How Can Judges Challenge Incumbent Dictators and Get Away With It?
20 Pages Posted: 31 Jan 2019
Date Written: January 15, 2019
Judges that decide to challenge an incumbent authoritarian regime in high-stakes cases might face political backlashes unless the autocrats’ expected costs are high enough to persuade the dictators to obey the unfavorable judicial decisions. Although unlikely, this scenario is still possible. This essay shows that judges triggering a Constitutional Paradox against the regime may be able to push dictators to respect such rulings by using the institutions the incumbent regime had created against the autocrats’ interests. The Paradox is a dilemma that forces the dictators to decide whether to respect the rulings while supporting and enforcing the institutions they had established, or whether to disobey the unfavorable rulings while risking to divide the regime’s supporting coalition, harming their credibility and weakening the legitimacy and authority of their institutions. The Paradox raises the costs for ignoring those rulings, and those costs may be too high for the autocrats to accept. This essay uses the example of Judge Eugenio Valenzuela to explain how the Constitutional Paradox can take place. Judge Valenzuela was a member of the Chilean Constitutional Court in the ’80s and drafted a set of decisions that helped to advance the transition to democracy against the interests of the Pinochet regime. The Paradox helps to explain how the Chilean Court challenged the dictatorship and got away with it.
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