Law and Sentiments in Authoritarian Courts

Posted: 1 Aug 2019

See all articles by Trang (Mae) Nguyen

Trang (Mae) Nguyen

Temple University Beasley School of Law; New York University School of Law; University of California Berkeley School of Law

Date Written: July 29, 2019

Abstract

What roles, if any, do emotions play in authoritarian courts? While courts and judges in Western legal ideology are often cast in a myth of iron-clad rationality, the opposite is assumed about the enterprise of judging in authoritarian contexts: at worst unprofessional and corrupt, at best beholden to situational justice and local norms at the expense of law. Using empirical methods, this paper explores the notion of fairness as an interplay between compassion and legality in one such judicial system — Vietnam. Taking advantage of recent publication of court cases, this paper analyzes a database of over 200 criminal decisions by the Vietnam Supreme People’s Court, supplemented by interviews with judges, court officials, and lawyers, to shed light on a core tenet of socialist legality — judging “with reason and sentiment” (“hợp tình hợp lý”). I focus on situations in which statutory laws require judges to balance multiple mitigating and aggravating factors in criminal sentencing. The goals are two-fold. First, by analyzing how judges weight these factors, I challenge existing literature’s view of judicial “sentiment” as extra-legal discretion, arguing instead that the law deliberately makes room for emotions as a way to bolster populist legitimacy. Second, as statutory laws allow judges leeway in balancing criminal sentencing factors, studying judicial decisions can reveal valuable information on how judges exercise discretion in a tightly controlled space.

Keywords: Comparative Legal Institutions, Judicial Discretion, Comparative Law, Authoritarianism, Asia

Suggested Citation

Nguyen, Trang (Mae), Law and Sentiments in Authoritarian Courts (July 29, 2019). Available at SSRN: https://ssrn.com/abstract=3428649

Trang (Mae) Nguyen (Contact Author)

Temple University Beasley School of Law ( email )

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Philadelphia, PA 19122
United States

HOME PAGE: http://https://www.law.temple.edu/

New York University School of Law ( email )

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New York, NY 10012-1099
United States

HOME PAGE: http://law.nyu.edu

University of California Berkeley School of Law ( email )

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Berkeley, CA 94720-7200
United States

HOME PAGE: http://law.berkeley.edu

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