In Search of Judicial Legitimacy: Criminal Sentencing in Vietnamese Courts

Abstract

How do authoritarian courts, conventionally viewed as weak legal actors, build legitimacy? Inspired by Ernst Fraenkel’s concept of the “dual state” and building on Richard Fallon’s framework of judicial legitimacy that undergirds democratic courts, this Article seeks to operationalize the nebulous concept of legitimacy as related to authoritarian judiciaries. While Fallon’s tripartite framework of sociological-moral-legal legitimacy provides an insightful typology on democratic courts’ legitimation sources, it does not (and is not meant to) capture the undercurrents of authoritarian courts, many of which lack independence and struggle to build institutional capacity. This Article extends Fallon’s framework to courts in authoritarian regimes by proposing a fourth dimension — interbranch legitimacy — that texturizes the relationship between authoritarian courts and the political actors on whom these courts depend for prestige and resources. Using a multi-method empirical inquiry, this Article demonstrates how this extended framework operates in one such authoritarian context — Vietnam. By taking an empirical and comparative approach, this Article seeks to contribute to both the theory and practical discourse on authoritarian legality, rule of law, and comparative law.

Keywords: Authoritarianism, Judicial Legitimacy, Rule of Law