How Can Judges Challenge Dictators and Get Away With It?

Abstract

The literature on constitutional courts under authoritarian or hybrid regimes typically suggests that judges that decide to challenge a regime in high-stakes cases might face political backlashes. For that reason, some comparative constitutional law scholars argue that courts should develop strategies such as judicial avoidance or weak judicial review practices. This article claims that sometimes those strategies are unnecessary, as it is possible for courts, in specific high-stakes scenarios, to preserve or promote democratic values without facing such backlash. If there is a strategy that makes it feasible to reconcile: (1) the need to advance a democratization agenda with (2) the necessity of safeguarding judicial independence, judges should prefer this later strategy. For this kind of strategy to be successful, judges need to identify and possibly predict the autocrats' expected costs of disobeying the judicial decision. If the projected costs are high enough, dictators might prefer to obey the ruling. One way in which this judicial strategy can work is by triggering what the author calls Constitutional Paradox. This 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 to disobey the unfavorable decisions while risking to divide the regime's supporting coalition, harming their credibility and weakening the legitimacy or 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. The article uses an example from the Chilean Pinochet dictatorship (1973-1990) to show how a constitutional paradox may be able to push dictators to respect such rulings, and it identifies the preliminary conditions in which a constitutional paradox can be triggered.