Episode 3.2: Trial and Terror, with Fiona Feiang Shen-Bayh

Today on Scope Conditions: why the judge’s gavel is sometimes mightier than the sword.

Political trials – or show trials – are a well-known mode of repression in authoritarian settings. We often think of a show trial as a sham version of the real thing: the autocrat affords his enemy a semblance of due process to give off the appearance of fairness, even though in reality, the fix is in. On this view, the show trial helps to legitimize arbitrary rule. 

Our guest today, Dr. Fiona Shen-Bayh, an assistant professor of Government at the College of William and Mary, tells us that this common understanding of political trials gets things only half right. Sure, the outcome of a show trial is pretty much pre-ordained. But political trials aren’t concessions to norms of legal fairness. Rather, Fiona argues, the trial – the ritual, storytelling, and publicness of a judicial process – is itself a key tool of repression and power-maintenance, especially for rulers facing threats that they can’t see.

We have a terrific conversation with Fiona about her new book, Undue Process: Persecution and Punishment in Autocratic Courts, an analysis of the political logic of show trials in post-independence Anglophone Africa. Fiona explains to us how the pomp and ceremony of the courtroom helps undermine coordination among the dictator’s enemies. We also talk about how autocrats choose between assassinating their opponents and putting them on trial, and about how African dictators find judges who are both competent enough to run a good trial and compliant enough to rig the outcome. 

Fiona also tells us how she painstakingly dug through archives to construct an original dataset of coup plots and repressive responses.  We learn how Fiona dealt with the challenge of identifying unsuccessful coup plots and what happened to the plotters – over many decades in seven African countries. Records inside these countries were sparse, so she immersed herself instead in the shadow archives. And if you don’t know what a shadow archive is, you’ll want to listen to find out. We also talk with Fiona about how she managed the inevitable uncertainties of deep archival work – of not knowing whether your months of digging through the files will turn up anything useful.

This is a conversation about courts as political institutions. And we close it out by asking Fiona to reflect on whether this is just an autocratic dynamic, or one that afflicts democracies too. At the end of the day, what is it that keeps courts in liberal democracies from merely serving political ends?

Works discussed in the episode:

Feeley, Malcolm M. 1979. The Process is the Punishment: Handling Cases in a Lower Criminal Court. New York: Russell Sage Foundation.

Foucault, Michel. 1977. Discipline and Punish: the Birth of the Prison. New York: Pantheon Books.

Gessen, Masha. 2021. Surviving autocracy. New York: Penguin Random House.

Hassan, Mai. 2020. Regime Threats and State Solutions: Bureaucratic Loyalty and Embeddedness in Kenya. Cambridge: Cambridge University Press.