Research framework and broader academic knowledge base
Serbia: documented application of the same framework
How does a court lose its independence while remaining independent on paper?
The court can remain constitutionally “independent”, and practically lose the freedom to decide. Control is built through the manner of selecting and advancing judges, temporary mandates, disciplinary procedures, salaries and budget, changing jurisdictions and assigning sensitive cases to appropriate councils.
An open phone call is often not necessary: judges from earlier examples learn which decisions close their careers, launch a media attack or lead to a transfer. This is how self-censorship occurs, while the authorities can argue that no one has ordered the outcome. One bad verdict does not prove the control of the entire court. A more reliable sign is the repeated pattern: politically important cases are delayed or ended predictably, allies and opponents are treated differently from the consequences.
One wrongful verdict against the opposition does not prove that the entire court is controlled. A repeated pattern of pressure and different treatment is required.
Works supporting this answer, with their evidence type and an explanation of how they relate to the claim.
review more research
Moustafa, T. (2014), „Law and Courts in Authoritarian Regimes“, Annual Review of Law and Social Science 10: 281–299.
- Contribution to this answer
- Moustafa shows that the court does not have to be completely abolished in order to lose political independence: it can continue to resolve many ordinary disputes, while the limits of its autonomy appear precisely in the cases that are most dangerous to the government.
Historical data and comparison
Moustafa, T. (2007), The Struggle for Constitutional Power: Law, Politics, and Economic Development in Egypt, Cambridge University Press.
- Contribution to this answer
- In Egypt, Moustafa shows how authoritarian authorities can first give courts space because they benefit from it, and then narrow it down when the judiciary begins to produce politically risky consequences.
comparing several countries or cases
Ginsburg, T. i Moustafa, T. (ur.) (2008), Rule by Law: The Politics of Courts in Authoritarian Regimes, Cambridge University Press.
- Contribution to this answer
- “The Assembly shows that courts in authoritarian regimes have real functions and limited autonomy, but their power depends on the political design and tolerance of the regime.
review more research
Whiting, S. H. (2023), „Authoritarian Legality and State Capitalism in China“, Annual Review of Law and Social Science 19: 357–373.
- Contribution to this answer
- Whiting shows how the legal system can maintain formal procedure and professional institutions while being incorporated into the political priorities of the regime. Formal legality is therefore not the same as political independence.
comparing several countries or cases
Scheppele, K. L. (2018), „Autocratic Legalism“, University of Chicago Law Review 85(2): 545–583.
- Contribution to this answer
- Scheppele shows how the independence of the court can be weakened by changing the rules of appointment, jurisdiction and procedures, without any formal abolition of the institution.
Is a relevant source missing? Send it to us.
Suggest a source or report an error in this answer →