Gavels Defying Guns: The Judicial Control of State Power in Authoritarian Systems

Abstract

GAVELS DEFYING GUNS: THE JUDICIAL CONTROL OF STATE POWER IN AUTHORITARIAN SYSTEMS By

Rodelio Dela Cruz Manacsa

ABSTRACT

When do judges rein in those who reign? In a democracy, the judiciary has the crucial task of protecting fundamental freedoms from the vagaries of the reigning majority. The courts are expected to subject power to rules (Fuller 1964; Shapiro 1981). However, rulers can employ a variety of weaponry to bend the gavel to their will: They can refuse to implement judicial rulings, cut the court’s jurisdiction, reduce the budget allotted to the court, and impeach the magistrates. These threats are particularly compelling in authoritarian systems where judges do not enjoy the institutional safeguards or the popular support that protect their counterparts in more developed polities. Thus, it becomes most relevant to ask: When do judges invalidate actions of government? Why do gavels defy the gun? I develop a theoretical framework that includes a set of contextual, attitudinal, and legal variables to account for when and why judges are emboldened to limit the exercise of governmental power under conditions of concentrated power. Focusing on the high courts of the Philippines and South Africa, the dissertation identifies the conditions that enable judges to overturn state action at the risk of incurring the wrath of the sword.