This article proposes a two-step adjudicative framework for judicial reasoning under authoritarianism, providing guidance for judges on how to discharge their duties when facing authoritarian pressure. In this framework, judges are encouraged to identify the formal legal position while ignoring extra-legal factors, and then consider whether and how the formal legal position should be supplemented or adjusted by judicial strategies, depending on the level of risk involved.
Authoritarianism has significant implications for how judges should discharge their duties. How should judges committed to constitutionalism conduct themselves when under authoritarian pressure? To answer this question, the article proposes a two-step adjudicative framework, documents a variety of judicial strategies, and proposes how principles and strategies can and should be incorporated into the framework in different scenarios. The first step of the adjudicative framework involves judges identifying the 'formal legal position' while blindfolding themselves to extra-legal factors (such as potential authoritarian backlash). In the second step, depending on the level of risk incurred by maintaining the formal legal position, judges should lift the blindfold to check whether, and if so how, the formal legal position should be supplemented with or adjusted by judicial strategies. Through this analysis, the article offers a guide to judicial reasoning under authoritarianism.
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