Law and Sentiments in Authoritarian Courts
Posted: 1 Aug 2019
Date Written: July 29, 2019
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
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