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Volumn 60, Issue 1, 2007, Pages 122-145

Courts and judges in authoritarian regimes

Author keywords

[No Author keywords available]

Indexed keywords

ACCOUNTABILITY; AUTHORITARIANISM; BUREAUCRACY; DEMOCRACY; EMPOWERMENT;

EID: 42149134454     PISSN: 00438871     EISSN: None     Source Type: Journal    
DOI: 10.1353/wp.0.0004     Document Type: Review
Times cited : (72)

References (81)
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    • Courts in Russia: Independence, Power, and Accountability
    • On this relationship see, Andras Sajo, ed, Leiden and Boston: Martinus Nijhoff
    • On this relationship see Peter H. Solomon, Jr., "Courts in Russia: Independence, Power, and Accountability," in Andras Sajo, ed., Judicial Integrity (Leiden and Boston: Martinus Nijhoff, 2004).
    • (2004) Judicial Integrity
    • Solomon Jr., P.H.1
  • 3
    • 42149138497 scopus 로고    scopus 로고
    • See Peter H. Russell, Toward a General Theory of Judicial Independence, in Peter H. Russell and David O'Brien, eds., Judicial Independence in the Age of Democracy: Critical Perspectives from around the World (Charlottesville, Va., and London: University Press of Virginia, 2001);
    • See Peter H. Russell, "Toward a General Theory of Judicial Independence," in Peter H. Russell and David O'Brien, eds., Judicial Independence in the Age of Democracy: Critical Perspectives from around the World (Charlottesville, Va., and London: University Press of Virginia, 2001);
  • 4
    • 42149127039 scopus 로고    scopus 로고
    • and Valente v. the Queen 2 S.C.R. (Canada, 1985), 673.
    • and Valente v. the Queen 2 S.C.R. (Canada, 1985), 673.
  • 6
    • 69249112410 scopus 로고    scopus 로고
    • Political Lackeys or Faithful Public Servants? Two Views of the Japanese Judiciary
    • For the debate on one of the strongest judicial bureaucracies in the world, that of Japan, see
    • For the debate on one of the strongest judicial bureaucracies in the world, that of Japan, see Frank Upham, "Political Lackeys or Faithful Public Servants? Two Views of the Japanese Judiciary," Law and Social Inquiry 30 (2005).
    • (2005) Law and Social Inquiry , vol.30
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  • 8
    • 34250168363 scopus 로고    scopus 로고
    • New Challenges to States' Judicial Selection
    • and Roy A. Schotland, "New Challenges to States' Judicial Selection," Georgetown Law Journal 95 (2007).
    • (2007) Georgetown Law Journal , vol.95
    • Schotland, R.A.1
  • 10
    • 42149095942 scopus 로고    scopus 로고
    • and idem and Todd Foglesong, Courts and Transition in Russia: The Challenge of Judicial Reform (Boulder, Colo.: Westview, 2000), chap. 1.
    • and idem and Todd Foglesong, Courts and Transition in Russia: The Challenge of Judicial Reform (Boulder, Colo.: Westview, 2000), chap. 1.
  • 11
    • 42149190604 scopus 로고    scopus 로고
    • Jose Toharia, Judicial Independence in an Authoritarian Regime: The Case of Contemporary Spain, Law and Society Review 9 (Spring 1975). A version of the Spanish solution was found in the early years of Nazi Germany, where politically important matters were put in special tribunals of one sort or another and the regular courts were allowed to continue normal practice for a while in non-political civil cases. The removal of Jews from the judiciary in Germany and occasional directives on types of cases made the situation of judges on ordinary courts less than normal, but there were still grounds for the contention that in certain spheres Germany still had a rechtsstaat.
    • Jose Toharia, "Judicial Independence in an Authoritarian Regime: The Case of Contemporary Spain," Law and Society Review 9 (Spring 1975). A version of the Spanish solution was found in the early years of Nazi Germany, where politically important matters were put in special tribunals of one sort or another and the regular courts were allowed to continue normal practice for a while in non-political civil cases. The removal of Jews from the judiciary in Germany and occasional directives on types of cases made the situation of judges on ordinary courts less than normal, but there were still grounds for the contention that in certain spheres Germany still had a rechtsstaat.
  • 12
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    • The Dual State: A Contribution to the Theory of Dictatorship
    • trans. Edward, New York: Octagon Books
    • Ernst Fraenkel, The Dual State: A Contribution to the Theory of Dictatorship, trans. Edward Shils in collaboration with Edith Lowenstein and Klaus Knoor (New York: Octagon Books, 1941).
    • (1941) Shils in collaboration with Edith Lowenstein and Klaus Knoor
    • Fraenkel, E.1
  • 14
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    • Singapore: The Exception that Proves Rules Matter
    • Tom Ginsburg and Tamir Moustafa, eds, Cambridge: Cambridge University Press, forthcoming
    • Gordon Silverstein, "Singapore: The Exception that Proves Rules Matter," in Tom Ginsburg and Tamir Moustafa, eds., Rule by Law: The Politics of Courts in Authoritarian Regimes (Cambridge: Cambridge University Press, forthcoming).
    • Rule by Law: The Politics of Courts in Authoritarian Regimes
    • Silverstein, G.1
  • 15
    • 42149158842 scopus 로고    scopus 로고
    • Judicial Power in Authoritarian Regimes: The Case of Russia
    • See, fn. 9
    • See Peter H. Solomon, Jr., "Judicial Power in Authoritarian Regimes: The Case of Russia," in Ginsburg and Moustafa (fn. 9);
    • Ginsburg and Moustafa
    • Solomon Jr., P.H.1
  • 16
    • 42149121994 scopus 로고    scopus 로고
    • and idem, Threats of Judicial Counter reform in Putin's Russia, revised and enlarged version, in Kathryn Hendley, ed., Remaking the Role of Law: Commercial Law in Russia and the CIS (Huntington, N.Y.: Juris, 2007).
    • and idem, "Threats of Judicial Counter reform in Putin's Russia," revised and enlarged version, in Kathryn Hendley, ed., Remaking the Role of Law: Commercial Law in Russia and the CIS (Huntington, N.Y.: Juris, 2007).
  • 17
    • 42149140603 scopus 로고    scopus 로고
    • There are other ways of classifying the situations of courts in authoritarian states. One could, along with Ginsburg and Moustafa, draw a two-by-two table, distinguishing between high and low levels of independence and power on each axis and placing countries in the boxes. Most of the countries that fall into the third model would land between the boxes (as their degrees of power and sometimes independence were neither high nor low). A three-by-three version, with high, medium, and low positions on each variable would still fail to capture the effects of informal practices or institutions. Tom Ginsburg and Tamir Moustafa, Introduction: The Functions of Courts in Authoritarian Politics, in Ginsburg and Moustafa (fn. 9).
    • There are other ways of classifying the situations of courts in authoritarian states. One could, along with Ginsburg and Moustafa, draw a two-by-two table, distinguishing between high and low levels of independence and power on each axis and placing countries in the boxes. Most of the countries that fall into the third model would land between the boxes (as their degrees of power and sometimes independence were neither high nor low). A three-by-three version, with high, medium, and low positions on each variable would still fail to capture the effects of informal practices or institutions. Tom Ginsburg and Tamir Moustafa, "Introduction: The Functions of Courts in Authoritarian Politics," in Ginsburg and Moustafa (fn. 9).
  • 20
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    • Judicial Reform as Insurance Policy: Mexico in the 1990s
    • Spring
    • Jodi Finkel, "Judicial Reform as Insurance Policy: Mexico in the 1990s," Latin American Politics and Society 47 (Spring 2005);
    • (2005) Latin American Politics and Society , vol.47
    • Finkel, J.1
  • 21
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    • Judicial Reform in Argentina in the 1990s: How Electoral Incentives Shape Institutional Change
    • October
    • idem, "Judicial Reform in Argentina in the 1990s: How Electoral Incentives Shape Institutional Change," Latin American Research Review 39 (October 2004);
    • (2004) Latin American Research Review , vol.39
    • Finkel, J.1
  • 22
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    • The Puzzling (In)dependence of Courts: A Comparative Approach
    • June
    • and J. Mark Ramseyer, "The Puzzling (In)dependence of Courts: A Comparative Approach," Journal of Legal Studies 23 (June 1994).
    • (1994) Journal of Legal Studies , vol.23
    • Mark Ramseyer, J.1
  • 23
    • 0041573187 scopus 로고    scopus 로고
    • The Construction of Rule of Law in Argentina: A Tale of Two Provinces
    • July
    • Rebecca Bill Chavez, "The Construction of Rule of Law in Argentina: A Tale of Two Provinces," Comparative Politics 35 (July 2003);
    • (2003) Comparative Politics , vol.35
    • Bill Chavez, R.1
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    • 42149184119 scopus 로고    scopus 로고
    • Tamir Moustafa, A Judicialization of Authoritarian Politics? (Paper presented at the APSA, Washington, D.C., September 1-4, 2005);
    • Tamir Moustafa, "A Judicialization of Authoritarian Politics?" (Paper presented at the APSA, Washington, D.C., September 1-4, 2005);
  • 27
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    • Political Competition and the Politicization of the State in East Central Europe
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    • and Anna Grzymala-Busse, "Political Competition and the Politicization of the State in East Central Europe," Comparative Political Studies 36 (December 2003).
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    • Grzymala-Busse, A.1
  • 28
    • 42149105622 scopus 로고    scopus 로고
    • Ramseyer (fn. 12);
    • Ramseyer (fn. 12);
  • 29
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    • Ginsburg (fn. 12);
    • Ginsburg (fn. 12);
  • 30
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    • Finkel (fn. 12);
    • Finkel (fn. 12);
  • 31
    • 42149152681 scopus 로고    scopus 로고
    • and Linz and Stepan (fn. 1).
    • and Linz and Stepan (fn. 1).
  • 33
    • 42149144667 scopus 로고    scopus 로고
    • Solomon (fn. 7), chap. 7. See also Robert Sharlet and Piers Beirne, In Search of Vyshinsky: The Paradox of Law and Terror, International Journal of the Sociology of Law 12 (May 1984).
    • Solomon (fn. 7), chap. 7. See also Robert Sharlet and Piers Beirne, "In Search of Vyshinsky: The Paradox of Law and Terror," International Journal of the Sociology of Law 12 (May 1984).
  • 34
    • 42149194314 scopus 로고    scopus 로고
    • Solomon fn. 7, chap. 4, 6, and 11
    • Solomon (fn. 7), chap. 4, 6, and 11.
  • 35
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    • Dialogue with Dictators: Judicial Resistance in Argentina and Brazil
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    • Mark J. Osiel, "Dialogue with Dictators: Judicial Resistance in Argentina and Brazil," Law and Social Inquiiy 20 (Spring 1995).
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    • Osiel, M.J.1
  • 36
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    • The Case of the Vanishing Acquittal: Informal Norms and the Practice of Soviet Criminal justice
    • On comparative rates of acquittal see, October
    • On comparative rates of acquittal see Peter H. Solomon, Jr., "The Case of the Vanishing Acquittal: Informal Norms and the Practice of Soviet Criminal justice," Soviet Studies 39 (October 1987).
    • (1987) Soviet Studies , vol.39
    • Solomon Jr., P.H.1
  • 37
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    • Osiel fn. 20
    • Osiel (fn. 20).
  • 39
    • 42149136204 scopus 로고    scopus 로고
    • Author interviews with former Soviet jurists in emigration, 1985-86
    • Author interviews with former Soviet jurists in emigration, 1985-86.
  • 41
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    • Ran Hirschl, Constitutional Courts vs. Religious Fundamentalism: Three Middle Eastern Tales, Texas Law Review 82 (June 2004). Note that Hirschl has argued that the SCC's role in fighting religious fundamentalism was the main reason why the regime tolerated its meddling in narrowly political matters (Moustafa mentions but does not give much weight to this, p. 109) and even a reason for the SCC's earlier empowerment, a point not supported by Moustafas research. According to Hirschl, the Constitutional Court of Turkey has also become a bastion of secularism in an otherwise increasingly theocratic policy (personal communication).
    • Ran Hirschl, "Constitutional Courts vs. Religious Fundamentalism: Three Middle Eastern Tales," Texas Law Review 82 (June 2004). Note that Hirschl has argued that the SCC's role in fighting religious fundamentalism was the main reason why the regime tolerated its meddling in narrowly political matters (Moustafa mentions but does not give much weight to this, p. 109) and even a reason for the SCC's earlier empowerment, a point not supported by Moustafas research. According to Hirschl, the Constitutional Court of Turkey has also become "a bastion of secularism in an otherwise increasingly theocratic policy" (personal communication).
  • 42
    • 42149150993 scopus 로고    scopus 로고
    • Not surprisingly, Moustafa grounds his argument in new institutionalist theory as developed by Douglas North and Barry Weingast (see pp. 22-24). More important is his finding that Egyptian politicians seem to have embraced this logic in making policy choices. Whether the premises of institutionalist literature on property rights are self-evident or conveyed to domestic authorities by representatives of international organizations or local economic advisors, this line of thought sometimes has practical impact.
    • Not surprisingly, Moustafa grounds his argument in new institutionalist theory as developed by Douglas North and Barry Weingast (see pp. 22-24). More important is his finding that Egyptian politicians seem to have embraced this logic in making policy choices. Whether the premises of institutionalist literature on property rights are self-evident or conveyed to domestic authorities by representatives of international organizations or local economic advisors, this line of thought sometimes has practical impact.
  • 43
    • 42149084445 scopus 로고    scopus 로고
    • Administrative Law and the judicial Control of Agents in Authoritarian Regimes
    • fn. 9
    • Tom Ginsburg, "Administrative Law and the judicial Control of Agents in Authoritarian Regimes," in Ginsburg and Moustafa (fn. 9).
    • Ginsburg and Moustafa
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  • 44
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    • Judicial Power in Russia: Through the Prism of Administrative Justice
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    • Peter H. Solomon, Jr., "Judicial Power in Russia: Through the Prism of Administrative Justice," Law and Society Review 38 (September 2004).
    • (2004) Law and Society Review , vol.38
    • Solomon Jr., P.H.1
  • 46
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    • Checks and Balances by Other Means: Strategic Defection and Argentina's Supreme Court in the 1990s
    • January
    • and idem, "Checks and Balances by Other Means: Strategic Defection and Argentina's Supreme Court in the 1990s," Comparative Politics 35 (January 2003).
    • (2003) Comparative Politics , vol.35
    • Helmke, G.1
  • 47
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    • Ramseyer fn. 12
    • Ramseyer (fn. 12).
  • 48
    • 42149175965 scopus 로고    scopus 로고
    • The coup d'état launched by President Musharraf of Pakistan against his country's Supreme Court in November 2007 stands as an exception. When the Court threatened to declare Musharraf's rule illegitimate, he chose to declare a state of emergency and fire all members of the Court rather than accept its judgment. In so doing, however, the president acted like an authoritarian rather than a democratic leader.
    • The coup d'état launched by President Musharraf of Pakistan against his country's Supreme Court in November 2007 stands as an exception. When the Court threatened to declare Musharraf's rule illegitimate, he chose to declare a state of emergency and fire all members of the Court rather than accept its judgment. In so doing, however, the president acted like an authoritarian rather than a democratic leader.
  • 55
    • 42149146107 scopus 로고    scopus 로고
    • Alexei Trochev, The Role of the Constitutional Court in Russian Politics, 1990-2006 (Cambridge: Cambridge University Press, forthcoming).
    • Alexei Trochev, The Role of the Constitutional Court in Russian Politics, 1990-2006 (Cambridge: Cambridge University Press, forthcoming).
  • 56
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    • See also his Less Democracy, More Courts: The Puzzle of Judicial Review in Russia, Law and Society Review 38 (September 2004).
    • See also his "Less Democracy, More Courts: The Puzzle of Judicial Review in Russia," Law and Society Review 38 (September 2004).
  • 57
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    • For a strong, empirically based defense of a policy-oriented court with politically motivated justices in a common law democracy such as the United States, see, Princeton: Princeton University Press
    • For a strong, empirically based defense of a policy-oriented court with politically motivated justices in a common law democracy such as the United States, see Terri Jennings Peretti, In Defense of a Political Court (Princeton: Princeton University Press, 1999).
    • (1999) In Defense of a Political Court
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    • Shapiro (fn. 4);
    • Shapiro (fn. 4);
  • 61
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    • Peter H. Russell and David M. O'Brien, Judicial Independence in the Age of Democracy (Charlottesville, Va., and London: University Press of Virginia, 2001);
    • Peter H. Russell and David M. O'Brien, Judicial Independence in the Age of Democracy (Charlottesville, Va., and London: University Press of Virginia, 2001);
  • 62
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    • Paul Howe and Peter Russell, eds, Montreal: McGill Queen's Press
    • Paul Howe and Peter Russell, eds., Judicial Power and Canadian Democracy (Montreal: McGill Queen's Press, 2001);
    • (2001) Judicial Power and Canadian Democracy
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    • See also Doreen J. McBarnet, Crime, Compliance, and Control (Aldershot, U.K., and Burlington, Vt.: Ashgate/Dartmouth, 2004).
    • See also Doreen J. McBarnet, Crime, Compliance, and Control (Aldershot, U.K., and Burlington, Vt.: Ashgate/Dartmouth, 2004).
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    • Informal Institutions and Comparative Politics: A Research Agenda
    • On the analysis of informal institutions and practices, see, December
    • On the analysis of informal institutions and practices, see Gretchen Helmke and Steven Levitsky, "Informal Institutions and Comparative Politics: A Research Agenda," Perspectives on Politics, 2 (December 2004);
    • (2004) Perspectives on Politics , vol.2
    • Helmke, G.1    Levitsky, S.2
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    • and Alena Ledeneva, How Russia Really Works: The Informal Practices that Shaped Post-Soviet Politics and Business (Ithaca, N.Y.: Cornell University Press, 2006), especially chap. 1.
    • and Alena Ledeneva, How Russia Really Works: The Informal Practices that Shaped Post-Soviet Politics and Business (Ithaca, N.Y.: Cornell University Press, 2006), especially chap. 1.
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    • Informal Practices in Russian Justice: Probing the Limits of Post-Soviet Reform
    • Ferdinand Feldbrugge, ed, Leiden and Boston: Martinus Nijhoff
    • Peter H. Solomon, Jr., "Informal Practices in Russian Justice: Probing the Limits of Post-Soviet Reform," in Ferdinand Feldbrugge, ed., Russia, Europe, and the Rule of Law (Leiden and Boston: Martinus Nijhoff, 2007), 79-92.
    • (2007) Russia, Europe, and the Rule of Law , pp. 79-92
    • Solomon Jr., P.H.1
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    • Informal Institutions and the Post-Communist State
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    • Anna Grzymala-Busse, "Informal Institutions and the Post-Communist State," (Manuscript, 2004).
    • (2004)
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    • The End of the Transition Paradigm
    • See, for example, Thomas Carothers, Washington, D.C, Carnegie Endowment for International Peace
    • See, for example, Thomas Carothers, "The End of the Transition Paradigm," in Thomas Carothers, Critical Mission: Essays on Democracy Promotion (Washington, D.C.: Carnegie Endowment for International Peace, 2004).
    • (2004) Critical Mission: Essays on Democracy Promotion
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    • Other People's Patriot Acts: Europe's Response to September 11
    • Kim Lane Scheppele, "Other People's Patriot Acts: Europe's Response to September 11," Loyola Law Review 50 (2004);
    • (2004) Loyola Law Review , vol.50
    • Lane Scheppele, K.1
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    • Ronald Daniels, Patrick Macklem, and Kent Roach, eds, Toronto: University of Toronto Press
    • Ronald Daniels, Patrick Macklem, and Kent Roach, eds., The Security of Freedom: Essays on Canada's Anti-Terrorism Bill (Toronto: University of Toronto Press, 2001);
    • (2001) The Security of Freedom: Essays on Canada's Anti-Terrorism Bill
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    • Must We Trade Rights for Security? The Choice Between Smart, Harsh, or Proportionate Security Strategies in Canada and the United Kingdom
    • Kent Roach, "Must We Trade Rights for Security? The Choice Between Smart, Harsh, or Proportionate Security Strategies in Canada and the United Kingdom," Cardozo Law Review 27 (2006);
    • (2006) Cardozo Law Review , vol.27
    • Roach, K.1
  • 80
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    • Judicial Balancing in Times of Stress: Comparing the American, British, and Israeli Approaches to the War on Terror
    • Michel Rosenfeld, "Judicial Balancing in Times of Stress: Comparing the American, British, and Israeli Approaches to the War on Terror," Cardozo Law Review 27 (2006);
    • (2006) Cardozo Law Review , vol.27
    • Rosenfeld, M.1
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    • The Supreme Court and the Problem of Terrorism
    • available at
    • and Aharon Barak, "The Supreme Court and the Problem of Terrorism," in Judgments of the Israel Supreme Court: Fighting Terrorism within the Law (available at www.mfa.gov.il/MFA/Government /Law/Legal+Issues+and+Rulings/ Fighting+Terrorism+within+the+1Law+2Jan-2-2005.htm).
    • Judgments of the Israel Supreme Court: Fighting Terrorism within the Law
    • Barak, A.1


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