Understanding Repressive Law

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Holly Nelson
5 years ago
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1 Understanding Repressive Law How to identify? Role of law Is law seen as sword to be used exclusively by the state Or is law seen both as a sword and a shield: Sword to be used to advance interests Shield to be used against the arbitrariness of the state or others Repressive law = instrumental law Law serves as an instrument to achieve the policy and/or personal goals of those with power Nonet & Selznick: law is identified with the state Key features of repressive law Absence of popular opposition Potential for coercive enforcement of law Wide discretion for officialdom Low level of certainty & predictability for law Little legitimacy for legal system Dualistic legal system Laws fail to bind those in power 1

2 Role of society & need for coercion If those in power believe law should serve their interests, they are unlikely to be interested in views of ordinary citizens May be motivated by altruism or desire to gain personal power / wealth Is coercion necessary? If so, when? Is there a general habit of obedience? (Austin) Wide discretion for officials Absence of checks & balances Officials need not look over their shoulders Formal law tends to be vague & overbroad Contains undefined terms Goal: allow officials to do whatever they want color of law Little predictability minimal legitimacy If law can be adapted to serve the needs of the state and/or those with power, certainty is lost Why should anyone trust or use the law? More likely that people will avoid law 2

3 Dualism of repressive legal systems Can all aspects of legal system be unpredictable? How feasible? Core / periphery phenomenon Areas of law and/or individuals Some aspects of law operate normally but can you ever be sure? No surprise that those in power would not feel themselves to be bound by law Extreme example: On Combating Counterrevolutionary Actions (1917 USSR) that it is necessary to make the Soviet Republic safe from class enemies by isolating the latter in concentration camps; that all persons associated with white guard organizations, plots, and uprisings shall be shot; and that the names of those executed, as well as the reasons for the application of the measure, shall be published. 3

4 Images of the Reichstag Fire Posters of Communist Party officials sought after fire 4

Reichstag Fire Decree (Feb 27, 1933) On the basis of the German constitution, the following is decreed as a defensive measure against Communist acts of violence endangering the state: 1.

5 Reichstag Fire Decree (Feb 27, 1933) On the basis of the German constitution, the following is decreed as a defensive measure against Communist acts of violence endangering the state: 1. Articles 114, 115, 117, 118, 123, 124, and 153 of the constitution are suspended until further notice. Thus, restrictions to personal liberty, on the right to free expression of opinion, including freedom of the press, on the right of assembly and the right of association, and violations of the privacy of postal, telegraphic, and telephonic communications, and warrants for housesearches are also permissible beyond the legal limits otherwise prescribed. Trial Why a trial? What was the regime s goal in holding a trial? How fair was the trial? What was the outcome? How was it justified? What lessons for future political trials? Defendants South Africa Under Apartheid Trial of Henry Gwala & others ( ) Why did the regime bother with a trial? What were the charges against them? What issues did the defense want to raise? Did the judge allow them to present evidence about torture? What outcome? Was South Africa a repressive legal regime? 5

DECISION. Ms. [redacted] Address: [redacted] I hereby refuse to grant Veteran status. GROUNDS

DECISION. Ms. [redacted] Address: [redacted] I hereby refuse to grant Veteran status. GROUNDS VETERAN AND PERSECUTION VICTIMS AGENCY 00-926 Warsaw, ul. Wspolna 2/4 Phone 661 81 11 fax 661 90 73 DECISION By the Director of the Veteran and Persecution Victims Bureau from 12 FEB 2016 Nr [redacted]