Like their democratic counterparts, authoritarian rulers need effective courts to perform the basic functions of courts – to resolve disputes, to impose social control, and to regulate at least aspects of public life (Shapiro 1981). At the same time, these rulers are often reluctant to endow courts with significant power in the form of politically sensitive jurisdiction and the discretion to make far-reaching choices. Yet, the record shows that some authoritarian regimes – for example, well-established or liberalizing ones – do entrust their courts with such responsibilities for holding public administration accountable, managing major commercial conflicts, and even maintaining quasi-constitutional order (Moustafa 2005; Ginsburg 2006). Under what circumstances authoritarian rulers opt for judicial power and with what risks, consequences, and compromises are questions ripe for comparative study.

This chapter examines the experience of three Russian states – Tsarist Russia (from the Judicial Reform of 1864); the USSR (including the late period of liberalization); and post-Soviet Russia (a hybrid regime that moved from electoral democracy to electoral or competitive authoritarianism). The chapter begins with two theoretical issues – (1) judicial independence and its relationship to judicial power and (2) distinctions among types of authoritarian regimes.

THEORETICAL PERSPECTIVES

At least in authoritarian states, judicial independence is not a given. Traditionally, European autocrats retained for themselves the right to dismiss judges whose decisions they disliked (until the seventeenth century, judges in England served “at the pleasure of the King”; Shapiro 1981: 91).