Mark Jia (Georgetown University Law Center) has posted Interpreting Authoritarian Law (The Oxford Handbook of Law and Authoritarianism, edited by Cora Chan, Madhav Khosla, Benjamin Liebman, and Mark Tushnet (forthcoming)) on SSRN. Here is the abstract:
This chapter addresses interpretive challenges that arise when courts are asked to construe or apply the laws of authoritarian legal systems. Whereas scholars have sought to understand authoritarian law through a range of disciplinary perspectives, judges are sometimes constrained in their need, or temptation, to apply internalist interpretive methods and values to authoritarian laws. The result can be a clash between implicit assumptions about how law works and actual legal practices in authoritarian settings, which can depart, formally or substantively, from “law” as understood. Judicial responses to this tension range between formalism and functionalism, and can reflect externalist considerations of judicial economy, capacity, comity, responsibility, and even self-preservation. I advance these claims through an analysis of case law in the United States, the United Kingdom, and Hong Kong.
Recommended.
