volume is the third book of the trilogy on lawyers and political liberalism edited by Halliday, Karpik, and Feeley. Focusing on former colonies of the British Empire, some of which became authoritarian regimes in various historical periods, it develops a typology of postcolonial orders (i.e., liberal-legal order, despotic order, and volatile order) and examines how lawyers and other legal professionals confront them.

• Moustafa, Tamir. “Law and Courts in Authoritarian Regimes.” Annual Review of Law and Social Science 10.1 (2014): 281–299.

  DOI: 10.1146/annurev-lawsocsci-110413-030532

  Following the tradition of comparative judicial politics, this article reviews literature on law and courts in authoritarian regimes. Moustafa provides an overview of law as an instrument of governance, the dynamics of legal mobilization, and strategies to contain judicial activism in authoritarian Asia, the former Eastern Bloc, Latin America, and Africa.

• Rueschemeyer, Dietrich. “Comparing Legal Professions Cross-Nationally: From a Profession-Centered to a State-Centered Approach.” American Bar Foundation Research Journal 11.3 (1986): 415–446.

  DOI: 10.1111/j.1747-4469.1986.tb00251.x

  This theoretical essay provides a state-centered approach for comparing legal professions cross-nationally and historically. It argues that the legal profession flourishes with two broad historical developments, namely the rise of capitalism and the formation of the modern state system. The theoretical perspective is a foundational one for thinking about lawyers and the state.