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The term ‘political trial’ is popularly associated with ‘show trials’ like the Moscow Purge trials that were conducted by Stalin during the 1930s. Such trials represent an extreme example of political repression and are viewed as sham legal proceedings designed by the authorities to dramatize speciﬁc political campaigns and/or to eliminate prominent individuals. In this context the political trial is taken to be a ‘show’ in which politicians and not jurists are those who pull the strings and determine the results of the trial in advance. This pejorative use of the term also helps designate regimes that resort to such techniques as the antithesis of liberal democracies. Yet, as Otto Kirchheimer observed, the most eﬀective usage of political trials occurs precisely within liberal democracies, in societies committed to the rule of law. What can explain this gap between popular perceptions and the actual practice of political trials? Can we distinguish a political trial from a ‘show trial’? Should we continue to view political trials as opposed to the very essence of liberal democracies, or should we accept them as part and parcel of this system, deserving a sustained theoretical elaboration?
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In his seminal book Political Justice Kirchheimer deﬁnes political trials as instances in which ‘court action is called upon to exert inﬂuence on the distribution of political power’ (Kirchheimer 1961). This broad deﬁnition includes the use of the court by the ruling elites or by outgroups and dissenters to achieve political goals by judicial means. Many writers regard the central factor in such trials as the political motive behind them. The connecting thread between the trial of Socrates for corrupting the youth of Athens (399 BC), the trial of Jesus for blasphemy and sedition (AD 30), the trial of Joan of Arc (1431) for heresy and witchcraft, the trial of Thomas More (1534) for remaining silent when asked about Henry VIII’s supremacy in religion, the trial of Galileo (1633) for heretically suggesting that the earth moved around the sun, and many other trials is that, in each case, men in power believed that the defendant was a threat to them (Becker 1971, Belknap 1981). For this reason the prototype of a political trial has been the criminal trial of a political adversary for political reasons. This broad deﬁnition encompasses trials in which the defendant has directly attacked the established order by acts such as treason or sedition, but also trials involving common crimes in which only the personality or the motive of the oﬀender indicates their political nature. Other writers try to reﬁne this deﬁnition by expanding its scope to legal proceedings other than criminal trials such as impeachment, congressional hearings, and truth commissions. It has also been suggested that the deﬁnition be extended to include trials involving larger group conﬂicts such as ethnic, race, or labor struggles. Some move the emphasis from the political motive of the authorities to the political identity of the defendant. Yet others conclude that the important factor is not the motive but the competition of stories over the identity of the polity that distinguishes such trials. Notwithstanding their diﬀerences, all writers on the subject agree that political trials are inevitable not only in authoritarian regimes but also in constitutional democracies, although this is generally denied. Critical of such denials, they set out to replace them with an honest recognition of the existence and function of political trials in both types of regimes.
Why should the term political trial cause such anxiety and widespread denial? Since law tends to stabilize the status quo it is not surprising that there are always people who feel justiﬁed in ignoring the law in order to bring about drastic and necessary changes. This is especially true for powerless groups that are prevented from participating eﬀectively in important institutional decisions aﬀecting their lives (Hakman 1972, Fletcher 1995). When the authorities put on trial those who challenge the basic value distribution in society, especially those who are willing to disregard existing laws to this end, the result is a political trial. Despite this regular occurrence of political trials within democratic societies the term is widely resisted because of its connotation with notions of ‘show trials’ in which either the charge is a ‘frame-up’ to conceal the political motivation of the prosecution, or the hearing itself fails to meet minimum standards of judicial impartiality and independence. For this reason, writers attempt to distinguish among diﬀerent types of political trials. One classiﬁcation distinguishes among the politically motivated trial, politically determined trial, and trials with substantial political consequences (Friedman 1970). Another diﬀerentiates between political ‘trials’ (abridgment of due process guarantees) the ‘political’ trial (camouﬂaged as a criminal trial) and the political trial (politically motivated) (Becker 1971). These eﬀorts at classiﬁcation have proved frustrating because of the immense historical variations and the widespread existence of political trials in very diﬀerent regimes. Writers have identiﬁed a variety of characteristics of political trials but none has proved to be a suﬃcient and necessary condition. This literature has largely been descriptive but has failed to assess the compatibility of political trials with liberal values and thus to overcome the negative connotations the term arouses. In order to address this question it is necessary to expose the hidden engine of political trials—their legitimizing function—and its relation to democracy.
The legal system oﬀers a tempting opportunity for those in power to damage enemies, tarnish their image, and isolate them from potential allies by casting them as criminals. This temptation becomes especially strong in democracies that constrain the ruling elite from resorting to more direct devices of repression. What distinguishes political trials from other political devices is their legitimizing function, i.e., their ability to turn a political adversary into a criminal defendant and thereby reinforce the legitimacy of those in power. However, this function can be served only if the public perceives the trial as providing the defendant with a ‘ﬁghting chance.’ In constitutional democracies this ‘ﬁghting chance’ is generally assured by the relative autonomy of the judges and the constraining eﬀects of the rule of law (Kirchheimer 1961). Moreover, these guarantees introduce an element of uncertainty into the trial, and encourage political defendants to use it to expose the illegitimacy of the policy or value system advanced by the authorities. Indeed, from Socrates’s trial (399 BC) to the Chicago Conspiracy trial (1969), there have always been defendants who have exploited the limited forum that the political trial provided them to articulate their oppositional views. Some have adopted a deﬁant stance, proclaiming their right to commit the crime (Solomon Tellirian—as a protest against the Armenian massacre by the Turks in 1921; Dr Jack Kevorkian—advocating euthanasia in 1999), or refusing to respect the traditional decorum of the courtroom altogether (Bobby Seale–Black Panthers in 1969; Klaus Barbie–Nazism and Vichy France in 1987); others have played by the rules in order to win an acquittal that would conﬁrm their claim that they were being prosecuted for their political beliefs (Dr Spock–Vietnam War in 1968). Insight into this legitimizing function and the element of uncertainty that it introduces into political trials in democratic regimes exposes the tension between politics and justice inherent in them. This has made political trials a fascinating area for research since the 1960s.
1. Political Trials In The Transition To Democracy
Political trials are most salient in times of transition between regimes, especially when a new democratic regime confronts crimes of the old regime. Indeed, the ﬁrst attempts to seriously consider the compatibility of political trials with liberal–democratic values appear in the literature on the transition to democracy. Unlike a military revolution that sustains its authority by brute force, democratic regimes are committed to the rule of law and are inclined to address the evils of the previous regime with the help of legal devices. However, the new regime’s commitment to the rule of law also makes it aware of the dangers of using ex post facto laws and indulging in ‘victor’s justice.’ At such times, the various expectations from the law—to punish the guilty, to ascertain the truth about the old regime, and to enhance reconciliation in society—seem to overwhelm the legal system and to push it in opposite directions. Moreover, the forward-looking direction of the architects of democracy who are concerned with the eﬃcacy of the transition often conﬂicts with the backward-looking direction of legal proceedings and their narrow focus on individual guilt (Osiel 1997, Nino 1991, Teitel 1997). For these reasons trials of transition bring to the foreground the clash between politics and justice. Two main approaches to the problem have evolved since World War II: Exemplary Criminal Trials and Truth Commissions, both of which can be considered political trials of sorts and have received extensive theoretical elaboration.
Following the end of World War II the Allies established an international military tribunal in Nuremberg (1945) to judge the leaders of the Nazi regime. This was the ﬁrst time in history that the leaders of a defeated country had faced criminal prosecution for war crimes, crimes against the peace, and crimes against humanity by an international tribunal. The charge that was applied in the trial—conspiring to wage an aggressive war—allowed the prosecution to tell a general historical narrative. Could the obvious political end of using the court to teach a history lesson (through ex post facto laws, and victors’ judges) be reconciled with the demands of liberalism? Confronted with this dilemma, Judith Shklar made the ﬁrst serious eﬀort to reconcile the legacy of liberalism with political trials occurring in the transition to democracy (Shklar 1964). A legalistic understanding of liberalism, she argued, could justify the Nuremberg trials only at the high cost of denying their political nature altogether. In her view, procedural safeguards to defendants could only guarantee that the trial would not deteriorate into a show trial, but this in itself could not justify deviating from basic liberal demands such as an independent judiciary, established court, nonretroactive laws etc. Paradoxically, Shklar came to the conclusion that the political dictate of founding a democracy justiﬁed the divergence from strict legalism in the Nuremberg trials. In other words, it was only an honest recognition of the political aspects of the trials, their educational and symbolic contribution to the building of democracy in postwar Germany, that could justify them. Later writers accepted Shklar’s consequentialist approach to transitional justice but limited its applicability to trials that guarantee the due-process rights of the defendants (Osiel 1997).
A very diﬀerent attempt to address the crimes of the Nazi regime was made in the Eichmann trial (1961). This time it was not the international community but an Israeli court that undertook to judge one of the central ﬁgures in the administrative massacre of the Jews. The political nature of the trial was evident, among other things, from its reliance on the particularistic law of ‘crimes against the Jewish people.’ Likewise the heavy reliance on victims’ testimonies about their suﬀering (and through them the telling of the Jewish Holocaust) conﬂicted with the liberal demand that the trial concentrate on proving the deeds of the accused. Hannah Arendt and other writers criticized the Israeli prosecution for politicizing the trial in this way (Arendt 1963, Segev 1993, Lahav 1992). Others see the decision as stemming from the general dilemma of political trials of how to strike a balance between the need to establish the truth about an oppressive regime, the need to give voice to the victims, and the need to ascertain the guilt of the defendants (Bilsky 2001).
This dilemma is compounded when the former authoritarian regime retains enclaves of power and opposes any attempt to bring to justice the oﬃcials of the former regime. In South America, Argentina remains the only nation that has indicted and prosecuted military oﬃcers in public trials for their role in acts of repression carried out under the former regime. The political nature of these trials was evident in the decision to prosecute only the masterminds and the worst oﬀenders, and in the greater priority given to the value of learning about the evils of the authoritarian past than to prosecuting every individual who was involved. Again, the justiﬁcation for such selective prosecution is given in consequentionalist terms—to what extent the trial serves to strengthen the emerging democracy ( Nino 1991). A central dilemma that emerges in transitional trials of this kind is the breakdown of common discourse which undermines the legitimacy of the trial for some segments of society. Thus, the Argentinian court’s decision to limit the evidence to proving the deeds of the accused, without allowing them to be situated within the wider historical narrative about an alleged war of self-defense against attacks on the regime by guerrilla forces, was deemed political and undermined the legitimacy of the trial in the eyes of the military (Osiel 1997).
Side by side with such eﬀorts to bring to trial leaders of former authoritarian regimes for gross violations of human rights, there has developed the institution of truth commissions established by national or international organizations. Truth commissions reduce the tensions that arise in transitional trials by separating the various functions of learning the truth about the past, of ascertaining individual guilt, and of giving voice to victims. The Truth and Reconciliation Commission in South Africa, for example, was divided into a Committee on Human Rights Violations (victims’ testimonies), a Committee on Amnesty (oﬀender’s testimonies), and a Committee on Reparation and Rehabilitation. In each committee diﬀerent procedures were used (1995 Act). It further made the granting of individual amnesty conditional upon providing a full account of the oﬀenses that were committed (Minow 1998). Truth commissions have proved to be far more eﬀective than court proceedings in furnishing a dramatic medium for theatricalizing the new oﬃcial history since the narratives of victims are rarely interrupted by lawyers and there are incentives for oﬀenders to relate their part in the repression. Indeed, in several countries the commission’s proceedings have been broadcast daily, and in others the ﬁnal report, Nunca Mais (Never Again), has become a best seller (Brazil, Argentina.) Truth commissions present us with a kind of political trial in which the balance between politics and justice has been struck in ways more compatible with liberal concerns.
2. Political Trials In Established Democracies
The political nature of transitional justice seems from the fact that there are no overarching legal norms that are accepted as legitimate by the two successive regimes. Moreover, in these cases the trials have overwhelmingly been used to fulﬁll social and political functions other than ascertaining individual guilt. Liberal scholars, as we have seen, have been willing to recognize the political nature of such trials and to justify it, but have not extended their theories to trials in established democracies. The general view is that in normal times law should endeavor to keep politics out of the courtrooms so that every political trial is perceived as a corruption of the rule of law (which may be termed the pathology thesis). This distinction, however, fails to account for the striking similarities between transitional situations and periods in which there has been a signiﬁcant increase in political trials in democratic societies.
In the United States political trials have occurred whenever the status quo has been challenged, generally during periods of social and political ferment unleashed by such forces as war, economic conﬂict, or racial discord (Belknap 1981). For example, the decade that began with the escalation of the Vietnam war in 1965 brought an epidemic of political trials culminating in the Chicago Conspiracy trial (1969–70). This case represents a microcosm of American political justice of the era, as it was directed against representatives of major antiwar groups, youth counterculture, and the Black Panther Party who all believed that the war was illegal and sought to mobilize the public against it. Although the charges were clearly political (conspiracy to cross state lines with the intent to incite riot), the trial also demonstrated the ability of the defense to politicize the trial and turn it into a forum for social protest by ﬂouting the norms of the courtroom and ridiculing the judge (Ely 1981). In such trials as the Chicago Conspiracy trial the same breakdown of common discourse was manifested as in political trials during the transition to democracy.
The social turmoil and political trials of the late 1960s inﬂuenced the development of radical theories of law (Gordon 1982) scholars in critical legal studies, critical race theory; and feminist legal studies began to question the plausibility of the liberal ideal of separating law from politics. For these scholars the very attempt to delimit the boundaries of the category ‘political trials’ obscures the way in which politics enters every trial and every ﬁeld of law. They argue that the liberal reliance on a distinct category of political trials often serves to legitimize the status quo. Critical theory understands politics not in the narrow sense of the term (motive of authorities, identity of defendant, etc.) but as the hegemonic ideology that shapes the interpretation of law while presenting it as neutral. The main contribution of critical writings to understanding political trials has been their rejection of the ‘pathology thesis’ about the relation between law and politics and their systematic eﬀorts to uncover the ideological structures that shape diﬀerent areas of law (Kelman 1987, Kairys 1982). This broad deﬁnition of political trials, however, had its drawbacks because it no longer called for a systematic investigation of the unique features of classic political trials, and shifted the attention of scholars from the court drama and social reception of the trial to the appellate court interpretation of the law.
Other scholars, still committed to the liberal framework, have identiﬁed a new form of political trial that emerged during the 1980s and 1990s. While in the old political trial the ruling authorities selected certain individuals to stand for an opposition the state wanted to eliminate, in the new political trial a section of the public turns the trial into a political trial by identifying with the victims (who are not a formal party to the trial) or with the defendant. In these cases the state does not intend a political trial and has very little control over its politicization (Fletcher 1995). The people mobilized around these trials are usually outgroups protesting their marginalization by the legal and political institutions of the state. Examples are famous rape trials and self-defense trials of battered women who killed their abusive spouses in which women’s group identify with the victim and politicize the trial. The Rodney King trial and O. J. Simpson trial likewise became political trials in which African– American groups were mobilized to protest against white justice in America. The study of these trials draws particular attention to the role of the media in these cases.
The focus on group conﬂict and on the narrative and rhetorical aspects of political trials in on-going democracies provides scholars with the key to understanding their dynamics from a pluralistic perspective. The famous trials of Socrates, Jesus, Dreyfus, and others are examples of heroes unjustly prosecuted, but they can also be viewed as major junctions in the life of the republic where society’s conﬂicting values are played out not only, and not even mainly, through the learned interpretation of the law, but through the human drama in and around the courtroom. In these trials the social conﬂict is transformed into competing narratives that capture the public’s attention and oﬀer an opportunity for collective self-reﬂection. Through an examination of competing values and loyalties they bring together for public consideration society’s basic contradictions (Christenson 1999). From this perspective we can see how political trials, while threatening the rule of law, at the same time may contribute to the development of a more critical and democratic society.
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