UC Berkeley

The dominant theoretical view about the social and political foundations of the rule of law is a liberal reading of the pluralist tradition in sociology. From this perspective, the combination of democracy, capitalism, and a strong civil society produce the rule of law. By extension, authoritarianism is viewed as antithetical to the rule of law, and the institutional legacies it leaves behind make it more difficult for countries to build autonomous, competent, and trust-worthy judicial systems in the post-authoritarian period. In this work I argue that the cases of twentieth century Spain and Mexico are anomalies for this paradigm. When Francisco Franco took power in Spain in 1939 he built one of the harshest authoritarian regimes of the twentieth century. It was precisely the strong authoritarian hold he secured over the judicial system combined with a weak civil society that established the foundations for the rule of law in post-authoritarian Spain. In contrast, the far more pluralist regime of the PRI in Mexico, built around a patronage system, along with a strong and litigious civil society undermined Mexico’s ability to build judicial state capacity in the post-authoritarian stage. These findings prompt us to reconsider the relationship between authoritarianism and the rule of law and compel us to remember the modernizing effects authoritarianism can have, with implications for cases beyond Spain and Mexico.