This review article draws out some of the major jurisprudential lessons that can be learned from a series of case studies of judicial politics in authoritarian regimes. Such regimes need to portray themselves as respectful of the rule of law to prolong their grip on power; they therefore tolerate independent courts, because an independent judiciary is emblematic of a commitment to the rule of law. However, the regime must contend with an unintended side effect of independent courts: judges may use their independence to check the regime, limiting its power. Authoritarian regimes will thus employ strategies to contain judicial power, producing a dialectic of empowerment and constraint with respect to courts. Among the lessons highlighted is that attempts by authoritarian regimes to contain courts strain formal rule of law conditions (conditions requiring, inter alia, that laws comprise rules that are clear, non-contradictory, stable, and generally prospective, and that official action match declared rule), suggesting that the formal conception of the rule of law imposes substantive limits on arbitrary power; and that the dialectic of empowerment and constraint exhibits a problem of domination with respect to courts, as part of a larger problem of domination of legal subjects.
In this paper, I argue that there is a signifi cant juridical root to the problem of authoritarian rule in Malaysia. Th at root is Hobbism, an authoritarian conception of legal authority as a solution to the problem of political instability. I show its infl uence by focusing on three pivotal events in Malaysia's legal and political history. Th e analysis aims to provide a more nuanced picture of the factors that contribute to the problem of authoritarianism in Malaysia and to suggest that these factors are not purely political; they also have a basis in how offi cials conceive of legal authority. My argument shows that the infl uence of Hobbism has worked in both ways to produce the problem of authoritarianism in Malaysia. It has subverted well-minded offi cials from affi rming the ideals of democracy and the rule of law while allowing authoritarian politicians to exploit Hobbism to serve their authoritarian aims. I argue that Hobbism is so well entrenched in the legal and political culture that Malaysian law and politics will not easily transition to more meaningfully express a commitment to serve the ideals of democracy and the rule of law.
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