Legal Authoritarianism

Discretionary decision-making in non-democracies is also reinforced by the use of vagueness in relevant laws that serve as the basis for clandestine authoritarian practices. Vague laws are those that “apply indefinitely to certain cases,” which can lead to vague legal rights and obligations.324 Vagueness, on the other hand, fosters discretion and clandestine authoritarianism. For example, legislation governing civil society organizations in Russia has been criticized as “incredibly vague.” 325 Similar objections have been raised against laws in Turkey326, Hungary327, Algeria, Azerbaijan and Ethiopia328 that have been used as mechanisms of clandestine authoritarianism. These laws function like a sword of Damocles, leaving relevant actors uncertain and concerned about the legality of their actions, and exposing them to the threat of punitive measures if they cross ill-defined or undefined boundaries.329 Cutler, B. L. (2008). Legal authoritarianism. In: Encyclopedia of Psychology and Law (Vol. 1, pp. 445-447).

SAGE Publications, Inc., dx.doi.org/10.4135/9781412959537.n171 In addition to democratic reforms, rhetoric invoking the rule of law, democracy or constitutionalism is often used to distract the public from undemocratic practices. Thus, in Turkey, the current President Erdoğan often repeats his grand vision of creating an “advanced democracy” in Turkey. [295] He also refutes criticism of controversial government measures, either by citing a constitutional or legal basis for the measure or by invoking comparative law and referring to a democratic country (mainly in the West) that implemented the same measure. For example, a series of constitutional amendments introduced by the Turkish Constitutional Court in September 2010 were adopted as part of a “democratisation package” designed to increase political participation in the appointment of judges and align the appointment process with liberal democracies such as Germany.296 In the broadest sense, Right-wing authoritarianism refers to the constellation of beliefs about the legal system, relevant to jury decision-making. Because jurors enter the trial with preconceived notions about evidence, criminal behaviour, and the criminal justice system in general, understanding these beliefs allows researchers to better understand how jurors process information and make decisions about the case. Since one of the objectives of the jury selection and voir dire process is to assess the attitudes of individuals that might influence their role as jurors, the study of jury attitudes is of great importance to judges and litigators, litigation consultants, and jury decision makers. To give their regimes the appearance of legitimacy and legality, would-be authoritarians or authoritarians often implement democratic reforms and use rhetoric that invokes the rule of law, democracy, and constitutionalism. This sleight of hand can distract domestic and international audiences, who often do not recognize anti-democratic measures because of the fog of democratic rhetoric and reforms.

In other parts of the world, democracies also continue to deteriorate under the influence of freely elected leaders who have adopted illiberal policies. India, which has suffered a series of setbacks for political rights and civil liberties since Prime Minister Narendra Modi`s re-election in 2019, has shown no signs of changing course as prominent opposition figures have been arrested and monitored. Since coming to power in 2015, Poland`s Law and Justice party has undermined the rule of law by filling the country`s highest courts with loyalists who reliably defend its policies and decisions. In October and November 2021, Poland`s Constitutional Court threatened to further undermine international and regional legal norms by ruling that it could ignore European Union (EU) legislation and judgments. Khodorkovsky`s indictment is an example of clandestine authoritarianism that has become visible around the world. His conviction has sparked widespread international criticism, including from the United States. 220 In December 2013, President Putin pardoned Khodorkovsky, after serving ten years of his prison sentence, in a thinly veiled attempt to tone down some of the criticism ahead of the Winter Olympics.221 This amnesty, however, does little to address the broader problem of clandestine authoritarianism in Russia, which has many more less visible cases than the Khodorkovsky case. Michael Ignatieff wrote that Fukuyama`s idea that liberalism defeats authoritarianism “now looks like a curious artifact of a vanished unipolar moment”[130] and Fukuyama himself expressed concern.

[129] Until 2018, only an Arab Spring uprising (Tunisia`s) led to a transition to constitutional democratic governance,[141] and a “resurgence of authoritarianism and Islamic extremism” in the region[142] has been described as the Arab winter. [143] [144] [145] [146] [147] There is no uniform consensus definition of authoritarianism, but several annual measures are attempted, including Freedom House`s Freedom in the World annual report. Some countries, such as Venezuela and others that are currently or historically recognized as authoritarian, did not become authoritarian when they came to power, or oscillated between authoritarian, imperfect, or illiberal-democratic rule. The period reflects their time in power, not the years when they were authoritarian regimes. Some countries such as China and fascist regimes have also been described as totalitarian, with some periods described as more authoritarian or totalitarian than others. Although not intended as a measure of attitudes relevant to jury decision-making, Herbert L. Packer`s identification of the due process and crime control model provides an early example of legal authoritarianism. Packer articulated these two perspectives on the criminal justice system in the influential 1968 text The Limits of the Criminal Sanction. These views reflect a number of attitudes towards the justice system that have a significant impact on how one perceives a criminal trial. According to Packer, people with strong crime control values see controlling and reducing criminal behavior as the primary goal of the criminal justice system. To achieve this, the objective is to maintain the effectiveness of the criminal justice process at all costs.

They therefore tend to place greater trust in law enforcement agencies and other criminal justice actors to properly and competently carry out their functions of arresting and convicting offenders and acquitting innocent people.