Legalized Rent-Seeking: How Dictators Use CivilCourts to Manage Corruption

Dissertation

Presented in Partial Fulfillment of the Requirements for the DegreeDoctor of Philosophy in the Graduate School of The Ohio State

University

By

Margaret Hanson, M.A., Russian Studies

Graduate Program in Political Science

The Ohio State University

2017

Dissertation Committee:

Marcus Kurtz, Advisor

Irfan Nooruddin

Pauline Jones Luong

Morgan Liu

c• Copyright by

Margaret Hanson

2017

Abstract

My dissertation confronts a surprising reality: though, as most political economy

literature predicts, state o�cials in autocracies expropriate private property with im-

punity, they often take the seemingly redundant step of turning to courts to resolve

resulting conflicts with property owners. Equally puzzling is many citizens’ willing-

ness to do the same, despite awareness that courts are dependent, corrupt, and biased

in favor of the state. In this context, why would either o�cials or citizens choose lit-

igation? I find that each does so for distinct yet complementary reasons. Autocrats

compel local executive o�cials to channel disputes through courts to address negative

consequences from those o�cials’ predatory behavior, while citizens seize upon the

opportunity for marginal improvements vis-à-vis the powerful local executives who

targeted them. The executive seeks to control rather than eliminate this activity

by o�cials, because tacit permission to use their positions for self-enrichment helps

ensure subordinates’ loyalty. However, this local-level corruption also generates costs

for the autocrat. In particular, it sparks social unrest. Requiring o�cials to channel

conflict through courts reduces protests and other collective action by victims, o�ers

an improved outcome for a select few of them, and creates and enforces guidelines

for o�cials’ behavior. In short, formal legal institutions help the autocrat manage

corruption; in doing so, they stabilize and sustain the regime.

ii

This thesis is dedicated to my amazing parents,

in recognition of their unwavering love and support.

iii

Acknowledgments

More than once, I have likened graduate school to an apprenticeship: at its best,

you learn and grow in your craft under the guidance of a skilled mentor; at its worst,

your plight resembles modern indentured servitude. I am grateful that my experience

at Ohio State has been the former. Marcus Kurtz has challenged me to tackle inter-

esting problems and given frank but honest feedback on countless iterations of this

project over the past six years. I always left his o�ce excited to pursue new avenues

in my research, and with far more clarity than when the meeting began. This project,

and my development as a scholar, owe him an enormous debt. Irfan Nooruddin has

had a decisive influence on my career since I arrived at Ohio State. From that first

overbooked seminar which he graciously allowed me to join, he has provided invaluable

support and guidance on every project that I have tackled throughout my graduate

studies, as well as on how to navigate the world of academia. Pauline Jones Luong

was one of the scholars whose work inspired me to go to graduate school to pursue my

interest in Central Asian politics. I was a mildly terrified first-year graduate student

when we first met to discuss the earliest inklings of this dissertation; I am thrilled and

honored to count her among my mentors today. Morgan Liu has o�ered guidance,

empathy, and support since this project’s early stages, but especially regarding its

qualitative components; his perspective on fieldwork and its challenges always led

me to new and better insights. In addition, I would like to thank William Minozzi,

iv

Philipp Rehm, Amanda Robinson, and Brad Holland for their feedback at various

stages of writing the dissertation. Discussions with Tim Frye, Timur Kuran, Eddy

Malesky, Je�rey Staton, and Alexei Trochev helped me regain forward momentum at

crucial junctures. Courtney Sanders ensures that a department full of absent-minded

scholars runs smoothly, and her assistance was integral to navigating the adminis-

trative hurdles involved in long-term fieldwork. This project owes a great deal to all

those mentioned here; any errors, however, are entirely my own.

In addition, I would like to thank the National Science Foundation, the IREX

Title VIII Individual Advanced Research Opportunities program, the Social Science

Research Council (with the Andrew W. Mellon Foundation), the Mershon Center for

Security Studies, the Ohio State University Department of Political Science, and the

Ohio State University O�ce of International A�airs for their generous support of the

fieldwork and surveys conducted for this dissertation.

I would be incredibly remiss if I did not thank all those in Kazakhstan who were

so generously willing to meet with the random American scholar who often, simply

showed up at their o�ce door one day with a notebook and a list of questions.

In Kazakhstan, a common saying is that Kazakhs are a hospitable people; it is a

description I have found to be incredibly apt. While I cannot list most of them

here, I am grateful for their warmth, openness, and hospitality. As one landowner

who hosted me said, “You need help, and it is going toward a dissertation, toward

scientific work... If I can help, why wouldn’t I?” She and countless others in Astana,

Almaty, and Shymkent made this project possible, and I owe them an enormous

debt. In addition, my colleagues at Nazarbayev University, especially Caress Schenk,

Alexei Trochev, Daniel Pugh, and Yoshi Kobayashi provided support and a warm

v

community during my time in often-frigid Astana. The sta� at the Public Opinion

Research Institute, especially Ainur Mazhitova, o�ered many cups of tea and hours

of conversation in addition to conducting the surveys included here. Finally, Svetlana

Kovalskaya welcomed me to Astana the first time I arrived there some seven years

ago, and has continued to do so every time I return. The warmth and love that she

and her family have shown me represent the best Kazakhstan has to o�er.

I also owe an enormous debt to my friends and colleagues. Majority-female cohorts

are an anomaly in the field of political science, and apparently, ours was rumored to

reflect some of the negative stereotypes often attached to groups of women. While at

happy hour recently, we agreed that the exact opposite was true. The support and

comradery that my fellow graduate students have provided have been integral to my

success at Ohio State, not inimical to it. In particular, Gabriella Lloyd, Lauren Elliott-

Dorans, Alexandra Castillo, Wei Ting Yen, Lauren Ratli�, Kristine Kay, Paul DeBell,

Aisha Bradshaw, and Jason Morgan provided feedback, counsel, and companionship

that made it possible to enjoy graduate school, and not just survive it. Anthony

Mecca has been a steadfast roommate and friend, as well as a dedicated bunny-

caregiver during my wanderings. My fellow tovarishi in post-Soviet studies, especially

Kyle Marquardt, Hannah Chapman, and Rachel Ostrow, helped me laugh through

the tough moments and shared the joy that is Georgian cuisine in the better ones. In

Michigan and elsewhere, Amy Shamroe, Nissa Salvan, Jessica Pociask, Alissa Briggs,

Sarah Butcher, Daniel Follmer, Mark Kelly, and George Hamzik helped remind me

that there is a life outside academia, and that it tends to have better beer.

Finally, my parents have always encouraged me to pursue my curiosity about

whatever interested me, whether that was frogs in the backyard at age 10 or a country

vi

thousands of miles from home at age 20. I still remember my father recounting how

one of his colleagues in court, upon hearing that I was going to Russia, asked him,

“Why on earth would you let her go there?!” In typical form he responded, “Why

wouldn’t I?” I know it hasn’t been easy to let the only chick fly so far from the nest.

Thank you for giving me wings (and more than once, being the wind beneath them).

This thesis is dedicated to you, Mom and Dad.

vii

Vita

2005 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .B.A. with Honors, History, GrinnellCollege

2006 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .M.A. with Distinction, Russian Stud-ies, European University at St. Peters-burg

2013 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .M.A., Political Science, The Ohio StateUniversity

2014-present . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .PhD Candidate,The Ohio State University.

Publications

Hanson, Margaret “Legalized Rent-Seeking: Eminent Domain in Kazakhstan.” Cor-nell International Law Journal, Forthcoming July 2017.

Fields of Study

Major Field: Political Science

viii

Table of Contents

Page

Abstract . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

Dedication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

Acknowledgments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

Vita . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . viii

List of Tables . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xi

List of Figures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xii

1. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

1.1 Authoritarian Rule...by Law? . . . . . . . . . . . . . . . . . . . . . 41.2 Courts and Kazakhstan . . . . . . . . . . . . . . . . . . . . . . . . 81.3 Theoretical Overview . . . . . . . . . . . . . . . . . . . . . . . . . . 121.4 Methods & Data . . . . . . . . . . . . . . . . . . . . . . . . . . . . 151.5 Plan of the Dissertation . . . . . . . . . . . . . . . . . . . . . . . . 21

2. Theory . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

2.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 242.2 Autocrats & Institutions . . . . . . . . . . . . . . . . . . . . . . . . 29

2.2.1 How Autocrats Rule . . . . . . . . . . . . . . . . . . . . . . 332.2.2 Institutions Matter? . . . . . . . . . . . . . . . . . . . . . . 39

2.3 Theory . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 462.3.1 Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 552.3.2 Courts & the Regime . . . . . . . . . . . . . . . . . . . . . 592.3.3 Citizens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68

2.4 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72

ix

3. Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75

3.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 753.2 Law in Autocracies – an Overview and a Puzzle . . . . . . . . . . . 773.3 Law as Communication . . . . . . . . . . . . . . . . . . . . . . . . 833.4 Property and Eminent Domain in Kazakhstan . . . . . . . . . . . . 88

3.4.1 Characterizing Land Rights . . . . . . . . . . . . . . . . . . 883.4.2 Eminent Domain . . . . . . . . . . . . . . . . . . . . . . . . 91

3.5 Birth of a Legal Conflict . . . . . . . . . . . . . . . . . . . . . . . . 953.6 Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108

4. Courts & the Regime . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111

4.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1114.2 Literature Review . . . . . . . . . . . . . . . . . . . . . . . . . . . 1134.3 Theory . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119

4.3.1 Monitoring Corruption . . . . . . . . . . . . . . . . . . . . . 1204.3.2 Dispersing Dissent . . . . . . . . . . . . . . . . . . . . . . . 1294.3.3 Participation – for the Regime . . . . . . . . . . . . . . . . 132

4.4 Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1344.4.1 Monitoring . . . . . . . . . . . . . . . . . . . . . . . . . . . 1344.4.2 Dispersion . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142

4.5 Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 151

5. Why Do Citizens Participate? . . . . . . . . . . . . . . . . . . . . . . . . 153

5.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1535.2 Literature Review . . . . . . . . . . . . . . . . . . . . . . . . . . . 1555.3 Theory . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1605.4 Data and Methods . . . . . . . . . . . . . . . . . . . . . . . . . . . 1665.5 Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 170

5.5.1 Who Goes to Court? . . . . . . . . . . . . . . . . . . . . . . 1735.5.2 Why Do They Go to Court? . . . . . . . . . . . . . . . . . . 177

5.6 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 183

6. Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 188

Bibliograpy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 194

x

List of Tables

Table Page

4.1 Protest as a Strategy . . . . . . . . . . . . . . . . . . . . . . . . . . . 144

5.1 Going to Court: Neighbor vs. Government . . . . . . . . . . . . . . . 154

5.2 Responses to Seizure . . . . . . . . . . . . . . . . . . . . . . . . . . . 178

5.3 Choosing Court as a Strategy . . . . . . . . . . . . . . . . . . . . . . 179

5.4 Choosing Bribery as a Strategy . . . . . . . . . . . . . . . . . . . . . 180

5.5 Going to Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 187

5.6 Likelihood of Receiving Higher Compensation . . . . . . . . . . . . . 187

xi

List of Figures

Figure Page

3.1 High-Rise Buildings in Astana . . . . . . . . . . . . . . . . . . . . . . 106

4.1 BTI Rankings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116

4.2 One family’s correspondence concerning seizure. . . . . . . . . . . . . 149

xii

Chapter 1: Introduction

Introduction

Courts and law are ubiquitous throughout the world, from the most democratic

to the most repressive authoritarian regimes. In the latter, however, they are often

assumed to be either rough tools for suppressing opposition or ornamental ‘window-

dressing.’ This description is supported by the high levels of corruption, low judicial

independence, and pro-state bias that characterize most non-democracies (Transfor-

mation Index , 2016). As a result, there was long a dearth of scholarship on authoritar-

ian law and courts (Moustafa, 2014); even today, two edited volumes on authoritarian

courts (Ginsburg & Moustafa, 2008) and constitutions (Ginsburg & Simpser, 2013)

comprise a large proportion of work on the topic. This lacuna stems in part from

the fact that law and courts rarely provide or enforce, respectively, the “rules of the

game” (North, 1990) in authoritarian regimes. Instead, informal institutions take on

this role in authoritarian regimes. Yet, a growing literature on authoritarian parties

and elections (Reuter et al., 2016; Svolik, 2012; Blaydes, 2010; Magaloni & Kricheli,

2010; Gandhi & Lust-Okar, 2009; Gandhi, 2008; Brownlee, 2007; Magaloni, 2006) has

forcefully swept aside the broad generalization that formal institutions play no real

1

role in authoritarian governance; to the contrary, while they function di�erently than

in democracies, they are often integral to authoritarian rule.

However, this same kind of sweeping generalization continues to characterize most

discussions of civil law and courts in authoritarian regimes – especially when it comes

to disputes between citizens and the state. At first blush, this dismissal makes intu-

itive sense: participation in civil cases, unlike in criminal cases, is voluntary. Why

would any rational individual willingly engage in litigation against the state when

courts are dependent, corrupt, and biased in favor of the regime? Indeed, when I

asked respondents in Kazakhstan – an unambiguously authoritarian regime that fits

this description well – how much they trusted the courts, the response was invariably,

“not very much.”1 This persistently low level of trust in law and courts in regimes like

Kazakhstan has created the expectation that citizens there would steer clear of legal

disputes with the state. Yet, despite low levels of trust in the courts, Kazakhstan

sees thousands of citizen-state disputes in civil courts each year (Supreme Court of

the Republic of Kazakhstan, 2016). Moreover, when given a scenario featuring con-

flict with a neighbor and a similar scenario with the state, survey respondents were

significantly more likely to choose to go to court against the state than against their

neighbor.2 Even more puzzling is the fact that an authoritarian regime which reg-

ularly uses force against those who defy it takes the time-consuming and seemingly

redundant step of resolving these conflicts in court. Why?

In this dissertation, I argue that authoritarian regimes use civil courts to monitor

local o�cials’ corruption. It is in the dictator’s interest to allow his subordinates to

1Respondents were asked to rate the degree to which they trusted the courts on a scale from 1to 5, with 5 being “completely trust”; most chose 2.

2Please see Table 5.1 for the comparison, which is derived from original survey data.

2

abuse their positions for personal profit; doing so helps ensure their loyalty. However,

the dictator is not indi�erent to how they engage in corruption. In particular, rent-

seeking schemes that drain the central budget or threaten the regime’s carefully-

maintained image of stability and total control must be controlled. Courts help with

this management task by providing information on corruption and enforcing top-down

limits on illicit behavior by regional and local o�cials. In addition, they allow the

regime to assess citizens’ responses to o�cials’ rent-seeking, and disperse the potential

for protests that arises in response to those o�cials’ predatory behavior.

I evaluate this theory using a mixed-methods approach, which employs a range of

qualitative and quantitative data to test its observable implications. The dissertation

uses a common source of citizen-state conflict – eminent domain, or the state seizure

of private land for public needs – as a lens to examine this issue. In addition, this

focus helps control for the impact that di�erent laws or procedures might have on

actors’ incentives. Eminent domain, or government seizure of private land for public

needs, is a form of legal dispossession around the world, including in highly-developed,

Western democracies like the United States. In rapidly-growing urban areas, eminent

domain o�ers a tempting rent-seeking opportunity; consequently, it is frequently rife

with corruption. This authority frequently falls to local governments; in the case I

examine, the post-Soviet, Central Asian state of Kazakhstan, it belongs to appointed

local executives known as akims. From China to Vietnam, citizens are regularly dis-

possessed of their land by municipal authorities – purportedly for public-use projects,

but in reality to make way for lucrative developments that benefit the local o�cials

orchestrating the seizure. This expropriation brings citizens and state o�cials into

direct conflict, and in Kazakhstan, has generated a spate of civil court cases.

3

This dissertation’s distinctive contribution is to our understanding of authoritarian

governance. While there is a robust literature on how autocrats use formal, nominally-

democratic institutions to sustain their rule (see Magaloni & Kricheli (2010) and

Gandhi & Lust-Okar (2009) for reviews), courts have been largely absent from the

discussion. A nascent literature focused on authoritarian courts has largely been

restricted to criminal courts or judicial independence (see Moustafa (2014) for a re-

view). Yet, numerous authoritarian regimes have highly dependent, corrupt civil

court systems which, despite the widespread assumption that citizens will strive to

avoid them in conflicts with the state, continue to see burgeoning caseloads. Data

on cases between state o�cials and citizens in authoritarian regimes are extremely

limited, but in addition to existing work on China, the author’s preliminary research

found many civil cases involving state o�cials in Azerbaijan, Kyrgyzstan, and Rus-

sia. By helping illuminate civil courts’ role in managing corruption, this dissertation

not only expands our knowledge of formal institutions’ role in autocracies; it also

contributes to the literature on corruption and the relationship between informal and

formal institutions.

1.1 Authoritarian Rule...by Law?

The prevalence of citizen-state legal disputes in Kazakhstan and other authoritar-

ian regimes like China suggests that we should not so lightly dismiss the role of courts

and law in dictatorships. In this dissertation, I argue that authoritarian regimes use

civil law and courts to settle disputes with citizens because they help manage corrup-

tion and its consequences. Corruption often enters discussions couched in sweeping,

negative terms: it is something to be ‘eliminated’ or ‘rooted out.’ Autocrats, too,

4

join this normative approach: in Kazakhstan, President Nazarbayev promised in an

interview that, “Everything that has been stolen will be returned to the state, and

the people who violated the law will be punished as they deserve” (Adilova, March

2017).3 However, the term “corruption” often remains undi�erentiated, despite the

fact that it encompasses a range of behavior, from preferential awarding of govern-

ment contracts to outright bribery or theft of state funds. Corruption can also be

integral to maintaining the patron-client relationships through which many, if not

most, autocrats rule. Even the most personalist dictatorship needs the assistance

of regional and local executives to govern, and often, their appointment comes with

tacit approval to use formal authority for private ends. At the same time, too much

(or the wrong kind of) corruption can generate popular backlash and drain central

budgets; in short, it can undermine authoritarian stability. Thus, the dictator must

strike a delicate balance between allowing corruption and controlling it.

This is an important issue because it complicates the often highly-abstracted re-

lationship between a dictator-led regime and the citizens who inhabit it. This re-

lationship is often far more complicated than a simple, dichotomous “dictator” vs.

“everyone else.” For example, the same respondent who I listened to derisively criticize

the akim (city mayor) also expressed her support for the country’s president (Ethnog-

raphy, Astana, 9/2015); similarly, in China, low trust in municipal o�cials does not

translate into a collapse of support for the central regime (Cui et al., 2015). From local

police to land committees, citizens and their interactions with state o�cials are cen-

tral to understanding how politics work in any regime, including non-democracies.

However, actors outside of the dictator and his inner circle are frequently absent

3“I vot sejchas vse ukradennoe budet vozvrashheno gosudarstvu, i chelovek, narushivshij vse ravnopoluchit svoe. My ne perestavaja budem nad jetim rabotat.”

5

or lack any agency in studies of authoritarian polities; others may incorporate the

masses, but reduce the state and the regime to a single, top-heavy elite group (Ace-

moglu & Robinson, 2005; Boix, 2003). In one sense, this focus on the dictator and

his immediate “selectorate” (De Mesquita et al., 2005) makes perfect sense; certainly,

it is impossible to understand authoritarianism without them. However, focusing

solely on top-level elites overlooks key arenas of state-society interaction and their

implications for authoritarian governance, stability, and regime change. In particu-

lar, dictators must delegate autority to local leaders, but in doing so, inevitably run

into the principal-agent problems common in any large organization; these issues are

arguably even more endemic to authoritarian regimes due to the di�culties the dicta-

tor faces in getting accurate information (Wintrobe, 1998). Moreover, while threats

often emerge from intra-elite splits or the military, recent history has seen a spate

of seemingly stable authoritarian regimes – from Serbia to Tunisia – fall to popular

protests, and these protests were driven in large part by dissatisfaction with local-level

state corruption (Gause III, 2011).

We may not be able to predict exactly when these popular protests will erupt, but

we can turn our attention to the conditions that facilitate them – and how dictators

seek to deal with such threats before they fully materialize. For example, key in

the Tunisian and other Arab Spring uprisings were populations frustrated with weak

rule of law, widespread corruption, and expropriation by government o�cials (Ibid).

Indeed, although political power may be concentrated in the hands of a president or

general, most citizens’ direct interactions with the regime occur through subnational

branches of government. Widespread corruption and malfeasance at the local level can

slowly hollow out support for the regime, leading to an eventual collapse of legitimacy

6

and creating a situation akin to a dry forest that needs but a spark to ignite. Though

measuring popular support or legitimacy in autocracies poses enormous hurdles for

measurement, that does not mean that as scholars, we should fail to consider it; after

all, it is foolhardy to imagine that dictators remain blissfully unaware of the danger

its absence can pose.

One way to prevent this collapse of support is to clamp down on corruption by

investing in rule of law. However, not only is this easier said than done, for many au-

tocrats (and not a few democratically-elected representatives), encouraging equality

before the law would undercut the foundation on which they base their rule: “power

verticals” constructed through highly centralized, top-down patron-client ties, with

the ruler as the ‘ultimate patron’ (Hale, 2015). These hierarchical patron-client re-

lationships in turn depend on subjective enforcement of law, with the saying, “For

my friends, anything; for my enemies, the law” painting an accurate picture of the

‘rule by law’ that characterizes many authoritarian regimes (Ginsburg & Moustafa,

2008). According to this logic of clientelism, local o�cials’ loyalty to the central

regime hinges on their ability to enjoy special privileges, including operating outside

the law and using their political authority for personal gain. While quite e�ective as a

means of control, this system of governance also gives rise to high levels of corruption

– and the dangers discussed in the previous paragraph.

Dictators are thus faced with a dilemma: they rely on corruption to rule, but

letting it run amok is also risky. In this dissertation, I argue that dictators resolve

this conundrum by using civil courts to manage corruption. They do so in two ways.

First, civil courts provide information – information about which local governments

take corruption too far, and about citizens’ reactions to those practices. Second,

7

courts help disperse the potential for protest that arises from local o�cials’ preda-

tory schemes. Both these functions, however, require voluntary citizen participation

in courts. If participation occurs thanks to coercion, it may backfire and increase

incentives for collective protest, and the information the autocrat receives will lack

meaning. Thus, we also need to understand why citizens use corrupt, highly depen-

dent courts to resolve disputes with state o�cials; I argue that they do so because

courts o�er the potential for a regime-sanctioned (and consequently, lower-risk) means

to achieve concrete improvements over their status quo ante.

1.2 Courts and Kazakhstan

This dissertation started out as a study of subnational variation in property rights

security in Central Asia. However, during initial interviews in Kazakhstan, I was

unprepared for the degree to which law featured in nearly every discussion. Most

research on property rights suggests that in an authoritarian regime with weak rule

of law, the formal rules mattered little for security of property; yet, in interviews

with everyone from property owners to business experts, more often than not, legal

parameters became the focal point of our discussion. Even more surprising was that

although, as expected, respondents cited the state as the greatest threat to property

rights, they also frequently referred to court cases between citizens and the state.

Indeed, when I looked at civil court dockets, they listed hearing after hearing between

citizens and state o�cials.

The appearance of these cases was puzzling because Kazakhstan is the epitome

of a regime where we should not see these disputes in court. A former Soviet Repub-

lic in autocrat-packed Central Asia, Kazakhstan has been ruled by the same leader,

8

President Nursultan Nazarbayev, since its independence in 1991. He transitioned

easily into this role from his previous one as the First Secretary of the Kazakh SSR.

In this time, Nazarbayev has e�ectively and systematically sidelined any viable op-

position, and public expressions of dissent are not tolerated (Freedom in the World:

Kazakhstan, 2016). A law enacted in 2010 named him “First Leader of the Nation,”

a status which grants him immunity from any future prosecution (Nurshayeva, June

2010), and he has received over 97% of the vote in every presidential election. His

ruling party, Nur Otan (“Light of the Fatherland” in Kazakh), also occupies an over-

whelming majority of the seats in Parliament (Kazakhstan profile - Leaders, Sept

2015). Political opponents have consistently found themselves subject to arrest on

politically-influenced grounds or forced to flee abroad, and the country ranks a dismal

157th of 180 states in the 2017 World Press Freedom Index (World Press Freedom

Index: Kazakhstan, 2017). In addition, like most authoritarian regimes, Kazakhstan

has a judicial system that lacks independence from the executive (Transformation

Index , 2016). Unsurprisingly, then, the country has been classified as unambiguously

authoritarian every year since independence, and its “political freedom” ranking was

recently downgraded by Freedom House to the lowest possible level (Freedom in the

World: Kazakhstan, 2016). In short, Kazakhstan is not a regime where we would

expect either the regime or citizens to turn to courts in disputes with one another.

Moreover, Kazakhstan is characterized by widespread corruption. In interna-

tional governance rankings, it regularly scores toward the bottom of the pack. Ac-

cording to Transparency International’s national survey, corruption is preceived as

most widespread among the police and in courts (Transparency International, 2014).

Nearly a third of those in the survey who had participated in a court case admitted

9

that bribery played a role, and the sensitivity of that question means that response

bias likely makes this an underestimate (Ibid). Similarly, interviews with attorneys

about citizen-state cases yielded the diplomatic response that they were “very compli-

cated” and more often than not, “losing.”4 Thus, the question remained: why would

citizens turn to courts in these disputes, and equally puzzlingly, why would the regime

expend tremendous time and resources on these cases if they were nothing more than

an elaborate farce?

This puzzle is deepened further by the fact that state o�cials’ use of courts in these

conflicts clearly represented a deliberate, centrally-orchestrated strategy. This stems

from the high degree of dependence courts have on the executive. While Kazakhstan

inherited much of its legal system from the Soviet system, it also made extensive

changes. Its primary Soviet-era inheritance was its civil law system. This means that

judicial review is not used, and consequently, each case must be decided indepen-

dently in accordance with existing legislation; in addition, judges lack the power of

judicial review. Instead, arguments that a law is unconstitutional must be brought

before a separate tribunal. In the first years after independence, Kazakhstan had a

Constitutional Court that heard such cases. However, it was replaced in 1995 by a

much more hamstrung Constitutional Council: besides serving on the Council, the

president appoints 2 of its 7 members, with the remainder selected by the upper

and lower houses of parliament (which are also controlled by the president’s ruling

party) (Freedom in the World: Kazakhstan, 1998). Citizens cannot bring appeals

to the Constitutional Council, further cementing the executive’s control. Similarly,

4““Ochen’ slozhnye; proigravshie.”

10

after independence, district and appeals courts depended heavily on local and re-

gional authorities for their budget and other resources (Expert Interview 8, Almaty,

6/2015). However, with the introduction of a new law on the judiciary in 2000, they

were brought under much firmer central control. Judges at every level – down to the

municipal/district courts – are now appointed directly by the president and serve at

his pleasure (Konstitutsionnui Zakon “O sudebnoi sisteme i statuse sudei Respubliki

Kazakhstan” , 2015). Court budgets are also provided directly from the republican

budget (Expert Interview 8, Almaty, 6/2015). Courts’ heavy dependence on the cen-

tral government means that the fact we see so many citizen-state disputes in civil

courts is unlikely to be an accident, and probably is a result of central policy.

Moreover, three interlocking institutional mechanisms ensure that courts remain

compliant agents of the executive: hierarchical organization, open appeals, and the

institution of the procuracy. The latter is a Soviet-era institution which, in addition

to prosecution, performs supervisory and investigative functions: it is responsible

for ensuring that courts and other government agencies serve the state’s interests,

and investigates and prosecutes those that do not (Smith, 1996). For example, in

citizen-state disputes, a procuror is generally present to ensure compliance with state

interests. In addition, Kazakhstani courts are organized hierarchically. Higher courts

evaluate the work of lower courts when their decisions are appealed, and an open

appeals system (in civil cases, either party has the right to file an appeal) means

that lower-court judges run a high risk that any decision they make will be reviewed.

Each court also has a chairperson (presedatel’) who is responsible for supervising the

members of that court. While formally each judge is independent, in practice, this

chairperson has a great deal of authority (Attorney Interview 25, Almaty, 12/2015).

11

These three mechanisms, in combination with courts’ dependence on the center for

appointments and financing, translate into a judicial system which closely reflects the

stereotype of authoritarian courts as ‘creatures of the dictator.’

Consequently, the thousands of citizen-state disputes that appear on court dockets

in Kazakhstan each year are extremely unlikely to have gotten there independent of

central influence. Yet, existing literature o�ers scant explanation for why a highly

repressive, personalist dictatorship would take the time-consuming and seemingly-

redundant step of using courts to resolve disagreements between ordinary citizens

and state o�cials. This dissertation takes on that puzzle.

1.3 Theoretical Overview

It does so in three parts. I begin by examining the role that law plays in shap-

ing the emergence of legal conflicts. I focus on seizures under eminent domain, and

specifically, why the Law on State Property has become an axis of conflict in these

situations. I use this example to illustrate how, far from being devoid of significance,

law can serve as a key means of communication from the dictator to his subordinates.

It does not constrain the dictator, but instead articulates the central regime’s pref-

erences to o�cials in other parts of the state organization, and in doing so, shapes

their expectations and behavior. In this role, law shifts perceptions of risk; when the

dictator’s preferences have been codified in formal statutes, the risk associated with

actions that contradict them rises. In this example, after 2011, the Law on State

Property increased the particular risk associated with rent-seeking schemes that in-

flated the value of land seized for state needs; this was a deliberate attempt by the

central regime to reduce over-spending from the state budget. At the same time,

12

the law’s introduction injected legal ambiguity into conflicts over eminent domain.

That ambiguity made it possible to accommodate a range of di�erent outcomes in

judicial decisions, while remaining technically within the law. Individuals with strong

informal connections to the regime can take advantage of their ties to receive the best

of these varied legal outcomes; most others find themselves with the worst. Thus,

qualitative accounts suggest that the compensation awarded in most eminent domain

disputes has been restricted in accordance with the central regime’s mandate. There

has also been an unexpected externality: it has incentivized local o�cials to target

ordinary citizens rather than the state budget in their rent-seeking. However, because

the former bears the costs, this is not a driving concern for the central regime.

In the second part of my argument, I expand this focus on the state as an organi-

zation. I argue that civil courts constitute both a reliable agent for the dictator (at

least, in interactions with state o�cials) and an arena for state-society interaction in

which the part of “the state” most often encountered is local-level executives. The

central regime invests in courts to gather information about these o�cials’ corrupt

activities, and to regulate citizens’ responses to their predatory actions. Specifically,

local o�cials’ rent-seeking often generates discontent among their constituents, who

are the most frequent targets, and those grievances may translate into public protests.

Thus, the central regime requires o�cials to funnel these disputes through a lengthy

legal process; as individual cases work their way through the judicial system, citizens’

ability to coordinate for any collective action is undermined and the threat of protest

dispersed. At the same time, by subjecting their actions to scrutiny by judges, local

o�cials can “verify” that their actions are in compliance with top-down, informal

limits on rent-seeking.

13

Ironically, the regime’s need to impose limits on rent-seeking creates a thin rule of

law and opens up limited opportunities for citizens in the courtroom. Though citizens

do not trust courts, they believe they have a chance of mitigating their property loss

by appealing to the dictator through the courts. This is the focus of the third portion

of my theory: citizens’ choice to engage with state o�cials in an institutional setting

that they widely acknowledge is biased against them. Local executives initiate most

litigation over eminent domain, but because these are civil suits, citizens can choose

whether or not to pursue their case. If they do not, then they simply receive what-

ever compensation the akimat initially o�ered. This is exactly what most literature

predicts; for citizens, it would seem pointless to spend the time, resources, and e�ort

in a futile wrestling match with Leviathan. However, many do, because they believe

that while they will not keep their property, there is some chance of receiving higher

compensation. Given the risk associated with protests, many choose to take a gamble

in court. They are also more likely to believe they will be successful if they enjoy

informal ties with the regime, but belief in some chance of a favorable decision, rather

than an ability to use bribes or connections in court, drives their decision to try their

luck at litigation. For some, that strategy pays o�: while the chances of receiving

more compensation are far from guaranteed, they are also far from zero. Allowing

courts to sometimes rule in citizens’ favor in this way (while favoring state o�cials

overall) motivates the continued participation that the dictator needs for courts to

e�ectively perform their monitoring and dispersion functions.

In short, this dissertation proposes that civil courts monitor top-down limits on

local o�cials’ corrupt activities. At the same time, because they do not impose

criminal or administrative charges or penalties, these courts do not severely censure

14

o�cials (and thus, allow them to continue to use their positions for personal profit). In

addition, courts help manage the potential for protests that some of these rent-seeking

practices generate. They do so while o�ering just enough incentives for citizens to

choose to participate in cases involving the state; this means that courts continue

to provide the central regime with good information and keeps them from devolving

into a farce. By using pre-existing rules throughout, the dictator can also claim that

o�cials’ activities are “legal” – i.e., justified based on impartial rules – and therefore

legitimate. Thus, civil courts help limit and legitimize local o�cials’ rent-seeking,

while facilitating its overall practice. In doing so, they help stabilize the regime.

1.4 Methods & Data

Throughout this dissertation, I utilize causal case study methods outlined by

(Beach & Pedersen, 2016), with reference to specific tests described in Bennett &

Checkel (2014). Specifically, I use within-case, non-temporal process tracing. Rather

than elucidating di�erences over time or among cases, this approach disentangles

theory into discrete components, and asks, “Which fingerprints would each part of

the causal process be expected to leave?” (Beach & Pedersen, 2016, p.184). In

other words, it involves “mapping. . . the structure of the argument in relation to

a given causal hypothesis and developing predictions about the evidence the rela-

tionship should leave in the form of proposition and supporting propositions about

evidence. . . ” (Ibid, 157). It then compares the available evidence to those proposi-

tions. More succinctly, I begin each chapter by outlining what we should expect to

see if each component of my theory is correct, and then evaluate the degree to which

available data reflect these observable implications.

15

In taking this approach, I rely primarily on two types of evidence described by

(Beach & Pedersen, 2016, p. 188): trace evidence and account evidence. The first

refers to “evidence whose mere existence provides proof,” while the second “deals

with the content of empirical material.” For example, I argue that authoritarian

regimes use civil courts to monitor local o�cials’ corruption; if true, it follows that

they should collect information on court cases involving these activities. The o�cial

report that compiled this information would constitute trace evidence, but could also

be considered account evidence based on its contents (for example, it discusses how

o�cials have been sanctioned following discoveries made in civil cases). Much of the

data that comprises this evidence is qualitative: interviews with relevant actors and

ethnographic observation of court hearings and in neighborhoods impacted by seizure

feature heavily. However, I also draw on an original survey of landholders in three

regions of Kazakhstan and court records. At some points, I also depart somewhat

from this approach and use survey experiments to address a theoretical proposition.

In short, rather than relying on a single data source or method, I use the best tools

available for testing each theoretical component.

Within-case, non-temporal process tracing is an appropriate strategy for testing

my theory for two reasons. First, this is a theory of equilibrium institutions in autoc-

racies. Following courts over time therefore o�ers little traction on the mechanisms

it outlines; instead, it calls for weighing the degree to which the evidence reflects

observable implications of the theorized causal mechanisms. Second, extrapolating

behavioral motivations in an authoritarian regime presents unique challenges that

make comparative or over-time approaches extremely di�cult, often verging on im-

possible (at least, without threatening the researcher’s or respondents’ security). Few

16

if any dictators will openly admit that they permit corruption or enforce law di�er-

ently for regime elites and ordinary citizens; just as they insist that their elections

are free, fair, and democratic, they also voice an unbridled commitment to rule of

law. This phenomenon of “what you see is not what you get” (Schedler, 2009) makes

it di�cult to ever find the proverbial “smoking gun.” Access to information is also

di�cult to achieve systematically, and instead depends on the extent and perceptions

of regime repression, cultivating a trusted network of contacts, and to a large extent,

on luck. Without time-intensive, boots-on-the-ground research to develop in-depth

local knowledge and connections, most information available will simply reflect the

regime’s o�cial stance. Accepting that picture at face value would be akin to trusting

that a 98% vote for the dictator accurately measures citizens’ true preferences.

This approach may cause some quantitatively-oriented methodologists discomfort.

However, the alternative is to rely on inherently untrustworthy o�cial statistics and

statements, or avoid researching topics like this one entirely in highly authoritarian

regimes. I submit that neither constitutes a satisfactory approach to social science

research. While imperfect, clearly laying out a series of conditions that must be

satisfied for the theory to hold helps ensure that conclusions are not simply based

on what is found “along the way” rather than what was theorized. In this disser-

tation, that meant that I divided research into two phases: during “soaking and

poking” (Tarrow, 2004) I conducted in-depth interviews to better understand local

realities and thus, the outcome that I sought to explain; in the second, I gathered

the information necessary to evaluate my theory of why we see those outcomes. In

particular, I completed all ethnographic observation in courts, survey data collection

(including the experiments), and most semi-structured interviews in the second stage

17

of field research. Upon my return from the field, I also reviewed the case records and

other documents I had collected to determine whether they upheld or contradicted

theoretical expectations.

Data used in this approach come from the following sources: semi-structured inter-

views (conducted primarily in Russian); ethnographic observation of eminent domain

cases in district and appeals courts in the capital, Astana; an original survey of land-

holders conducted in Kazakhstan’s three largest urban areas (Almaty, Astana, and

Shymkent); two vignette experiments and one list experiment (item count question)

embedded in that survey; information gathered from court schedules and records, as

well as other legal documents provided by my sources; and finally, media and o�cial

reports in Russian and Kazakh. I focused data collection on Astana (the capital),

Almaty (the country’s ‘commercial’ capital), and Shymkent (the ‘southern capital’)

because these have been among the most rapidly-growing urban areas in the country

have seen the most conflict over eminent domain. At the same time, these regions

are geographically and culturally distinct; comparing them thus o�ers a harder test

of the theory, because for civil courts’ use as a monitoring or dispersal mechanism to

represent a stable, equilibrium institution installed by the dictator, there should be

similar outcomes across all three sites.

I conducted interviews with 109 individuals in Astana, Almaty, and Shymkent.

Though I was based in Astana, I made multiple visits of 2-3 weeks to the other two

research sites. Throughout the dissertation, I reference each interview only by its

type, number, location, and month and year conducted (for example: Attorney Inter-

view 1, Astana, 12/2015); given the sensitivity of the topics discussed, this redaction

18

is necessary to ensure respondents’ security and anonymity. I interviewed the fol-

lowing types of individuals: attorneys, appraisers, landholders, academic and NGO

representatives who were experts in economics, law, and state policy, and state o�-

cials in regional and local government o�ces. The latter two groups were identified

through their respective organizations’ web directories. I found attorneys who dealt

with land-related cases using a combination of cold calling (based on advertisements),

contact with local attorneys’ organizations, and snowball sampling. In a few cases,

I also scheduled an interview after witnessing a court hearing where the attorney

participated. Similarly, I contacted appraisers based on recommendations from lo-

cal professional associations or snowball sampling. Identifying landholders who had

been or were currently under seizure was more di�cult, and required working through

personal contacts. Landholder interviews occurred primarily in the latter half of my

fieldwork, and were designed to test the theoretical implications in each chapter.

Similarly, while I conducted some ethnographic observation in suburban areas

during theory development, all observation in Astana’s courts and in neighborhoods

that had been placed pod snosem (under seizure) occurred after setting out the main

theoretical propositions of this dissertation. In total, this included visits to three

di�erent neighborhoods in Astana and observation of 16 appeals and 24 district court

cases from Astana’s three urban districts. I was not allowed to bring in a phone or

other device to record hearings, but I was permitted to take hand-written notes. I

took these notes in a mix of Russian and English; for both interviews and ethnographic

notes, I provide the original Russian- or Kazakh-language quote wherever possible,

but in some cases, details of conversations were recorded in English.

19

The landholders’ survey involved face-to-face interviews with a random sample of

1,200 landholders5 in and around Astana, Almaty, and Shymkent. It was fielded in

two waves (Astana in May 2015, followed by Shymkent and Astana in April 2016)

by a local survey firm.6. The sample was random and stratified by municipal district

(raion). Starting points in each district were randomly selected within each urban or

suburban (bordering the city limits) district; from there, interviewers used a random

walk method until they reached the quota for each location. At each household, the

respondent who had the most recent birthday among the adult heads of household

was selected to complete the survey. If households did not complete the survey, they

were marked as missing. Interviews were conducted in either Russian or Kazakh,

according to the respondent’s preference.

The survey also embedded three survey experiments. The first two were vignettes

describing a hypothetical land conflict between the respondent’s ‘cousin’ and a neigh-

bor and between the same ‘cousin’ and the local akimat; the treatment was whether

or not that cousin had a strong personal connection to the district court. In the

surveys in the second wave, the treatment was randomized across both vignettes.

Unfortunately, in the first wave, the randomization across the vignettes failed; hence,

those results are not included in the analysis. Because the questionnaire could not

be completed using electronics, the randomization was done across versions, creating

eight paper questionnaires. Each city field o�ce of the survey firm that carried out

the survey received an approximately equal number of each version, and those ques-

tionnaires were then shu�ed to ensure randomization. The last experiment was a list

5Landholders are those who own land outright or possess long-term, inheritable use rights to it.6The di�erent waves and timing were dictated by the availability of funding

20

experiment (also known as an “item count” question). Like the vignette questions,

respondents were read a short hypothetical scenario where the akimat seized their

land and filed a civil suit against them. They were then handed a list of possible

responses and told to provide the number that they would choose; those in the treat-

ment group received a list with an extra item, “try to bribe the judge.” The di�erence

in means between the treatment and control groups provides a measure of the average

incidence of the treatment item in the population. In both waves, interviewers in each

city o�ce were given an equal number of treatment and control handouts that had

been shu�ed for randomization.

1.5 Plan of the Dissertation

The remainder of the dissertation is organized as follows. In Chapter 2, I present

the details and observable implications of the theory outlined above. The main take-

away is that civil courts help autocrats manage corruption; how they do so helps

motivate citizens to participate.

Chapter 3 sets the stage for understanding courts’ role in authoritarian governance

by reviewing how law matters for the cases which are the focus of this dissertation:

those concerning eminent domain. In particular, it traces the history of the Law

on State Property (Zakon o Gosimmushestve), which was introduced in 2011 after

millions of dollars earmarked for infrastructure development vanished – reportedly

into local o�cials’ pockets. Drawing on interviews with attorneys, appraisers, and

other experts, I examine the law’s creation and subsequent use in disputes over em-

inent domain, and find that the law helped communicate the executive’s new, firm

21

commitment to limiting inflated compensation and ‘insider trading’ in seizures for em-

inent domain. While experts’ qualitative evaluations suggest that it was somewhat

e�ective in curbing this particular form of corruption, the law has not stymied land

seizures; if anything, it has increased local executives’ incentives to engage in that

kind of rent-seeking. At the same time, the Zakon o Gosimmushestve has injected

ambiguity into legal conflicts over eminent domain by providing a contrasting (and

arguably, unconstitutional) means for calculating compensation. That it remains in

force despite vocal public criticism suggests that the regime prioritizes management

of rent-seeking, rather than its elimination.

Chapter 4 argues that by funneling disputes over eminent domain through civil

courts, the autocrat also dissipates the potential for protest. It uses a combination

of interview, ethnographic, and survey data to show that while the potential for

protest is high, open appeals and a civil law system make coordination more di�cult,

and in doing so, disperse those most likely to engage in protest. Providing some

compensation and introducing litigation for those who do not accept it causes an

initial split among victims of expropriation; those who go to court become further

divided thanks to opportunities to appeal. Gradually, the majority shift from a

strategy of voice to one of exit, and protest becomes extremely di�cult to organize. In

addition, this chapter addresses a counter-point: What happens when this approach

fails to work for the regime, and protests do occur? Here, I turn my focus to state

responses to protest – both surrounding eminent domain, and more broadly – to

demonstrate that the regime views even small-scale protests as threats, and employs

coercion in ways that suggest it is both costly and used selectively, when other means

of dealing with these issues fail.

22

Chapter 5 switches to a bottom-up perspective, and asks why citizens go to court

when they acknowledge that the system is corrupt and biased in favor of the state.

This question is critical for understanding courts’ utility for the regime, because in

order for them to fulfill the dual functions outlined in the previous chapters, citizens

need to choose to participate. Without that minimal consent, courts lose all semblance

of legitimacy, and fail to have any dampening e�ect on protest or to provide the

autocrat with useful information. The regime’s need for consensual participation

helps explain why judges sometimes decide marginally in favor of citizens, and the

insistence on having a ‘floor’ – a minimal adherence to the law – in judicial decision-

making (even while legal logic is consistently overlooked otherwise). Ironically, I

find that these conditions help motivate citizen participation; those who participate

overwhelmingly characterize ‘justice’ as improved compensation, and enough receive

it to motivate widespread willingness to turn to courts.

Chapter 6 o�ers conclusions, and discusses the dissertation’s implications for un-

derstanding authoritarian governance and stability. In particular, it argues that we

should neither dismiss authoritarian legal institutions as inconsequential, nor fall into

the trap of assuming they are designed to work according to the same principles that

shape jurisprudence in more democratic polities – even if they borrow the language

used in that context wholesale.

23

Chapter 2: Theory

2.1 Introduction

From outright coercion to subtler manipulations like electoral fraud, dictators

draw on diverse strategies to ensure their continued rule. One common practice is to

transform nominally-democratic institutions into pillars of authoritarian governance.

Under dictatorship, formal institutions and organizations like elections, political par-

ties, and legislatures “violate the liberal-democratic principles of freedom and fairness

so profoundly and systematically so as to render [them] instruments of authoritarian

rule” (Schedler, 2009, p.3). Rather than serving as a means for acceding to power,

autocrats use these institutions to address key governance challenges. Namely, they

help reduce information deficits (Magaloni, 2006; Brownlee, 2007; Blaydes, 2008), co-

opt and divide opposition (Gandhi, 2008; Magaloni, 2008), increase the number of

individuals invested in the regime’s continued rule (Svolik, 2012), and distribute pa-

tronage resources more e�ciently (Magaloni & Kricheli, 2010; Blaydes, 2010; Gandhi

& Lust-Okar, 2009). As a result, dictatorships that feature these institutions tend

to last longer (Geddes, 2003; Magaloni, 2008), be less susceptible to coup attempts

(Geddes, 2008), and are less likely to transition to democracy (Magaloni & Kricheli,

2010). In short, taking on democratic trappings benefits authoritarian stability.

24

Absent from most of these discussions, however, has been another nominally-

democratic institution present across dictatorships: courts, and in particular, civil

courts. While criminal courts have received attention from scholars interested in

how autocrats use criminal charges and codes to punish opposition – a phenomenon

nicknamed “rule by law” (Ginsburg & Moustafa, 2008) – civil courts have largely been

overlooked.7. This lacuna stems from expectations that civil courts in authoritarian

regimes will fail to protect individual rights, and rights to property in particular.

Indeed, theories of the development of rule of law tend to view property rights security

as a foundational step toward that outcome. For Olson (1993), “The same court

system, independent judiciary, and respect for law and individual rights that are

needed for a lasting democracy are also required for security of property and contract

rights.” He argues that democracy, individual rights, and economic development (for

which property rights security is a prerequisite) all hinge on autocrats’ incentives for

limiting expropriation. Clague et al. (1996) and Knutsen (2011) later confirmed this

broad link between regime type and property rights.

Yet, even in authoritarian regimes, we continue to see civil courts play a prominent

role in addressing disputes over property rights, contracts, taxation, and labor and

housing rights – issues that commonly involve citizens and the state. Among the

most common and pernicious are those between the state and citizens over property

seizure. This is not surprising: again, expropriation is an issue integral to seminal

theories of authoritarian governance. Those states strong enough to protect citizens’

property rights are also strong enough to seize them; hence, the argument follows

that states’ hands must be ‘tied’ for secure property rights or rule of law to exist.

7Key exceptions include Wang (2015); Gans-Morse (2015); Hendley (2012).

25

In North & Weingast (1989)’s account of Britain following the Glorious Revolution,

this required the expansion of parliamentary authority. Authoritarian regimes lack

that accountability to citizens, and therefore are expected to have weak property

rights protection and high levels of expropriation. Courts are absent in this account;

because they usually lack independence from the dictator, subsequent literature also

excludes them. In short, because they are not expected to constrain the state, courts

have long been viewed as inconsequential for either governance or property rights in

authoritarian regimes.

However, while all modern authoritarian regimes have courts, not all exhibit the

same degree of property rights security or rule of law (Wang, 2015). We have limited

understanding of why we see this variance and what role those courts play in securing

property rights, settling disputes (especially between citizens and state o�cials) or in

governance more broadly. In democracies, it is di�cult to imagine discussing these

topics – or governance more broadly – without addressing courts and law. Research

on other types of formal institutions in autocracies has shown that we should not

quickly dismiss them simply because they do not reflect democratic standards. It

is unlikely that we have already exhaustively catalogued the “autocrat’s toolbox”;

thus, the question of the role of courts and law under dictatorship deserves further

consideration.

In this dissertation, I re-introduce civil courts into broader discussions of au-

thoritarian institutions. I argue that even in regimes without judicial independence,

civil courts help the regime manage the costs and consequences of relying on cor-

ruption to rule. Many dictators govern through vertically-organized, patron-client

networks (Hale, 2015), and state appointments go hand-in-hand with tacit approval

26

to use the positions for self-enrichment; linking the two helps ensure local leaders’

loyalty. However, too much local-level corruption is also problematic because it gen-

erates negative externalities that can impact the dictator’s survival. Among these

is the potential for protest that arises when citizens become disgruntled by o�cials’

abuse of their positions – especially for expropriation. While existing literature on

regime change often emphasizes the masses’ demands for redistribution (Boix, 2003;

Acemoglu & Robinson, 2005), recent history provides potent examples of protests

that rapidly snowballed and toppled long-standing, seemingly stable dictatorships.

A key factor in these instances was popular discontent with government corruption

(Gause III, 2011). However, corruption can take many forms, and I argue that not

all of them matter equally for regime stability. Where local o�cials seek rents by

stealing from the central budget, the autocrat’s control over the resources used to

reward loyal clients and ‘purchase’ citizens’ support through public goods provision

is undermined. Corruption that targets ordinary citizens, whether expropriation or

solicitation of bribes, is therefore preferable, but again, too much can undermine le-

gitimacy and spark regime-destabilizing protests. In other words, autocrats’ strategy

for maintaining control over their subordinates can generate other, equally vexing

problems for their continued rule.

Thus, dictators need tools to manage both local o�cials’ corrupt behavior, and

the responses it engenders. I argue that civil courts help autocrats deal with both.

They monitor state o�cials who engage in corruption, while also disrupting citizens’

ability to respond collectively to those abuses. The latter function stems from courts’

hierarchical organization, open appeals, and lack of judicial precedent, which work

together to ‘divide and disperse’ the potential for collective action. By individualizing

27

what would otherwise be shared grievances, civil litigation makes it much more di�-

cult to coordinate protests. At the same time, funneling any disputes between state

o�cials and citizens through the court system helps solve the information problem

dictators face. Because citizens in authoritarian regimes fear repression, they have

little incentive to provide the dictator with accurate information; this in turn makes

him more paranoid and prone to repression, in a vicious cycle Wintrobe (1998) has

dubbed “The Dictator’s Dilemma.” Civil courts help solve this dilemma by providing

information about local o�cials’ rent-seeking activities. In this respect, they serve

a function similar to that of local elections in some authoritarian regimes (Gandhi

& Lust-Okar, 2009); however, they o�er very di�erent information than elections.

Rather than indicating overall levels of support, they provide information about spe-

cific o�cials and their actions, as well as insight into which locales or issues are

particularly problematic. The regime can then use this information to address sim-

mering problems before they spiral out of control. In fulfilling these two functions,

authoritarian courts serve as far more than a simple “rubber stamp” for the dictator’s

wishes; dictators rely on them to mediate conflicts that invariably arise between state

o�cials and society in an authoritarian system.

For either of the above two mechanisms to work, however, dictators need citizen

participation. I argue that this motivates them to allow courts provide improved

outcomes for some individuals and minimal (but secure) rights for the rest. Ironi-

cally, then, we see very ‘thin’ rule of law emerge from pervasive corruption. In other

words, in an e�ort to consolidate authoritarianism and regulate corruption, we see

the beginnings of a system of rule of law – which is the antithesis of both. At the

28

same time, by relying on law and courts in this way, dictators risk generating popular

demand for a legal system that provides more robust protections of citizens’ rights.

The remainder of this chapter presents my overarching theory in three parts. First,

it outlines gaps in existing knowledge on authoritarian institutions and governance.

Second, it examines the underlying assumptions and conditions relevant to my theory,

before turning to discuss law and courts’ role in managing the relationship between

state and society in an authoritarian regime. Throughout, it uses a rational-choice

approach and disputes over eminent domain, or the seizure of private land for public

needs, as a lens for examining these broader issues.

2.2 Autocrats & Institutions

Few contemporary authoritarian regimes identify themselves as such. Instead,

they cloak illiberal tendencies in the formal trappings of democracy, while depending

on the informal, subjective application of state power to rule (Diamond, 2002). As

Lauth (2015, p.63) points out, while in democracies “informal institutions such as

clientelism and corruption constitute a conflictive relationship, in autocracies they

can be classified as complementary.” This reliance on di�cult-to-trace informal in-

stitutions can create problems not only for identifying and classifying dictatorships

(Svolik, 2012, p.22), but also for understanding how they are governed: what you

see is not what you get. For example, elections are the product of two unobservable

factors, popular preferences and regime manipulation (Schedler, 2009). The regular

presence of the latter makes it tempting to disregard the role of the former, but doing

so neglects a key part of the picture. Similarly, autocrats highlight their commitment

29

to law and justice (even going so far as to create a ‘Constitution Day’ holiday (Nur-

sultan Nazarbayev Congratulates Kazakhstanis on Constitution Day, 2016)), but in

practice, impartial courts and equality before the law are absent. However, this does

not mean that that law and courts exist solely for show; like popular preferences in

authoritarian elections, their influence is simply more di�cult to parse out.

That said, this incongruence between de jure and de facto makes distinguishing

what actually comprises the “rules of the game” (North, 1990) very di�cult. In

many regimes, the disconnect between the two is so blatant that it invites dismissal;

if the state regularly ignores the law, how can it matter (save for appearances) – and

why bother with courts? The resulting temptation to characterize these formal legal

institutions as ‘empty’ or ‘meaningless’ is especially strong in regimes where rulers

derive political authority from control over vertically-organized patronage networks;

in such contexts, power stems first and foremost from personal ties (Hale, 2015).

In such regimes, access to power and wealth are conditional on personal loyalty to

the regime, and that loyalty criterion in turn necessitates unequal application of

rules. Thus, countries characterized by pervasive clientelism tend to have weak rule

of law. Very often this ‘unequal application’ provides opportunities for rent-seeking,

with state o�cials using their authority to create artificial monopolies or otherwise

manipulating regulations for their own gain. Indeed, this is a relatively ‘cheap’ means

for dictators to reward their clients because it requires little more than an appointment

and turning a blind eye. It also provides an e�ective tool for keeping subordinates in

line – those whose loyalty comes into question can easily be strung up on very real

corruption charges.

30

This divergence between formal and informal rules contributed to the long-standing

assumption among scholars that formal institutions were little more than “window-

dressing” (Moustafa, 2014). While a burgeoning literature on authoritarian parties

and elections has eroded arguments that the former constitute mere ornamentation,8

the assumption that broadly, informal ties trump any formal, “parchment” institu-

tions (Carey, 2000) – and especially, that law fails to constrain politicians or state

o�cials – remains implicit in much, if not most, work on authoritarianism. Because

vertical accountability flows upwards, state o�cials have little obvious reason to avoid

blatantly violating citizens’ legal rights. Autocrats’ ability to change or break the law

according to their preference further compounds law’s inability to constrain the state.

As a result, comparative politics’ mantra that “institutions matter” (Gandhi & Ruiz-

Rufino, 2015, p.1) has, more often than not, excluded law in authoritarian regimes.

This description also applies to legal organizations – namely, courts. Similar to

law, “There has been relatively little research on the dynamics of judicial politics

in non-democracies” (Ginsburg & Moustafa, 2008). Yet, Wang (2015) shows that

authoritarian regimes exhibit significant variance in good governance: despite being

unambiguously authoritarian, some regimes feature courts that e�ectively and impar-

tially enforce rules. For example, Singapore and China perform better on governance

measures than many democracies, and this can be traced in large part to di�erences

in judicial enforcement (Ibid). Moreover, in the vast majority of legal disputes, there

is little obvious reason to expect that authoritarian states would not find having im-

partial, e�ective third-party enforcement advantageous. Indeed, this is the crux of

Hendley’s (2012) argument: she finds that need has driven Russians to turn to courts

8See Gandhi & Lust-Okar (2009) and Magaloni & Kricheli (2010) for reviews.

31

in increasing numbers, as long as they do not expect the case to be subject to interfer-

ence by state o�cials. For autocrats, providing a forum for resolving private conflicts

can have positive externalities. In particular, secure property rights help ensure that

individuals and businesses can invest with confidence, comfortable in the knowledge

that they will be able to retain the profits from doing so; this lowers transaction

costs and contributes to economic development (North, 1990). Many authoritarian

regimes rely on growth at least in part to legitimize their rule, and thus have a strong

incentive to invest in institutions, like courts, that support it.

At the same time, questions of legal enforcement are inherently political, especially

with respect to property rights. Who owns (and has secure rights to) what reflects

existing distributions of political power (Lund & Boone, 2013), and dictators have a

vested interest in maintaining what North et al. (2011) term a “limited-access order,”

a type of social order that “solve[s] the problem of violence by using the political

system to create and allocate rents, arising from arrangements such as government

contracts, land rights, monopolies on business activities, and entry to restricted job

markets.” This means significant overlap among state and economic elites, with pre-

dictable consequences for property rights security: the regime has a strong incentive

to handle elites’ and regular citizens’ property rights very di�erently. In other words,

we see conflicting pressures when it comes to developing formal legal institutions and

organizations. On one hand, autocrats may invest in courts to secure property rights

and facilitate growth, while on the other, they have a strong incentive to cultivate

dependent courts that favor supporters. How do autocrats deal with these contrary

incentives within a single legal system? More broadly, what role do law and courts

play in mediating state-society property relations under authoritarianism?

32

I address these questions by examining disputes over the state seizure of private

land for public needs, a phenomenon known as eminent domain. Eminent domain

conflicts involve citizens’ attempts to secure their property rights against the state,

while the state o�cials taking land often stand to profit personally from the seizure.

Land expropriation in many countries, for example, occurs under the guise of eminent

domain, but is driven by elites’ attempts to further their own economic interests;

China is a key example (Cui et al., 2015; Rithmire, 2017), but far from the only case

among rapidly-developing countries (see Toulmin (2009) for discussion of sub-Saharan

Africa, for example). In other words, eminent domain constitutes an ideal lens for

examining how courts mediate the competing incentives outlined in the previous

paragraph.

2.2.1 How Autocrats Rule

Before theorizing the role that law and courts play in authoritarian governance, we

need to delineate problems that autocrats face when governing. Svolik (2012) divides

these into two categories: maintaining control over the masses who are excluded

from power, and power-sharing among the elites who aren’t. Gandhi similarly argues

that dictators must thwart challenges to their rule and solicit the cooperation of

those they rule (Gandhi, 2008, xvii). Both are referring to the same basic issues:

dictators cannot rule alone, and they must deal with threats (real or potential) to

their power. In addressing the former, most literature emphasizes the ruler’s “winning

coalition,” or “the subgroup of the selectorate9 who maintain incumbents in o�ce and

in exchange receive special privileges” (Svolik, 2012). Personalist dictatorships tend to

9The “selectorate” refers to “the set of people with a say in choosing leaders and with a prospectof gaining access to special privileges doled out by leaders” (De Mesquita et al., 2005).

33

feature a small, highly influential winning coalition upon whose support the dictator

depends to stay in power; these high-level elites in turn control powerful patronage

networks of their own. In e�ect, the dictator becomes the country’s ‘patron-in-chief’

of a ‘single-pyramid,’ hierarchically-organized system (Hale, 2011, 2015) or “power

vertical” (Gelman, 2011). This system is often constructed around shared identities,

such as ethnicity, clan, or religious sect (Collins, 2004, 2006; Chandra, 2007; Cammett

& Issar, 2010); in the case of Kazakhstan, both clan and region have been posited as

the key “glue” uniting sub-national governing networks, though in practice the two

are di�cult to disentangle (Luong, 2004; Schatz, 2004; Collins, 2006).

Though the top rungs of this “power vertical” directly control the next-lower level,

even the lowest rungs depend indirectly on the dictator, who sits at the apex of the en-

tire clientelist pyramid (Hale, 2011). His support or censure can lead to reshu�ing or

rearrangement of the elite, and while he does not directly appoint or supervise lower-

level appointees, all those incorporated this pyramid through appointment e�ectively

constitute his clients. By clients, I refer to a definition of clientelism as a “political

exchange...[in which] a politician (i.e., a ‘patron’) gives patronage in exchange for the

vote or support of a ‘client” (Robinson & Verdier, 2013); in an authoritarian context,

the exchange is for support or employment, and emphasizes the coercive rather than

reciprocal nature of that exchange (Hicken, 2011, p.293-294). This is in contrast to

conceptualizations commonly used with respect to democratic contexts, which imply

“a focus on ‘clientele’ that connotes a power shift from patrons to clients...in contrast

with coercion or predation” (Hale, 2015, p.23). In an authoritarian “power vertical,”

lower-level clients in particular lack independent resources of their own. Instead, they

34

depend on cultivating informal ties with higher-level o�cials in the regime. State ap-

pointments reflect the strength of these personal connections.

We can see this concretely in systems of appointments to key executive posi-

tions at the regional and local level. In Kazakhstan, the president appoints regional

executives responsible for entire oblasts, or provinces (Konstitutsiia Respubliki Kaza-

khstan, 2011, Article 87). Oblast’ leaders have expansive powers within their region

and are accountable only to the President. Their formal authority over significant

state functions10 reflects the substantial informal authority their personal ties to the

president give them. This combination of formal and informal authority with low

accountability to anyone other than the ruler makes them extraordinarily powerful,

not only nationally but also (and especially) within “their” region. They in turn

appoint district and city executives, who likewise exercise substantial informal and

formal authority within their territories (Ibid). While these local executives depend

directly on regional executives, they are also indirect clients of the President. Similar

structures appear everywhere from Russia (especially following Putin’s decision to

rescind gubernatorial elections in many regions) and China under Mao (Wintrobe,

1998), to many developing-world dictatorships.

Many if not most discussions of authoritarian governance focus on those in the

highest rungs of these “power verticals” (Gelman, 2011; Wintrobe, 1998) – the au-

tocrat’s inner circle. Indeed, the greatest threats to dictators’ rule come from his

10This includes: 1) development of drafts of plans, economic and social programs for developmentof the territory, local budget and provision of their realization; 2) management of public property;3) appointment to and release from o�ce the heads of local executive bodies, resolution of otherissues connected with organization of the work of local executive bodies; 4) exercise other powersdelegated to local executive bodies by the legislation of the Republic in the interests of local publicadministration.(Konstitutsiia Respubliki Kazakhstan, 2011, Article 87)

35

closest supporters (Svolik, 2012). Where these elites are more numerous, he can bet-

ter manage this danger by playing elites o� one another; in regimes that inherit a

more limited elite, rifts are more common and more likely to translate into open con-

flict (McGlinchey, 2011). There is thus good reason to focus on the dictator and/or

other high-level elites in authoritarian regimes when discussing governance; however,

doing so to the exclusion of the other ‘rungs’ in the network overlooks additional

challenges to authoritarian governance. These include: (1) principal-agent problems

at every level of the ruler’s network, but especially among those further-removed from

the executive’s direct control,11 and (2) maintaining an e�ective monopoly on con-

trol over resources that sustain the autocrat’s patron-client network. Both require

e�ective and far-reaching monitoring and enforcement; without the expectation that

those who depart from the autocrat’s preference may be caught and censured, the

entire clientelistic network that sustains his rule risks unraveling (Hale, 2015, p.31).

How dictators deal with these issues – especially monitoring – is curiously absent

from most extant theories of authoritarianism, however. Instead, they tend to em-

phasize the ability of states to solve an enduring problem of credible commitment:

those states strong enough to constrain citizens from breaking the law are also strong

enough to ignore it themselves. This approach originates with North & Weingast

(1989), who trace the simultaneous rise in property rights security and parliamentary

authority following the Glorious Revolution to conflict between the crown and elites

over financing. Only when the latter posed a credible threat to the former did insti-

tutions – namely, an empowered parliament and independent judiciary – emerge as

a compromise to provide financing alongside protection from expropriation. Hence,

11(Hale, 2015, p. 31) refers to these as “subpatrons,” or “those figures who have clients of theirown but who also are themselves the clients of more powerful patrons.”

36

a literature has emerged that emphasizes tying the hands of the state to limit ex-

propriation and in doing so, creating the foundation for rule of law more broadly

writ. Olson (1993) built on this finding to extrapolate a sweeping connection be-

tween regime type and rule of law and/or property rights protection, a finding that

Rodrik (2000) later echoed. Indeed, Djankov et al. (2003) see the fundamental ten-

sion in securing property rights as a conflict between the “twin goals of controlling

disorder and dictatorship.”

However, Dollar & Kraay (2000) find little relationship among regime type and

rule of law among developing countries. This may be due in large part to the fact that,

as Markus (2015) notes, threats to property rights originate from one of three di�erent

sources, of which the dictator or central government is only one. He characterizes the

others as the result of state weakness: either an inability to enforce law against private

threats, or to control state agents. Indeed, he finds that local-level state o�cials

constitute the greatest threat to firms’ property rights in Russia and Ukraine.

State agents that threaten property rights do not necessarily stem from state

weakness, however. Allowing local o�cials to profit from predation and control over

the allocation of property rights is a not-uncommon strategy among authoritarian

regimes. In China, for example, Rithmire (2017) finds that the central regime inten-

tionally granted local governments greater latitude over land rights to manage and

smooth out business cycles; while this was a move toward macroeconomic regulation,

it also meant that land seizure became a major source of rents for municipal o�cials

(Hsing, 2010). Today, land sales and rentals comprise one of the largest sources of

income for Chinese municipalities (Rithmire, 2017). A similar confluence between

formal authority over property rights and rent-seeking by local o�cials has also been

37

documented in Africa (Onoma, 2012; Boone, 2014). This can be a highly e�ective

means for autocrats who – even in oil-rich regimes – not only do not have unlimited re-

sources with which to reward their clients, but who also wish to retain as much wealth

as possible for themselves and their immediate supporters (i.e., the inner circle). By

allowing those farther down in the regime hierarchy to use their formal authority for

self-enrichment, they retain an important mechanism for enforcing personal loyalty

to the dictator, at minimal damage to the central budget. Moreover, the cost of this

‘reward’ is e�ectively shifted to the relatively powerless masses of citizens who are

targeted by local o�cials. While those masses can become a powerful threat if they

overcome the challenges of collective action, they generally pose a less immediate or

severe threat than elite defection.

At the same time, it is not in the dictator’s interest to allow local o�cials to engage

in too much predation; doing so threatens the central regime’s control, undermines its

legitimacy among the population, and again, may spark mass protests or resistance

from a�ected citizens. In addition, corruption which involves siphoning resources

from central budget priorities challenges the autocrat’s control. Thus, authoritarian

rulers must balance conflicting issues. On one hand, it benefits them to overlook

some corruption – as long as it’s the ‘right’ kind. Allowing lower-level o�cials to use

their positions for personal profit links their loyalty to material benefits, and helps

maintain the dictator’s clientelist network down to the local level at minimal cost. On

the other hand, dictators need to control the type and extent of the corruption that

their subpatrons engage in: they need to prevent them from becoming so predatory

that they run the danger of sparking mass protests, and from stealing state resources

destined for other purposes (such as pensions or public works projects designed to

38

secure popular support). After all, coercion is expensive (Magaloni, 2006), and the

repeated need to rely on the heavy use of force to put down rebellions can cause out-

size damage to the regime’s overall legitimacy in the country, thereby raising these

costs even further. Again, this implies that dictators need to tools to monitor and

control lower-level o�cials. But what are those tools? In the next section, I outline

existing research on the institutional mechanisms that dictators use to address these

governance challenges, and where it falls short.

2.2.2 Institutions Matter?

Institutions are key to understanding governance in any regime; around this point,

comparative politics has developed an unusual degree of consensus (Helmke & Levit-

sky, 2006). “Institutions reduce uncertainty by providing a structure to everyday life”

(North, 1990, p.3), as well as the crucial underpinnings needed for a well-functioning

market economy (Rodrik, 2000, p.33). Formal institutions remain the focus of most

comparative research, but because authoritarian regimes tend to be characterized by

weak rule of law, their study had long been neglected in work on autocracies. How

these institutions matter in authoritarian regimes – especially vis-a-vis informal in-

stitutions, like clientelism – therefore remains subject to great debate. Here, I follow

(North, 1990) in defining institutions as “the rules of the game in a society, or more

formally...the humanly devised constraints that shape human interaction”; further,

they do so “in part by helping them to form expectations of what other people will

do” (Lin & Nugent, 1995, p.2306-2307). These rules may be informal or formal.

Whereas formal institutions are codified and guaranteed by state institutions, their

informal counterparts are “socially shared rules, usually unwritten, that are created,

39

communicated, and enforced outside of o�cially sanctioned channels” (Helmke &

Levitsky, 2004, 727).

In authoritarian regimes, informal institutions are usually a “central pillar” (Lauth,

2015). At the same time, however, our understanding of informal institutions’ role re-

mains limited. For example, while there exists near-universal acknowledgement that

clientelism underpins authoritarian rule to an extensive degree, studies that directly

investigate how these informal networks shape governance in dictatorships remain

few and far between. Helmke and Levitsky’s (2006) seminal volume on informal

institutions, for example, restricts itself to democratic contexts; so too does the col-

lection from Kitschelt & Wilkinson (2007). No comparable edited volume or body of

literature exists dealing with informal institutions in authoritarian regimes.

Instead, we are left in an analytical no-man’s land. “Most definitions of author-

itarian rule refer explicitly to informal rules”; frustratingly, however, “we cannot

generalize from these definitions, as we still know very little about the role of infor-

mal institutions in dictatorships” (Lauth, 2015, p.63). As North (1990, p.3) pointedly

notes, “it is much easier to describe and be precise about the formal rules that soci-

eties devise than to describe and be precise about the informal ways by which human

beings have structured human interaction.” Hale’s (2015, p.34) recent contribution

is an important step in addressing this lacuna. He argues that in regimes where

clientelism – or what he terms “patronalism” – is pervasive, shared expectations si-

multaneously help the patron secure the loyalty of clients and ensure that clients

loyally carry out the patron’s will. He points to a “crucial problem of coordination”

that organization and resources help solve by influencing those expectations; it is here

40

that formal institutions like constitutions and elections play a crucial role, because

they serve as focal points that shift expectations (Ibid).

In this sense, his argument resembles those which characterize key elections as

“tipping points” that enable opposition to overcome the collective action problem

they face when attempting to organize in authoritarian regimes (Schedler, 2009). In-

deed, perhaps the most fruitful (but limited) research on insitutions in authoritarian

regimes examines the interplay between informal and formal institutions. For ex-

ample, Way (2002, p.594) finds that in Ukraine, “because of particular interactions

between formal institutions and informal processes, reform intended to increase pre-

dictability and accountability of the fiscal system initially had the opposite e�ect.”

In the African context, Lund & Boone (2013) examine the complex interplay among

property, citizenship, and political institutions surrounding land ownership; these are

“mutually constituitive processes” involving “competing principles of tenure, such as

ancestral or cultural entitlement, actual use, market acquisition or government allo-

cation” that encompass formal and informal institutions. These di�ering institutions

interact to produce authority over both people and resources. In other words, they

are crucial to understanding both state formation and governance.

Similarly, the role that elections – especially local elections – play in authoritarian

regimes is shaped by their underlying reliance on informal practices of clientelism.

Lust (2009, p.122) finds that in autocracies in the Middle East and North Africa

(MENA), “Far from putting pressure on the regime to democratize, elections can

provide a mechanism for the distribution of patronage that reduces demands for

changes.” Legislative elections are “best thought of as competitions over access to

state resources” (Ibid, p.124), with members of parliament serving as intermediaries

41

between citizens and the regime. Similarly, Blaydes (2010) finds that the Mubarak

regime in Egypt used multiparty parliamentary elections to ease distributional conflict

over patronage resources. Political parties also help deal with this conflict by shifting

both mass and elite incentives in ways favorable to the regime. Gandhi (2008, p.36)

notes that even single parties “serve to mobilize and supervise the masses”; in partic-

ular, they provide the regime with information about the popularity and compliance

of local o�cials (Malesky & Schuler, 2011). Parties are also vehicles for rewarding

both mass and elite regime supporters (Gandhi, 2008; Gandhi & Lust-Okar, 2009),

and in doing so, facilitate cooperation and reduce factionalism among elites (Maga-

loni, 2006; Brownlee, 2007). Svolik (2012, p.163) argues that parties contribute to

regime stability by “e�ectively exploit[ing] their members’ opportunism and career

aspirations to create a stake in the perpetuation of the regime”; this creates “sunk

political investment” that discourages “the most productive and ideologically agree-

able segments of the population” from abandoning the regime and, in doing so, helps

dictatorships with parties endure longer.

Elswhere in the literature, however, formal institutions were long thought to be in-

consequential in authoritarian regimes. While the work outlined above has gone far in

dismantling the latter assumption, it is far from obvious that we have exhaustively cat-

alogued the “autocrat’s toolbox” for maintaining the equilibrium expectations which

underpin authoritarian rule. In particular, there has been comparatively little inves-

tigation of the role that formal legal institutions and organizations – namely, law and

courts – play in authoritarian governance, despite their ubiquity in non-democracies.

Work by The struggle (n.d.) has demonstrated that frequently, autocrats “rule by

law,” which importantly highlights the (oft-ignored) fact that because rulers create

42

laws, law-bound governance does not necessarily equate to an even, neutral playing

field for everyone. This is in contrast to approaches that stress rule of law. How-

ever, most studies of authoritarian courts focus on the use of criminal law and courts

to suppress opposition or on exceptional cases such as China and Singapore, where

autocracies have sought to improve rule of law to attract foreign investment (Wang,

2015; Silverstein, 2008). In personalist dictatorships where rule of law remains poor

and corruption rampant, these formal institutions – if discussed at all – are assigned

little significance.

Consequently, as highlighted in the previous section, the literature has a key

blind spot when it comes to authoritarian governance: it fails to adequately address

dictators’ need to monitor and control their clients, or the negative externalities

associated with relying on weak institutionalization. In regimes where leaders have

emphasized removing as many constraints on their rule as possible, there tends to be

a corresponding high level of corruption and lack of trust in government or courts

(Transparency International, 2014). This has generated the assumption that in such

places, including Kazakhstan, neither the regime nor citizens should regularly engage

in formal legal institutions or organizations (specifically, law and courts) – especially

to settle disputes with one another. After all, doing so is costly for the regime and

for citizens, presumably pointless. Why, then, do the regime and citizens engage one

another through civil law and courts?

Answering this question requires addressing two ‘elephants in the room’ that

are often overlooked or under-examined in studies of authoritarianism. First, even

vertically-organized, highly personalist authoritarian regimes like Kazakhstan are not

monolothic, but comprised of multiple actors with often competing preferences and

43

incentives. Thus, we need to pay greater attention to how the state is structured,

and how its formal organization and informal channels of accountability overlap or

are at odds. This also brings us to the second ‘elephant’: formal institutions cannot

be studied in isolation from their informal counterparts. Even in places where for-

mal institutions blatantly matter and rule of law is strong, we cannot overlook the

possibility that they work more e�ectively because they are supported by informal

counterparts (Gandhi & Ruiz-Rufino, 2015, p.8). While in dictatorships informal

practices often appear to subsume law, there are good reasons to suspect that formal

legal institutions and organizations still matter. In this dissertation, I use the term

formal legal institutions and organizations (FLIO) to refer to state-created, o�cial

legislation and the organizations charged with creating, interpreting, and enforcing

it. I focus on two key FLIO in this dissertation: the first, law, includes the state’s

constitution, codexes, legal statutes, executive orders, and any other written rule by

the state which courts are expected to draw on in making a ruling; the second, civil

courts, includes judges and associated court sta�.

Two factors point to the need to focus greater attention on FLIO. First, some

authoritarian regimes invest considerably in law and courts, while others neglect

them. Investment in this context refers to expending scarce resources on creating,

maintaining, or utilizing formal legal institutions. Such resources can include time,

money, and personal, physical, or human capital. For example, Azerbaijan and Russia

have relatively powerful Constitutional Courts, while Kazakhstan transformed that

court into a closely-controlled Constitutional Council that does not allow for citizen

appeals. Besides the costs involved in creating and maintaining these institutions and

organization, utilizing them is not costless. It requires a choice to expend extensive

44

time and resources on that particular forum for conflict resolution. As rational actors,

we would not expect either dictators or citizens to invest in FLIO if they did not gain

some utility from doing so; in particular, as North (1990, p.48) notes, if “rules are

derived from self-interest,” then the question remains what interest these rules and

organizations serve.

Second, if FLIO were merely ornamental, we should see a dearth of citizen-state

disputes appearing in court – at least in civil or economic courts, where individuals

have a choice in whether or not to pursue litigation (criminal courts are another mat-

ter). After all, if courts are expected to favor the state, why go at all? Presumably,

you don’t; litigation is costly, and it makes little sense to bear those costs without

an expectation that victory is possible. We should expect this issue to be especially

acute in personalistic authoritarian regimes; dependence on informal relationships

means that law becomes, as the name suggests, especially ‘personalized’ in its appli-

cation (again, with state o�cials reliably coming out ahead). Nor is there an obvious

reason for the state to regularly pursue litigation against individuals or firms in an

authoritarian setting. Doing so in a few, high-profile cases that attract international

scrutiny may provide some (albeit usually unconvincing) ‘cover,’ but using courts

broadly to sue ordinary citizens would be costly and provide little obvious benefit.

Yet, this is exactly what we see in some regimes – including some, like Kazakhstan,

which exhibit the informality and weak rule of law that we would expect predicts an

absence of citizen-state litigation. Why, in authoritarian regimes like these, do we see

citizens and the state investing in civil and economic courts – especially in disputes

with one another?

45

2.3 Theory

I argue that we see citizen-state disputes in court because law and courts help

dictators address the challenges of monitoring and managing their agents – in partic-

ular, the numerous lower-level “sub-patrons.” FLIOS serve two primary purposes for

the regime: first, they communicate and monitor adherence to limits on local o�cials’

rent-seeking behavior, and second, they help di�use and control citizens’ discontent

with those o�cials. Both functions, however, require citizens to regularly turn to

courts in conflicts with the state. Thus, the regime must o�er some incentive for cit-

izens to participate; hence, they allow courts to provide marginally better outcomes

for some and enforce a legal minimum, or floor, for the rest. Citizens respond to a

combination of this impetus, conflicting information encoded in laws, and need when

they seek resolution through courts.

In this section, I begin by specifying my underlying assumptions regarding each

group of actors. Then, I define some of the key concepts used repeatedly throughout

the dissertation, before turning to discuss how and why law, courts, and citizens in

formal legal institutions and organizations play a key role in authoritarian governance.

I use terms relevant to the Kazakhstani case for clarity and cohesion throughout.

Conditions & Assumptions

Throughout the dissertation, I assume that all the actors involved are rational.

Specifically, they have well-defined preferences regarding an outcome, and take con-

crete steps to reach their preferred outcome (Cook & Levi, 2008). These preferences

are shaped by the institutional context in which each actor operates: while for the dic-

tator, formal institutions are malleable, for others (especially lower-level clients who

46

are not members of the ruling coalition) they constitute an exogenous constraint.

All actors, however, are embedded in the same social structure. This environment is

characterized by widespread informality, and the informal institution of clientelism in

particular. Clientelism in autocracies stresses the unequal balance of power between

patrons and clients; this is in contrast to much subsequent work related to democ-

racies, which “does not typically include an explicit reference to hierarchy” (Hicken,

2011, p.292). Retaining this emphasis is important, because in authoritarian con-

texts, clientelist relationships also involve a high degree of coercion and inequality.

This creates an overall environment with the shared expectation that personal re-

lationships determine access to state resources. These relationships are in turn the

“social glue” that unites individual rational actors in society (Shepsle, 1989, p.134),

including those who populate my theory.

In other words, the social environment in autocracies constitutes what (North et

al., 2009, p.2) label the “natural state” or “limited-access” orders: “Personal rela-

tionships, who one is and who one knows, form the basis for social interaction.” In

addition, the political system limits violence by “using the political system to cre-

ate and allocate rents arising from arrangements such as government contracts, land

rights, monopolies on business activities, and entry to restricted job markets.” In the

Kazakhstani case, this access tends to be based on membership in familial, regionally-,

or potentially, clan-based networks (Collins, 2006; Schatz, 2004; Luong, 2004). How-

ever, that does not limit the arguments presented here to countries with similar types

of identities; the scope is instead limited to those with similarly organized states.

Specifically, they apply to cases where centralized, top-down patron-client networks

47

determine access to political and economic power – regardless of the particular identi-

ties on which those networks depend. Because this describes much of the developing

world (and not just Kazakhstan or Central Asia), the arguments presented here apply

to a broad range of cases. Actors’ preferences are influenced by their relative position

in these informal hierarchies, and formal appointments can be taken as an indication

of an individual’s position in governing patron-client networks.

My theory centers on a set of actors common to these limited-access states:

the dictator and his inner circle; local executive o�cials; judges; and of course,

ordinary citizens. All regimes, even highly centralized ones like Kazakhstan, have

sub-national political-administrative divisions headed by executives who implement

centrally-formulated policy in each region. Often, these regions are further subdivided

into local (district) divisions. While a few authoritarian regimes allow elections at the

regional or sub-regional level, these appear to be the exception rather than the rule.12

I focus on district executives, because while regional executives in Kazakhstan are

relatively few in number and appointed directly by the President, their subordinates

are far more numerous and farther removed from central supervision. These local

o�cials also constitute the “face” of the regime that most citizens encounter in their

daily lives. Consequently, their relationship with citizens is crucial for regime control

and support. Every regime also has a judicial system, and courts’ structure tends to

mirror the administrative divisions in a polity, with district, regional (appeals), and

central (Supreme) courts. Where these judges are appointed and paid by the central

regime and not local executives, they are more likely to be embedded in networks dis-

tinct from local executives; rather than operating as clients in sub-national patronage

12Notable examples include some Russian regions (Reuter et al., 2016) and China (Oi & Rozelle,2000; Manion, 1996).

48

networks, they depend directly on the executive, and are drawn from throughout the

country. Finally, any regime is populated primarily by ‘ordinary’ individuals. I use

this term to refer to those who are not members of the ‘elite’; they are not prominent

in national, regional, or local patron-client networks (though they may have vary-

ing degrees of informal connections to such individuals). I describe my assumptions

regarding each of these actors in the paragraphs that follow.

The Dictator. I refer to the dictator interchangeably as the executive, autocrat,

ruler, and central regime. The latter implies a larger group than one, but is limited to

the dictator and the small number of high-level elites in his inner circle who have direct

influence on policy-making and other executive decisions by the central government.

In short, it refers to what Svolik (2012) terms the “ruling coalition.” In the arguments

that follow, I assume that the ruling coalition’s driving preference is identical to the

dictator’s: maintenance of central elites’ control. This speaks to the “problem of

authoritarian control” over territory, resources, and the population; central interests

are juxtaposed against those of less-powerful regional and local agents, as well as

ordinary citizens. While infighting may occur among these central elites (and even

result in the dictator’s replacement), those included in this group are assumed to

have a shared interest in continued centralization of control at the ‘apex’ of the

power vertical. Thus, the dictator and his “inner circle” are, for the purposes of this

dissertation, functionally equivalent.

For the central regime to maintain its grip on power, it must not only ensure

it retains its control over local agents, but also over how state financial resources

are dispersed. These resources allow it to (a) feed its vast patronage network and

(b) provide citizens with the minimal public goods needed to uphold its legitimacy.

49

In Kazakhstan, regional and local budgetary resources are primarily controlled by

the capital; tax revenue flows upward, into central state co�ers, and these resources

are then re-dispersed to the regions (who in turn set local budgets). The state’s

primary sources of revenue – oil and other natural resource exports – are deposited

in to a centrally-controlled sovereign wealth fund (Azhgaliyeva, 2014). While this

keeps each region dependent on the center, it also reduces incentives for regional and

local executives to invest in their locales, which in turn increases their incentives to

engage in “siphoning” o� of centrally-provided funds for local public works projects.

Consequently, public procurement is one of the most corrupt sectors in Kazakhstan

(Kuatova, 2013), and President Nazarbayev has repeatedly lambasted this type of

corruption (Adilova, March 2017). Thus, I make the corresponding assumption that

the dictator prefers to reduce or eliminate corruption that involves theft of state

resources.

At the same time, I assume that the central regime cares little about corruption

that favors those local elites at the expense of ordinary citizens – to a point. For

example, it matters little to the dictator if local elites provide preferential treatment

to family members when issuing building permits (or if a bribe is required), as long

as they do not interfere with projects designated by the central regime. However, if

the process of obtaining those permits becomes so di�cult that it begins to generate

organized resistance or protests from local citizens, it begins to to cut into the central

regime’s interests. The central regime must maintain its authority throughout the

territory of the state. This involves, whenever possible, preventing protests, riots, or

other outbreaks of social unrest that threaten its actual or perceived control. Because

much of what sustains authoritarian rule is the shared expectation that other clients

50

– and citizens – will remain loyal (Hale, 2015) and that the regime is inherently

stable, allowing collective action of this type contradicts the dictator’s interests. If the

dictator must regularly employ coercion to suppress protests or other uprisings, it risks

shifting expectations that the current equilibrium of power will remain unchanged.

Thus, the central regime strives to keep expressions of discontent to a minimum.

Local O�cials. These are executive o�cials at the local level; in Kazakhstan,

they are known as akims and head cities or districts known as raionui, which are

roughly equivalent to counties in the United States. The administration of the akim

is the akimat. I refer to akims interchangeably as local o�cials, local executives, and

state o�cials. While clearly this is an oversimplification – there are other local or

state o�cials – I focus on local executives because the remainder of local government,

from police to health care, operates under their supervision. Local executives in

Kazakhstan are appointed by regional executives, who are themselves appointed by

the President. Thus, they are “subpatrons” two steps removed from the dictator,

and are directly accountable not to him, but to regional executives (also known as

akims). I do not focus on regional executives in this dissertation because they do

not have power of eminent domain and thus, are not implicated in the citizen-state

disputes that are my focus. Nonetheless, I assume they have the same preferences as

local executives, and consequently, I expect that my theory also holds with respect

to them.

I assume that these o�cials’ primary goals are twofold: first, to increase their

personal wealth; and second, to increase their political power. The latter entails re-

maining in good standing with the dictator and with their direct patron (the regional

executive), but it can conflict with the objective of increasing their personal wealth.

51

Many of the “easiest” opportunities for rents involve appropriating funds that have

been allocated from the central budget for public goods, such as infrastructure devel-

opment. This type of corruption involves low e�ort and high financial return: local

executives have direct control over their administration and budgets, and the other

individuals populating positions in their administration are their clients. However,

siphoning these resources for personal ends conflicts with the dictator’s preferences,

and risks their position within the power vertical. In contrast, using their authority

in ways that pass the costs to constituents (such as land seizures) does not contradict

the dictator’s wishes, as long as doing so does not translate into social instability.

Consequently, this variety of corruption will not generate backlash from the state of-

ficial’s patrons. Thus, I assume that the type of corruption that state o�cials engage

in to increase their personal wealth is a function of the cost of the e�ort involved, the

potential payo�, and the risk that they will be caught and subsequently sanctioned.

Because the risk associated with the latter is much lower when rent-seeking activities

target constituents rather than the central budget, most local executives will prefer to

avoid stealing from their own budgets unless the potential payo� is su�ciently large

to compensate for the heightened risk. I discuss one such case in the chapter on Law,

but overall, I focus on expropriation from citizens.

Judges. I assume that judges’ preferences are similar to those of local executives:

they want to increase their personal wealth, and to further their careers within the

existing regime. As a category, judges are all direct clients of the dictator: in Kaza-

khstan, judges from the district (raion) courts to the Supreme Court are appointed

by the president and serve at his pleasure. That said, ‘capture’ by the local execu-

tive is possible; because disputes that are likely to implicate a local akim are heard

52

first in the district court, it may be in the local executive’s interest to try to co-opt

the judges there by, for instance, sharing any proceeds from rent-seeking schemes.

That said, judges ultimately remain accountable to the dictator, and combination of

appeals and a court chairperson in supervisory role serves as a check on their work

(Konstitutsionnui Zakon “O sudebnoi sisteme i statuse sudei Respubliki Kazakhstan” ,

2015); as a result, judges are subject to a much higher degree of monitoring than are

local executives. They are therefore hesitant to stray far from either top-down policy

or existing statutes.

This is especially true in cases that involve the state; because state o�cials do not

have to pay to file an appeal, those cases are more likely to be appealed (and thus

subject to monitoring by higher courts). I therefore assume that most opportunities

for judges to generate wealth through corruption (i.e., by accepting bribes) involve

disputes between private citizens. By most accounts, courts in Kazakhstan are highly

corrupt: according to a 2014 survey of Kazakhstani households by Transparency

International, nearly two-thirds of respondents characterized courts as “corrupt” or

“very corrupt,” and of those who had participated in litigation in the past year,

about a third reported paying a bribe (Transparency International, 2014). Due to

the likelihood of response bias, the actual number is likely even higher. Judges often

use their position to solicit bribes, and the risk of doing so in disputes between private

citizens or firms is lower than in those between citizens and the state. In the former,

the regime’s interests are not at stake and one of the parties must pay a fee in order

to appeal their case, which decreases the likelihood that the case will be subject to

oversight. Therefore, I assume that while bribery is a pervasive issue in cases involving

private parties, it is relatively rare in citizen-state cases. Judges wish to increase their

53

personal wealth, but their ability to do so depends on retaining their position; this

means treading especially carefully in cases involving the state. In most citizen-state

cases, that risk will simply be too high.

Citizens. I assume that citizens are not directly part of the patronage networks

that link local executives and judges to the dictator, though they may have indirect

ties (such as through family members). Their preferences are similarly self-interested,

but unrelated to the pursuit of political or career goals: they seek the best material

outcome in a dispute with state o�cials, given existing institutional constraints. In

other words, they are not driven primarily by any expressive motivation, although

this may be a secondary reason for pursuing litigation. For most, going to court is

too costly a strategy, both in terms of time and resources (such as filing, expert, or

legal fees), to pursue for an abstract, non-material goal – especially when the conflict

involves a situtation that directly and negatively impacts their and their family’s

standard of living. In addition, most citizen prefer to avoid the much higher costs of

outright resistance to the regime that such an approach would require. Instead, they

focus their appeals on their material self-interest. They seek compensation for their

property within the confines of existing legislation. Outrage over violation of what

they consider fundamental (i.e., constitutional) rights may exist, but the possibility

of a material award drives their participation.

A final condition related to local executives, judges, and citizens concerns institu-

tional constraints. Unlike the central regime, these actors must take formal institu-

tions as exogenous and fixed. Particularly at the local (as opposed to regional) level,

they are distant from the executive and do not have the ability to influence law or

54

policy; they can only react to it. In the next section, I outline the role that formal

institutions – specifically, law – play in dictatorships.

2.3.1 Law

Because courts interpret and enforce the law, the two are innately linked. Thus,

I begin my theory by outlining the function of law in authoritarian contexts. In

doing so, I seek to expand rather than replace existing arguments regarding ‘rule

by law,’ which tend to concentrate on law as a tool for curbing opposition (Pereira,

2008, 2005; The struggle, n.d.; Rajah, 2012).13 While such laws exist, they comprise

a miniscule proportion of the entire body of law, the majority of which addresses

mundane topics, like divorce, that have little to no bearing on the central regime’s

interests. However, some parts of law fall into a ‘grey’ zone when it comes to the use

of law to facilitate authoritarian control. These address politically-sensitive issues

(either because they a�ect the interests of political and economic elites, or due to

their impact on public opinion), but were not adopted or used specifically to clamp

down on organized political dissent. Instead, they concern potentially politically-

sensitive economic issues, such as property rights, contracts, labor, and housing.

Most such disputes are mundane, and the regime has little to no interest in how they

are settled. However, where the state’s or elites’ interests are at stake (or when an

issue has widespread political salience, such as land rights), they take on a strong

political undertone.

It is with respect to this ‘grey’ area of law that I make two arguments. First,

law communicates: in authoritarian contexts, it is a means by which the dictator

13Opposition activities here refers to organized resistance to the regime, with the ultimate goal ofregime change.

55

broadcasts information about his preferences. Thus, as the quintessential “parch-

ment institution,” law plays an important role in the “coordination game” that “helps

to establish the sort of mutual expectations about behavior that are critical to de-

termining the equilibrium will apply” (Carey, 2000). For dictators, law does not

constitute an e�ective constraint, but rather a means of communicating acceptable

bounds on behavior for those outside the ruling coalition. Law therefore matters

because it shapes expectations about the range of actions that the central regime

will tolerate. Agency problems mean that “problems of hidden information or action

[still] frequently emerge” (Gandhi & Ruiz-Rufino, 2015, p.5); however, disregarding

law means ignoring the dictator’s recorded preferences, which is always a dangerous

proposition – especially for lower- and mid-level state o�cials, who depend on remain-

ing in the autocrat’s good standing for their livelihoods and continued advancement.

Thus, law-as-communication does not preclude behavior outside these bounds, but

rather heightens the risk associated with it by delineating what can be classified as

“corruption.”

Second, I argue that where state interests or those of the politically-well-connected

are frequently at stake, it behooves the regime to embed flexibility within the law.

By legal ambiguity, I refer to instances where a statute contradicts or is otherwise

in conflict with other statutes, or higher-level law (codexes, constitution). This ef-

fectively creates a ‘menu’ of options within the body of law, which combines with

personal ties in dynamic ways to influence rulings in each case. In countries that

employ a civil law system, regime control over a separate Constitutional Court (or,

in the case of Kazakhstan, Constitutional Council) facilitates this practice because

judges lack the ability to interpret law. Consequently, legally problematic statutes

56

can remain a source for rulings. Those with stronger informal connections can expect

judges to draw on more favorable statutes or points, while those without such influ-

ence are likely to receive the least-favorable option. However, all decisions remain

within the overall framework set by the law. In this way, the regime can confirm its

commitment to the law as an abstract, impartial ideal, even while accommodating

the personal relationships it depends on to govern. In other words, legal logic com-

bines with informal logic to shape law’s interpretation and thus, policy in practice.

Again, this informal influence should not be conflated with the idea that law does

not matter at all. Only for those at the highest echelons of power is law something

that can (perhaps) be treated with disregard; for most state o�cials, it presents a set

of guidelines, within which they must justify their actions. If they fail to do so, they

are subject to monitoring and sanctions by the courts. In this way, law ‘bounds’ the

lower tiers of the state.

Understanding why and how it does so requires re-examining implicit biases in

how we approach the comparative study of law. ‘Law’ is an encompassing term that

refers broadly to the “rules of conduct approved and enforced by the government of

and over a certain territory” (Law, 2017). It thus echoes Helmke & Levitsky (2004)’s

characterization of formal institutions: “Formal institutions are openly codified, in the

sense that they are established and communicated through channels that are widely

accepted as o�cial.” E�ectively, an emphasis on formal institutions means discussing

law, broadly writ. In other words, law refers to a ‘system’ of formal institutions devel-

oped and communicated by the state to regulate specific economic, social, or political

interactions. Most dominant conceptualizations reference democratic contexts, where

law is created by popularly-elected legislatures and thus has a clearer connection to

57

citizens’ preferences. In authoritarian regimes, law translates roughly into a system

developed by the central regime. While the autocrat and his inner circle may consider

public opinion, neither their selection nor continued tenure in o�ce directly require

it. This fact is often obscured or forgotten in discussions of law, especially those that

treat the creation of “rule of law” as a problem of e�ective enforcement of existing

statutes (Kleinfeld, 2006, p.32). In doing so, they take the implicit stance that law

embodies impartial norms. However, law is a formal institution, and consequently, is

“a product of the e�orts of some to constrain the actions of others” (Knight, 1992,

p.19). In authoritarian contexts, that ‘some’ refers to the autocrat; law thus reflects

his preferences.

These preferences in turn reflect the dictator’s driving determination to maintain

control. For this reason, any expectations that law reflect some inherent goal of

‘fairness’ are misplaced. Instead, it addresses potentially destabilizing social conflicts

in alignment with the ruler’s preferences regarding stability, satisfying key elites,

and retaining control over revenue collection and distribution. In an authoritarian

regime, it is hardly a secret that the dictator controls policy. This makes law e�ective

means for communicating the autocrat’s preferences regarding specific issues, because

it transmits them widely and, in doing so, helps shape expectations about what

constitutes permitted behavior – and therefore, about how others will act, too.

This is not to dispute that laws never constitute “window-dressing.” Those re-

garding some human rights issues may indeed fall in this category. However, most

are not; it makes little sense to invest significant resources in complex, technically-

detailed legislation on so many issues for a mere show. Moreover, if law did not

58

matter at all, it is puzzling that sometimes changes to law generate substantial re-

sistance. For example, proposed changes to Kazakhstan’s Land Code that would

have permitted foreigners to lease agricultural land for longer periods generated the

country’s largest mass protests since independence, and led President Nazarbayev to

backpedal on the proposed legislation (Kazakhstan: Government Accepts Defeat Over

Land Sale Plans, 2016). This resistance is logical in light of an explanation of law

as communication, but not if it is a meaningless gesture. As Carey (2000, p.754)

highlights, it is “counterintuitive that the structure of institutions should be the sub-

ject of such intense conflict if institutions...are without consequence of their own.” In

short, its inability to constrain the dictator does not make law meaningless; it still

serves as a useful tool for governance because it communicates preferences. In doing

so, it shapes expectations and provides guidelines and justification for a particular

range of behaviors by state o�cials. I thus echo (Carey, 2000, p.735) in arguing that

“parchment can contribute to the generation of shared mutual expectations among

political actors.”

In the next section, I build on this discussion of law to outline the role that the

formal legal organizations which determine compliance with the law – courts – serve

for the central regime.

2.3.2 Courts & the Regime

Social science literature often falls prey to the assumption that the autocrat em-

bodies “the state” or “the regime.” As North, Wallis, and Weingast (2009, p.17)

point out, “By overlooking the reality that all states are organizations, this approach

misses how the internal dynamics of relationships among elites within the dominant

59

coalition a�ect how states interact with the larger society.” I echo their emphasis

on examining the state as an organization, but argue that we also need to examine

the agency problems inherent in its governance (Gandhi & Ruiz-Rufino, 2015). In

particular, local state o�cials are agents that help the dictator, as principal, extend

control throughout the physical territory of the state; they are also the arm of the

state that most citizens encounter in their daily lives. We therefore need to examine

how autocrats manage their relationship with these agents, and their relationship

with ordinary citizens. The crux of my dissertation is that, far from being mere

ornamentation, another part of the state organization – the judicial system – medi-

ates these state-society relations in authoritarian regimes. That the regime relies on

courts to address conflicts between citizens and state o�cials suggests that they play

an important role. After all, as Knight (1992, p.43) argues, “Rational actors will not

create institutions if the costs of doing so exceed the benefits they subsequently pro-

vide.” However, this begs the question of what benefits courts provide. Why does the

central regime direct local o�cials to settle highly sensitive citizen-state land disputes

in court? What advantage does litigation have over other strategies, and what are

the implications for our understanding of authoritarian rule?

I argue that courts serve two functions for the dictator. First, they facilitate

monitoring of local o�cials, as well as identification of potentially problematic issues

or areas. Thanks to a combination of institutional features – judicial dependence

on the executive, hierarchical organization, and open appeals – judges act as “fire

alarms” (and courts as information-gathering hubs) for the central regime in citizen-

state disputes. Second, courts help disperse the potential for protests in response to

state o�cials’ corrupt, predatory, or otherwise unpopular actions. Actions that create

60

shared grievances, such as collective dispossession of land under eminent domain, can

serve as a catalyst for protests or other forms of collective action; funneling these

grievances through the judicial system without allowing for class action suits14 indi-

vidualizes the dispute and disrupts citizens’ ability to organize collectively. However,

for courts to e�ectively serve either of these functions, they require citizen participa-

tion. This motivates the central regime to have courts enforce minimal rights, and

o�er improved outcomes in some cases. Before turning to address the theoretical

underpinnings of each of these three arguments, however, I briefly outline why courts

serve the executive’s interests.

While judges have preferences distinct from the dictator’s, their rulings reflect

directives from above – especially in conflicts that involve state o�cials. Thus, this

dissertation characterizes courts as reliable and faithful agents of the regime through-

out the discussions that follow. Their compliance with the central regime derives

from the hierarchical structure of the judicial system, which ensures that failure to

adhere to top-down directives carries a high risk of discovery. This risk exists for two

primary reasons: low judicial independence, and the combination of an open appeals

system and courts’ hierarchical organization. In Kazakhstan, as in most authoritarian

regimes, judges lack independent authority. Even at the local (district) level, they

are appointed by and serve at the President’s pleasure.15 While the president may

14As Tukulov et al. (2014) note, “The possibility of bringing representative or collective actionsin Kazakh civil procedure law is extremely narrow. The Consumer Protection Code very lightlymentions that a public prosecutor may bring claims on behalf of unlimited scope of persons ina social sphere. Collective actions could also be brought by consumer protection organisations onbehalf of an unknown number of parties.” However, neither of these allowances applies under eminentdomain.

15Supreme Court justices must be confirmed by the Senate in Kazakhstan, but as is typical inauthoritarian regimes, the legislature is dominated by the President’s party and therefore does notpose an e�ective check on nominations.

61

not individually know or recommend every judge, the power to dismiss any justice

remains his exclusive purview. In addition, judges do not serve for set terms (Konsti-

tutsionnui Zakon “O sudebnoi sisteme i statuse sudei Respubliki Kazakhstan” , 2015);

continued tenure therefore requires remaining in favor with the central regime. More-

over, all court budgets are derived from the central republican budget (Ibid), which

further limits local executives’ ability to influence the courts through provision or

withdrawal of resources. This high level of dependence on the central regime severely

circumscribes judges’ incentives to engage in judicial activism, and helps align their

interests with those of the dictator.

The way that courts are structured further ensures their compliance. Courts are

organized hierarchically, and each higher court is responsible for checking the work

of the next-lower court. In addition, in Kazakhstan, every court has a Chairperson

(predsedatel’) who answers for the actions of all the judges in his or her court. The

Supreme Court issues guides regarding “best practice” to these Chairpersons, and

those who fail to abide by these policies are subject to dismissal (Konstitutsionnui

Zakon “O sudebnoi sisteme i statuse sudei Respubliki Kazakhstan” , 2015, Article 34).

Kazakhstan’s open appeals system further facilitates this vertical accountability: ei-

ther party to a case has the right to appeal the ruling at any stage of the judicial

process. Thus, each district court judge knows that his or her rulings are subject to

review by appeals courts, and so on up to the level of the Supreme Court. Conse-

quently, judges are hesitant to stray far from top-down mandates, and this impetus

is especially strong in cases involving state o�cials. While well-connected or wealthy

individuals may be able to draw on their connections or bribery to induce a favorable

ruling in a disputes with another private party, judges face a substantially higher risk

62

when the opposing party is a state agency or o�cial, because it involves state interests

and a greater likelihood of scrutiny. Unlike private parties, state agencies or o�cials

are not subject to any kind of fee if they wish to appeal cases, and if they disagree

with the verdict are likely to do so; this is especially likely where there exists a law

or directive from above that supports their position. Thus, while judges may seize

opportunities to take bribes or otherwise advance their financial interests in private

disputes, doing so in citizen-state conflicts is extremely risky. Consequently, judges

serve as reliable agents for central regime policy.

For the central regime, this helps make civil courts a useful tool for gathering

crucial, detailed information – in line with my first proposition. Cases that involve

citizens and local o�cials give insight into issues, such as corruption, that are oth-

erwise extremely di�cult for the central regime to detect; moreover, they provide

detailed data on who is involved, where, and how. For example, in eminent domain

cases, local executives are provided with funds for reimbursing citizens for land seized

for public works projects, but in some cases, those o�cials keep the money for them-

selves. Certainly, they are not likely to highlight their or their subordinates’ misuse

of state authority or funds, and because police and other local state o�cials are ap-

pointed by (and hence belong to the same patronage networks as) local executives,

turning to them for redress is unlikely to help. Keeping courts under strict central

control helps the dictator combat this opacity at the local level. Citizens recognize

that law and courts are directly linked to the dictator, and going to court is a means

to appeal local abuses of power within a forum approved and supported by the Pres-

ident. Moreover, civil suits reflect voluntary participation; no security forces arrive

to force citizens to go to court, and indeed, the local o�cials implicated may try to

63

prevent them from attending. Together, these characteristics help ensure that the

information courts provide is ‘good,’ and not a function of simply telling the dictator

whatever he wants to hear. At the same time, going to court is also costly in terms of

time and resources, so citizens are unlikely to do so frivolously; judges further evalu-

ate the extent to which claims against state o�cials are valid. The information that

the dictator ultimately receives is therefore already vetted for accuracy, in a way that

other sources, like petitions directly from citizens, are not. E�ectively, civil courts

act as “fire alarms” that alert the central regime to conflicts between state o�cials

and citizens – conflicts which might otherwise go undetected.

Open appeals also contribute to the quality of the information that the regime

receives. Those individuals who are particularly incensed will be more likely to appeal,

because they will be more willing to bear the costs involved. In addition, all those who

participated in a district court case (as well as representatives of the Procuracy) have

the right to initiate an appeal in any case (Sud, 2017), so local o�cials do not have

the ability to formally block citizens from having a higher court review district courts’

rulings. Appealing all the way to the Supreme Court is a lengthy process, further

increasing the associated costs. Appeals therefore provide a means to evaluate, across

regions, the degree to which an issue or o�cial has generated citizen outrage; few are

willing to shoulder the time and expense otherwise. In addition, the lack of judicial

precedent means that each case is decided individually, with no bearing on other

cases. If citizens are unhappy with a ruling and feel like the initial judge had been

‘captured’ by the local administration, higher courts – which are further removed from

local authorities – provide an opportunity to appeal to judges outside that district

or region. In those cases where state o�cials file the appeal, it again provides a

64

check on the lower courts’ work, and helps ensure that their rulings, especially if

they contradict local o�cials’ preferences, reflect centrally-set policy. In this way,

civil courts identify instances in which citizens were highly aggrieved. In doing so,

they provide the central regime with a measure of which o�cials are more or less

successfully in maintaining control, stability, and support in their districts. If cases

related to a single issue or o�cial begin to pop up throughout a district, region, or

even the whole country, it provides a warning that existing management is ine�ective.

In short, civil courts, like elections, help address dictators’ information problems.

Unlike authoritarian elections, however, courts o�er fine-grained information beyond

a simple “thermometer” of popularity.

In addition, courts serve a dispersion function in some types of disputes. Where

local o�cials’ rent-seeking targets numerous individuals at once, autocrats face the

risk that shared grievances will motivate collective action. Land seizures in partic-

ular often occur in large swaths to pave the way for major developments. However,

this simultaneously injures and angers large groups of people in communities that

tend to be very interconnected, making protests more likely. Seizures by muncipal

o�cials are a common and highly contentious issue that has sparked numerous mass

protests in China; according to Landesa (cited in Cui et al. (2015, p.91)), some 65%

of the 185,000 ‘mass incidents’ that occurred in China in 2010 were linked to seizure

of land. Comparable dynamics exist in Kazakhstan, Azerbaijan, and other countries

undergoing similarly rapid urbanization (Author’s Ethnographic Notes). Though con-

solidated, stable authoritarian regimes are generally quite capable of repressing any

such public outbursts of dissent, relying regularly on outright coercion can be costly

– both practically, and for the regime’s popular support and legitimacy. Funneling

65

these disputes through a lengthy legal process instead helps reduce the likelihood

that shared grievances over issues like land seizure or labor disputes will translate

into collective action. With extremely limited ability to engage in any class action

suit (Tukulov et al., 2014), litigation means that citizens confront the conflict on an

individual basis, and that that their outcomes are both staggered and determined in-

dividually. As cases move through the court system at di�erent times, rates, and with

di�erent degrees of success, people predictably ‘drop out,’ and group coordination –

already di�cult under the best of conditions – becomes far more di�cult.

However, both the monitoring and dispersion functions that courts fulfill require

widespread, voluntary participation. For courts to provide good information, cases

must reflect citizens’ real desire to seek recompense for their treatment at the hands of

local government, and if citizens eschew courts, they also cease to be e�ective means

of dispersing protest potential. Moreover, accurate information and e�ective protest

dispersion require courts to be the ‘clearinghouse’ for central regime attempts to deal

with state-society conflict at the local level. If they are not – for example, if multiple

state organizations handle the same kinds of disputes – then the information the

regime receives will be far noisier. Addressing these issues encompasses two related

challenges: first, citizens must have some motivation to turn to courts; and second,

they must regularly choose courts over other available strategies. The former does not

necessarily mean that citizens need to trust courts; instead, it means that they must

expect that there is an opportunity to benefit from using them which outweighs the

costs of doing so. This motivates the regime to have courts provide improved outcomes

for citizens in some cases, and to enforce minimal rights for most. Otherwise, citizens

would have little reason to ever bother investing the time or resources in going to

66

court at all. Casinos provide a good metaphor for this situation. Most people who

gamble know that the odds are stacked in favor of the house; however, no one goes to

a casino that never has any winners. The casino thus has to pay out occassionally to

continue to attract players, and each player there hopes that they will be the one who

beats the odds and wins big – or at least, that they will come out farther ahead than

they were when they started. By allowing courts to o�er marginal improvements, the

regime creates similar incentives for citizens to participate in litigation.

That said, even in democratic regimes, going to court is not usually citizens’ first

strategy for resolving a dispute; the same holds in authoritarian regimes. For the

central regime to collect information e�ectively, litigation simply needs to be one of

the primary strategies that citizens use. This means that when citizens attempt to

appeal to other government o�cials and agencies, they should be redirected into the

judicial system. Limiting citizens’ choices in this way helps ensure that courts serve

as the primary conduit for information regarding local o�cials’ actions toward their

constituents. In addition, it better bypasses local informal networks; whereas judges

are centrally-appointed, prosecutors, financial police, and other local branches of

central agencies tend to be local and thus, more likely to have interests entangled with

those of the local executive. Law and courts’ close association with the executive also

heightens citizens’ expectations that higher courts will be more sympathetic because

they are further removed from local patronage networks. However, this also ties

their rulings more tightly to the dictator, and can risk undercutting his legitimacy.

Ironically, this reliance on law and courts can therefore run the risk of sparking a

heightened demand for greater legal impartiality and courts that better constrain

local o�cials.

67

2.3.3 Citizens

Citizens’ participation is crucial to sustaining courts’ utility for the autocrat, but

as highlighted in the previous section, that participation must reflect a choice. If it

occurs thanks to coercion, courts will cease to provide useful information. Forced

participation would make it impossible to distinguish between those ringing the ‘fire

alarm’ about corrupt o�cials or their own displeasure, and those who were involved in

litigation because they had to go through the process. That voluntarily participation

necessitates that courts provide benefits for some: otherwise, there is no incentive

to participate. Once again, casinos provide an apt comparison. The odds of payout

may be poor, but any casino that failed to o�er any payout at all would soon be

bereft of clients. Hence, I argue that we citizens going to court against state o�cials

because doing so o�ers a chance at improving their material situation. “Improving” is

a crucial distinction here: only rarely do citizens seek an outright reversal of o�cials’

actions. I argue that a focus on “winning” or “losing” overlooks the range of possible

outcomes available in civil cases. Most citizens do not seek to keep their property

or some other, outright ‘victory.’ As rational actors, their preferences are shaped by

the institutional context in which they are embedded; thus, they acknowledge the

futility of challenging the state outright and adjust their aims accordingly. Instead,

they attempt to mitigate the impact of being targeted by local o�cials by appealing

to central authority through the courts. In eminent domain cases, this means trying

to increase the compensation they receive; they also seek to delay eviction for as long

as possible.

Both these goals stem from the impact that losing land has on most citizens’

socioeconomic well-being. In rapidly-growing urban areas, the price of obtaining new

68

real estate often outstrips the ability of lower- to middle-income residents to pay for

it. Once dispossessed of their residence, the mismatch between their salaries and

real estate prices makes it extremely di�cult for them to obtain the same or similar

housing anew. This has ramifications beyond mere convenience: relocation often

means losing access to existing work, schools, and neighborhood support. Because the

loss of housing has such far-reaching e�ects, it creates a strong incentive to reduce the

degree of that loss as much as possible. Higher compensation can mean the di�erence

between being able to stay in the city, and having to start over in a new location;

similarly, an ongoing court case stalls eviction. It may also increase bargaining power

with local o�cials who face construction deadlines from the developers.

Going to court helps citizens obtain both. In order to attract participation, the

regime must o�er improved outcomes in some cases, and each household hopes that

they will be the ones to come out, if not further ahead, then at least better than

their status quo vis-a-vis the local government. As in any casino, the probability

of winning the jackpot is low, and most gamblers are aware of that; statistically

speaking, the “house advantage represents the price to the player of playing a game,”

and most players pay a price (Hannum, 2017). Yet, those playing the slots also know

that there exists some probability they will come out ahead, and a slim chance of

winning big. This possibility motivates continued gambling, while reaping profits for

the house. Similarly, authoritarian regimes use occasional awards in court to motivate

their use, while reaping the gains of improved monitoring of local o�cials and reduced

protests. Paying out these awards is a relatively cheap way to address these two issues.

Moreover, the fact that courts are backed by the central regime means that those

whose gamble pays o� and receive judicial rulings which are favorable are likely to

69

see those decisions enforced, thus ensuring their strategy is worthwhile. In addition,

for those citizens who found themselves victims of local o�cials who violated even

the legal minimum, courts o�er their best opportunity for redress. Enforcing some

legal limits on state o�cials’ behavior also makes it easier for the central regime to

credibly claim that it supports citizens’ rights.

While the basic reasoning behind citizens’ willingness to go to court is rational

– it o�ers a chance to satisfy their preferences of an improved material outcome –

it is also supported by psychological mechanisms. Psychological research shows that

individuals consistently overestimate their likelihood of winning in games of chance,

and poor information compounds this misestimation (Tversky & Kahneman, 1974).

Both issues are at play in citizen-state civil disputes. Most citizens acknowledge

courts’ pro-state bias, but they lack a clear idea of their real odds. The existence

of high-level legislation that supports individual property rights vis-a-vis the state

increases the ‘noisiness’ of that message (Konstitutsiia Respubliki Kazakhstan, 2011),

and especially among those who strongly support the regime, causes them to overes-

timate the likelihood that they will be successful in court; this in turn makes them

more likely to use courts. Even among citizens who acknowledge that judges tend to

favor state o�cials, the possibility that they will ‘come out ahead’ when they play

the odds can motivate them to try litigation. This is partially a function of the fact

that doing so is (comparatively) low-risk. After exhausting other options, such as

petitions, the only viable alternative to court is protest. As an alternative strategy,

protest could succeed in pressuring local executives to o�er greater concessions, but

carries a high risk of violence, arrest, and imprisonment by security forces. While

some may have di�erent utility functions and be willing to accept those risks, human

70

beings in general tend to be risk averse (Kahneman & Tversky, 1979). Courts o�er

a chance at mitigating loss, with far lower risk than that associated with protest.

At the same time, Kahneman & Tversky (1979) show that individuals weight losses

higher than gains. It thus makes sense that desire to address losses helps motivate

participation in court cases. Moreover, while their case is ongoing, further action by

the state (i.e., eviction and disposession of their home) is delayed – a further way

to somewhat lessen their loss in the short term. Hence, the decision to go to court

corresponds with established psychological findings on probability and risk.

In other words, courts represent the least-worse option that most ordinary citizens

face when embroiled in a conflict with state o�cials. It could be argued that this

does not represent a choice because it is their ‘only’ option, but this would be a false

dichotomy. In civil disputes, even those where a case is filed against them, citizens can

choose not to participate in the case; they can simply walk away. If they expected

zero benefit from going to court, this would be the rational choice given the costs

involved, and indeed, some do exactly that. In addition, because litigation involves

investing significant time, resources, and e�ort (as well as the risk of harassment from

local o�cials), citizens’ participation requires a willingness to bear significant costs –

and risk a greater loss. With fluctuating exchange rates a common occurrence, even

if the settlement they are o�ered remains unchanged, going to court means that the

award they receive may be worth far less by the time they receive it; there is also

the danger that courts might reduce the o�er. The choice citizens make therefore

depends on the loss they face, their risk tolerance, resources, trust in the regime,

and how they estimate their odds; psychological factors such as a desire to express

71

frustration may also influence their choice, but are not driving factors in conflicts over

material resources.

2.4 Conclusion

This dissertation addresses a key question regarding authoritarian governance:

how do dictators manage the costs and consequences of relying on corruption to rule?

Allowing subordinates to use their formal authority over property rights and other

state functions helps ensure their loyalty to the regime, but if those agents take cor-

ruption too far, it creates negative externalities. Namely, it undermines regime’s

legitimacy and creates the potential for destabilizing protests. These externalities are

particularly problematic when associated with rent-seeking activities like widescale

expropriation of land, which impact large numbers of people at once and thus cre-

ate shared grievances that can translate into collective action. Dictators use law

to communicate their preferences regarding local executives’ rent-seeking behavior,

and embed flexibility within the law in areas of jurisprudence where the interests of

the state or key elites are likely to be at stake. Rather than set a single, impartial

standard, written law therefore bounds what constitutes acceptable behavior; within

those limits, law and informal ties to the regime combine in dynamic ways to shape

law’s practice.

For the regime, this means that courts serve as key mediators of state-society

relations – at least with respect to relationships between state o�cials and citizens.

As far more constrained, reliable agents of the central regime, judges help ensure

that o�cials follow the limits communicated by law; courts act as “fire alarms” that

alert the dictator to o�cials who either fail to do so, or who spark so much outrage

72

among citizens that they pose a risk to the regime’s image of stability and control. In

addition, courts provide information about specific issues that generate widespread

citizen discontent. For citizen-state disputes that involve shared grievances, such as

local o�cials’ seizure of entire neighborhoods’ land for development projects, courts

also help dissipate the potential for protest. Without the ability to pursue a class

action suit, litigation ensures that citizens must pursue what would otherwise be a

shared interest contra the state on an individual basis. Because each household’s case

moves at a di�erent speed through the judicial system and each faces the decision

to continue with litigation individually, it becomes far more di�cult for them to

coordinate for protests or other collective action. Thus, courts provide an e�ective

means of dealing with this threat – and one that does not carry the costs, especially

to legitimacy, that are associated with the use of force.

Citizens participate in these civil cases because among the options that exist, going

to court provides the best possibility to mitigate their losses, especially in disputes

over property, where a monetary value can be assigned. While the vast majority of

them do not expect to retain their property or even receive compensation that reflects

its actual worth, they seek to lessen the impact of seizure on their socioeconomic

situation as much as possible. Like players on a casino’s slot machine floor, most

do not expect to win big against the house, but they do hope to come out further

ahead than they were before litigation. For those who did not receive anything at all

when their property was expropriated (contrary to the central regime’s preferences),

courts constitute the best, lowest-risk opportunity for recourse against powerful local

administrations. For its part, the central regime allows judges to provide these kinds

73

of relief because doing so is a relatively low price to pay for the valuable information

and protest dispersion that it receives in return.

In short, in exactly those regimes where we least expect to see it – personalist dic-

tatorships with pervasive corruption – civil courts provide a thin, politically-flexible

variant rule of law. Dictators rely on formal legal institutions and organizations (law

and courts) to address the problems that arise with their reliance on local subpatrons

to govern; courts help mitigate the principal-agent dilemmas inherent to authoritarian

governance. Though this helps stabilize the regime, it may have unintended conse-

quences of its own. The flexibility embedded in law allows the regime to claim that

it upholds a pre-existing legal standard. However, when law is a�orded real weight

at the same time that statutes contrary to the country’s constitution are regularly

enforced, it risks creating greater demand among citizens for adherence to constitu-

tional norms – for a ‘thicker’ rule of law. In addition, citizens are well aware that

the dictator sets the laws. When their appeals to the very constitution he created

are dismissed, it can undercut the regime’s legitimacy and increase their support for

opposition if regime control begans to unravel. While relying on courts in this way

is an e�ective tool for autocrats, it may turn out to be a double-edged sword in the

long run.

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Chapter 3: Law

3.1 Introduction

This chapter addresses an important precursor for understanding courts’ role in

authoritarian governance: law. After all, courts decide legal disputes; thus, we need to

comprehend how they (and the regime more broadly) view law. In other words, what

meaning does law compart in an authoritarian regime like Kazakhstan? How does

it shape the behavior of judges, state o�cials, and citizens? Without tackling this

issue, it is impossible to develop a coherent understanding of citizen-state conflicts, or

courts’ role in managing them. Even if law does not have any substantive impact on

behavior, that discovery opens the door to ask what informal rules do. Indeed, that is

often exactly the assumption made regarding authoritarian regimes, and personalist

dictatorships in particular: dictators develop laws that look good on paper, and then

utterly ignore them. Law is thus rendered mere decoration; it fails to constrain the

state, and doesn’t influence o�cials’ behavior.

There are good reasons to expect that this “no meaning” interpretation applies to

citizens’ property rights vis-a-vis the state in Kazakhstan. Like many dictatorships,

it fares poorly in cross-national evaluations of both rule of law and property rights:

in the Heritage Foundation’s 2015 Rule of Law index, which is derived from scores for

75

property rights security and corruption, it ranks just 140th of 177 countries (Heritage

Foundation, 2016). Similar to what Markus (2015) and Gans-Morse (2015) found

in Ukraine and Russia, local executive o�cials drive that insecurity; most property

conflicts between citizens and the state involve the akim’s administration, or akimat.

As one respondent noted, “They try to steal as much as they can before they leave

[their post]” (Ethnography, Shymkent, 2/2015). Seizures for eminent domain are a

prominent and widespread source of this conflict, especially in rapidly-growing, major

urban areas like the capital, Astana. Many respondents lambasted the akimat for the

“injustice” they endured, railing against a state that “doesn’t respect its people” or

“doesn’t care for its citizens” (Landholder Interviews 6 and 7, Astana, 10/2015).16

At first blush, then, we see little evidence that law matters in this context – at least

in terms of shaping behavior.

Indeed, that was the attitude with which I began preliminary field research. Yet,

in conversation after conversation, I found informants highly concerned with the con-

tent of the law itself. For them, law clearly meant something, and while informal

institutions certainly matter in Kazakhstan, the state has also invested extensively

in complex legal codes. Why? If laws are there to be ignored, why expend sub-

stantial state resources on them? Addressing this question requires a more nuanced

approach than simply pitting formal and informal institutions against one another

for influence: we need to examine how law interacts with informal institutions like

patron-client relationships. Specifically, I argue that law matters because it communi-

cates the dictator’s preferences to his subordinates, including local executives. Thus,

16“Nespravedlivost’... Gosudarstvo ne uvazhaet svoj narod; Gosudarstvo ne uvazhaet grazhdan.”

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while law doesn’t constrain the autocrat or other top elites in the state’s vertically-

organized hierarchy, it does impact the behavior of those who comprise the remainder

of the state organization; if they fail to remain within the law, they risk censure by

the courts. Sometimes, as in the example of eminent domain, the central regime also

purposefully retains ambiguity or contradictions in the law. Law sets bounds within

which o�cials and judges must operate, but allowing for a legal “gray area” gives

them a ‘menu’ of options from which to choose. This makes it possible to favor those

with connections; it also allows o�cials to engage in rent-seeking while technically

remaining within the letter of the law. Though courts’ default in disputes between

citizens and state o�cials is to provide the legal minimum, or ‘floor,’ law can combine

with informal influences, such as personal ties to the regime, to influence rulings.

This argument fits well within existing characterizations of autocrats as ‘above the

law,’ and reflects the idea that dictators “rule by law” (The struggle, n.d.; Ginsburg

& Moustafa, 2008) rather than being constrained by it. However, it adds impor-

tant nuance to the latter concept because it accounts for the role of law beyond its

use for repression, and helps explain why even regimes with ‘one-man rule’ expend

substantial resources to develop complex bodies of law (and courts to enforce that

legislation). In doing so, it adds to our understanding of the role that formal in-

stitutions play in authoritarian governance more broadly, and sets the stage for the

subsequent discussion regarding courts and the regime.

3.2 Law in Autocracies – an Overview and a Puzzle

That law influences o�cials’ behavior runs counter to how we tend to think of

their role authoritarian regimes. Most autocracies depend on informal, subjective

77

application of power to survive. While formal rules exist, they often seem of little

consequence; citizens’ legal rights, including those to property, are regularly and bla-

tantly violated. This has generated a literature that emphasizes the need to empower

courts or other institutions to constrain other state o�cials. For example, for secure

property rights to exist, the state must be restrained from predatory behavior that

targets constituents: North & Weingast (1989) argue that, “the development of free

markets must be accompanied by some credible restrictions on the state’s ability to

manipulate economic rules to the advantage of itself and its constituents...” Absent

those restrictions, the rules are assumed to violated regularly; rather than law shap-

ing state o�cials’ behavior, they simply sidestep it. North and Weigast (Ibid) find

that it was the existence of a “credible threat” – the successful dethroning of two

kings – that led the monarchy in Great Britain to tie its own hands and stop “future

irresponsible behavior” regarding property. This required a direct threat enforced

by new institutions that facilitated monitoring (i.e., regular meetings of Parliament)

to ensure the Crown’s restraint. Authoritarian regimes, especially personalist ones,

usually lack these ‘hand-tying’ institutions, and without them, rules seem more akin

to suggestions than constraints. Hence, there has been relatively little attention paid

to law as a topic of study in authoritarian regimes.

However, if law is little more than suggestion, why do some regimes invest so

heavily in it? Why spend significant time and resources to develop, revise, and dis-

seminate detailed legal statutes? For example, Kazakhstan’s Land Code alone spans

over a hundred pages, and has been updated numerous times since its introduction

in 2003. Moreover, its introduction was highly controversial (Expert Interview 6,

Astana, 6/2015), and proposed amendments in 2016 sparked mass protests in cities

78

throughout the country – a highly unusual occurrence in such an authoritarian state

(Lillis, 2016).This level of detail and attention to revision makes little sense if laws

do not matter for governance: why bother with hundreds upon hundreds of pages of

detailed documentation and the manpower required to create them if they are empty

and meaningless?

Unfortunately, existing literature o�ers limited insight into law’s role in governance

in non-democracies. A notable exception is the relatively small literature on the role

of constitutions in authoritarian regimes. As the ‘highest law of the land,’ constitu-

tions can sometimes seem especially superfluous in regimes which are defined by their

lack of constraints on the ruler. Many make claims in direct opposition to their real-

ity; for example, according to its constitution, Kazakhstan is a “democratic, secular,

legal, and social state whose highest values are the individual and their life, rights

and freedoms” (Konstitutsiia Respubliki Kazakhstan, 2011, Article 1).17 This hardly

describes an autocracy led by the same person for nearly three decades, where dissent

is harshly repressed. However, these contradictions do not explain why authoritarian

regimes adopt constitutions. Despite their ubiquitousness, they are “costly to adopt,

consuming significant political energy and time,” (Ginsburg & Simpser, 2013, p.1).

Ginsburg (Ibid, p.6) outlines four functions that they can serve: “operating manuals,

billboards, blueprints, and window-dressing.” When constitutions serve as operating

manuals, they provide instructions for actual political practice; this is the function

we tend to attribute to both constitutions and laws. In contrast, constitutions that

serve as “billboards” send a signal about policy intentions, while “window-dressing”

17“Respublika Kazahstan utverzhdaet sebja demokraticheskim, svetskim, pravovym i social’nymgosudarstvom, vysshimi cennostjami kotorogo javljajutsja chelovek, ego zhizn’, prava i svobody.”

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constitutions are “designed to obfuscate actual practice” (Ibid, p.7). Finally, consti-

tutions that serve as blueprints describe things “as they might be” (Ibid, p.8). In

practice, a single constitution may fulfill more than one of these functions, depend-

ing on its provisions. Hale (2011) approaches constitutions di�erently, finding that

they shift coordination among informal, patron-client networks; presidentialist consti-

tutions lead to single-pyramid networks, while semi-presidentialist or parliamentary

documents lead elites to coordinate around competing patron-client organizations.

While this argument echoes parts of Ginsburg & Simpser (2013)’s characterization,

its inclusion of informal institutions highlights the need to examine formal rules in

conjunction with their informal counterparts. In short, constitutions can matter in

very di�erent ways, depending on context, but nowhere should we casually dismiss

them for the contradictions they create between law and practice.

Elsewhere in the literature, law is often discussed in the background or implicitly

with discussions of courts. For example, Ginsburg (2008) outlines the rise of adminis-

trative law (and courts) in China as a response to the regime’s decreased reliance on

ideology to address principal-agent problems. Also writing about China, Peerenboom

(2002) finds the need to attract foreign investment led the regime to develop com-

mercial law and courts that increasingly supported Western practice and preferences.

Silverstein (2008) finds a similar phenomenon in Singapore, where impartial commer-

cial courts (and implicitly, law) emerged as part of a deliberate strategy to attract

foreign direct investment. However, the same commercial laws seen in Singapore may

be mere window-dressing for international donors somewhere else. In other words,

the same or similar laws may function very di�erently depending on where they are

enacted. For example, Way (2002) finds that seemingly negative incentives built into

80

Ukraine’s formal budget rules were undermined by state weakness; a decentralizing

reform intended to correct those incentive structures actually ended up undermining

the authority of the central government instead. Thus, we need to pay close attention

not only to laws’ language, but also how they are shaped by and interact with informal

institutions. Without incorporating the broader (formal and informal) institutional

environment in our analysis, we will necessarily misattribute outcomes.

A critical question then becomes how law is understand and matters in conjunction

with the constitution, the overall legal system, and the sociopolitical and organiza-

tional context in which it is embedded. In other words, we not only need to examine

the de jure institutions themselves, but also their background and de facto practice.

For example, if a constitution serves as mere window-dressing, we might consider

other laws as the same or operating independently – and likely, enforced in a di�erent

manner than in a regime where the constitution serves as a blueprint and laws are

more concretely connected to it. The type of legal system also shapes the possibilities

that individual statutes o�er. In particular, civil law systems are much more likely

to be found in autocracies like Kazakhstan (Joireman, 2004); without the possibility

of judicial review, courts’ ability to shift the meaning of law can be more easily lim-

ited. In addition, formal, state-backed law can exist in competition with traditional

or other types of informal rules or norms, which can a�ect their interpretation and

implementation. Lazarev (2017) finds that in Chechnya, where customary and Sharia

law exist in tandem with Russian state law, individuals are more likely to choose cus-

tomary or religious law in the abstract; however, describing specific disputes makes

choices less ideological and increases the likelihood individuals will prefer Russian

law. Moreover, state o�cials themselves were more likely to prefer customary law

81

over state law, which may influence how they implement the latter; indeed, Lazarev

cites examples where custom or religious practices played a role in legal disputes in

state courts (Ibid). In short, state-backed law makes little sense out-of-context.

This means – like many things in authoritarian regimes – that we cannot take

law at its face value. Rajah (2012)’s work on Singapore illustrates this point well.

She examines several di�erent laws, including the 1966 Vandalism Act, Newspaper

and Printing Presses Act, and 2009 Public Order Act, and finds that they have been

developed purposefully to quash particular forms of protest against Singapore’s au-

thoritarian regime. For example, at first glance, the country’s strict anti-gra�tti laws

and their enforcement might easily be attributed to the regime’s commitment to order

and rule of law; she finds that they were introduced following the use of gra�tti by

opposition protesters (Ibid). Laws’ meaning, then, may also be contingent. Gra�tti

laws may be straightforward regulations for state o�cials (instruction manuals, to

use Ginsburg & Simpser (2013)’s terminology) designed to create cleaner cities, or

they may be a way in which the regime ‘rule[s] by law’ (Ginsburg & Moustafa, 2008).

Laws protecting firms’ property rights may be window-dressing, or they may repre-

sent a commitment by the regime to encouraging foreign investment and economic

development. Only by examining laws’ development and their subsequent application

and enforcement by the state can we appropriately attribute meaning to them. In

short, in addition to locating them in their broader sociopolitical environment, we

need to ask why they came to exist, and how.

Certainly, this means that we cannot completely separate law from courts; in

many ways, they have a mutually-constituitive relationship. However, how judicial

enforcement is carried out is itself contingent on laws’ development and place in a

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country’s governance. What, if any, broad points can we then take away about why

authoritarian regimes like Kazakhstan invest in law? What purpose does it serve?

3.3 Law as Communication

I argue that in vertically-organized authoritarian regimes like Kazakhstan, law

serves an important function: it communicates the dictator’s preferences to his sub-

ordinates. The costs involved in creating new laws underscore the strength and stabil-

ity (at least in the short- to medium-term) of those preferences. In communicating a

commitment to particular approach, law shifts expectations about the risk associated

with certain behaviors – thus, the incentives to engage in them in the first place. The

idea that creating new laws involves costs runs counter to how we tend to think of

law in autocracies, because unlike in their democractic counterparts, a single person

can order a law’s creation. However, it still requires significant time and expertise to

draft new statutes, and laws that address potentially politically-sensitive issues are

unlikely to be issued without the dictator’s direct involvement. That involvement in

and of itself is a major cost; dictators’ time is limited. In addition, in most countries

(incluing Kazakhstan), new laws are publicly distributed. Public agencies receive and

circulate copies of relevant new legislation, and it is also printed in publicly-available

sources, such as newspapers and law books. Moreover, government bureaucrats pay

very close attention to new laws pertaining to their area of expertise. For example,

one high-level city o�cial detailed how her o�ce scanned o�cial newspapers every

morning for changes to legislation (O�cial Interview 3, Astana, 12/2015); heads of

professional associations similarly recounted the necessity of staying up-to-date on the

law (Appraiser Interview 1, Astana, 5/2015; Appraiser Interview 8, Almaty, 12/2015).

83

By investing the time and resources required to translate a stance on a particular issue

into law, the dictator signals the strength of his preference, and increases the expec-

tation that it is stable. Though law can be changed far more quickly and with far less

compromise in an authoritarian regime than in a more open polity, it nonetheless rep-

resents a much more time- and resource-intensive means of transmitting information.

Hence, it signals internal audiences that a policy shift has occurred, and outlines its

parameters.

In addition, instruction from the center is disseminated through the hierarchy to

judicial and other organizations in order to clarify its application – and the central

regime’s intent to enforce particular provisions. In this way, law helps coordinate local

o�cials’ mutual expectations about what behavior is expected or tolerated, which in

turn impacts their actions. In other words, law communicates acceptable behavior for

parts of the state organization outside the ruling coalition. This should not be mis-

taken for a claim that all local o�cials will follow the law all of the time; compliance is

never perfect in any regime, and authoritarian regimes face severe information prob-

lems that arguably exacerbate this issue even more. However, law-as-communication

means that disregarding these rules e�ectively means ignoring the dictator’s recorded

preferences. That in turn heightens the risk associated with such behavior, and (con-

tingent on the regime’s monitoring capacity) influences their actions and what they

expect from others.

Importantly, however, this characterization does not apply universally to every

law. Even in harsh autocracies, the majority of legislation regulates mundane topics

and serves a basic regulatory function. Others, as Rajah (2012) eloquently details,

are developed or used to quash political opposition (Pereira, 2008, 2005; The struggle,

84

n.d.). However, some laws fall into a ‘grey’ zone when it comes to “rule by law,” and it

is these to which I argue ‘law-as-communication’ applies. Such laws deal with political

(or potentially politically-important) issues which take on a heightened sensitivity in

certain cases. Economic issues like property rights, contracts, labor, and housing are

particularly likely to fit this description, either because they impact the distribution

of key resources or because they have widespread political salience. For example,

growing discontent over labor conditions following the drop in oil prices has led the

Kazakhstani regime to enact increasingly stricter trade union laws (Williamson, Feb

2017). This signalled a shift in central policy; the fact that change was encoded in law

underscored for local o�cials (and citizens) the issue’s political importance. It also

announced that their approach to dealing with such organizations should change, and

Kazakhstan has subsequently seen o�cials take a much tougher stance toward them

(Ibid).18 Thus, while most of the time professional organizations (of which there are

many in Kazakhstan) are not particularly politically-sensitive and the central regime

pays them little heed, their potential to take on this quality means that they are more

likely to be the target of new legislation.

Where law communicates the dictator’s preferences on these in-between topics, it

can be classified as reactionary, declarative, or collaborative. Reactionary laws ad-

dress a pattern of behavior that the autocrat would like to curb, while anticipatory

laws anticipate and attempt to address issues that are expected to arise; declara-

tive laws simply signal a new policy initiative. Finally, collaborative laws are those

which are most likely to impact key sectors of the economy or resonate popularly, and

for which the autocrat solicits extensive input as they are developed. For example,

18This approach can also backfire, as it may have in this instance: workers have engaged inextensive protests over the restrictions on their ability to organize.

85

the law on professional organizations mentioned above emerged in response to grow-

ing tensions and attempts to organize by workers; thus, it is reactionary in nature.

Declarative laws signal a shift in policy, and may be intended for external audiences;

it is likely that the proposed changes to the Land Code in 2016, which increased the

term for which foreigners could lease agricultural land, was intended in that vein.

However, it triggered so much popular backlash that the president backtracked, and

created (publicized) working-group meetings on the changes – thus giving it more of

a collaborative flair.

The degree to which law coalesces with existing, higher legislation also matters

– though not necessarily in the way we might expect. Laws in this ‘grey’ area will

often be those which seem meaningless because they are not followed in a consistent

manner or conflict with other, higher-level laws or regulations. However, I argue

that this ambiguity can be intentional: where elites’ interests are sometimes at stake,

the regime may wish to provide a range of potentially ‘permitted’ outcomes. Since

(in a civil law system) courts cannot interpret law and can only rule according to

what is spelled out in existing statutes, creating what e�ectively constitutes a legal

‘menu’ of options makes it possible to simultaneously favor state o�cials and eco-

nomic or political elites, while o�ering very di�erent outcomes for most others – and

still stay (technically) within the law. In legal conflicts, individuals with stronger

informal connections (especially including state o�cials or agencies) can expect the

more favorable ruling from courts, while others will receive the least-favorable option.

Moreover, because in civil law systems, courts do not rule on the constitutionality

of laws (and because citizens cannot challenge their interpretation or legality within

the court system), the judicial system does not consider precedence when hearing

86

cases. This facilitates judges’ ability to pick and choose from the available ‘menu’ in

accordance with informal pressures. By keeping an overall framework set by the law,

the regime can thus claim to espouse a commitment to a preexisting legal standard,

while at the same time accommodating the principals of “limited access” (North et

al., 2009) which support its rule. In other words, law influences behavior by bound-

ing what is ‘allowable,’ e�ectively creating a system in which law can look extremely

di�erent for di�erent individuals. This argument is distinct from claims that law

does not matter at all. While true for the autocrat, it is not for most o�cials, who

are obliged to take law as an exogenously-given set of guidelines. As a result, we do

not see rule of law in the sense that law serves as a consistent standard; instead, its

influence on behavior stems from the set of choices it provides.

In short, law constitutes an e�ective and flexible means of communicating the

central regime’s preferences, while accommodating conflicting informal pressures. In

conjunction with a civil law system and hobbled constitutional court, it allows the

flexibility to simultaneously favor those with stronger connections to the regime, en-

sure minimal standards are followed, and justify those decisions based on an appeal to

abstract, already-standing rules and procedures. Thus, while law does not constrain

the dictator, it does set limits on other parts of the state, such as local o�cials. These

bounds are dynamic, and depend on both the legal ‘menu’ available and the informal

ties which individuals possess – as well as monitoring and enforcement (a topic I

address in the next chapter). In doing so, law serves as a useful tool for governance

that “contribute[s] to the generation of shared mutual expectations among political

actors” (Carey, 2000, p.735).

87

3.4 Property and Eminent Domain in Kazakhstan

This section takes a step back and examines eminent domain in Kazakhstan

through both de jure and de facto practice. Kazakhstan’s Land Code grants the

local executive government, or akimat, extensive authority over land rights, includ-

ing the right of eminent domain. Law plays a prominent role in structuring conflict

land seizures, as well as the conflict they generate. In particular, the Law on State

Property features heavily in disputes over eminent domain, and its introduction and

subsequent use illustrates how law serves a communication function for the dictator

– albeit one with unintended externalities.

3.4.1 Characterizing Land Rights

Understanding law’s role in eminent domain seizures requires some general back-

ground on land rights. Kazakhstani law stipulates that all land rights – private or

otherwise (e.g., long-term leases) -– must be registered with the local division of the

Ministry of Justice. Without registration, no state agency recognizes an individual’s

or firm’s land rights. Formal rights to land begin only from the moment of registra-

tion. Thus, anyone who has any legal basis to land has a strong incentive to register

it, and many do; especially in urban and rural areas, respondents could generally

produce an akt na zemlu (land act/certificate). In newly-settled suburban areas,

respondents were more likely to lack these documents, and also did not pursue legal-

izatsiia, or legal registration of homes built on their land, until they were preparing

to sell it (registration is required for a sale to be valid and for rights to transfer).

In addition to these suburban settlements, city residents who obtained land through

inheritance sometimes did not register it; they tended to provide other documents,

88

such as proof of inheritance, when asked how they asserted their claim to a land plot.

In such cases, landholders cited the time required to complete the registration process

as the greatest barrier to formalizing land rights. Attorneys and some companies will

register property for landholders, and on average, said that it required 1-2 months to

complete.19 Only in one region did respondents regularly cite the need to pay bribes

to accomplish any of the above functions, or use language that hinted corruption

played a role (Attorney Interviews 12, 14, Shymkent, 4/2015). Indeed, an attorney

who specialized in helping clients with property registration stated that she chose

this area of practice because it was relatively straightforward and free from corrup-

tion (Attorney Interview 23, Astana, 10/2015). In short, land rights – especially in

urban areas, with more-developed real estate markets – are defined and documented

by the state, and both landholders and state o�cials carefully referenced this legal

basis for ownership when discussing “land relations,” including in court.

How ownership is legally defined and delimited matters for how those rights may

be exercised. Although private ownership of land exists in Kazakhstan, the state is,

according to the Land Code, the ultimate owner (Zemel’nui Kodeks Respubliki Kaza-

khstan, 2016, Article 3); however, state and private property rights exist under that

declaration. In cities and population centers, it is predominately privately-owned, and

further divided into categories of use: agricultural; housing or settlements; industry,

transport, communications, defense and other non-agricultural purposes; protected

areas (parks, etc.); forest; water resources; and reserve land (Ibid, Article 1). The first

category includes lands designated for dachas (summer cottages) and horticulture,

19For example, Interviews with Landholders 7 and 8, Astana (November, 2015)

89

which allows only temporary (seasonal) residence (Ibid, Article 102). This particu-

lar restriction is often violated in practice; many families who moved to Astana or

Almaty bought these dachnye uchastki because they were cheaper than land desig-

nated for housing, and constructed permanent dwellings on them. While it is possible

to transfer the category of use (for example, from agricultural to individual housing

construction) this process is “lengthy” and requires consent from the akimat (Ibid,

Section 2; Attorney Interview 3, Shymkent, 2/2015); moreover, the requirement of

seasonal residency was generally not enforced, so landowners had little incentive to try

to change their land’s legal status. As a result, though much of this formally-marginal

land became engulfed by expanding cities, it remained classified for seasonal use. This

generated conflicting expectations: many landowners in the capital, Astana, expected

that their plots would be recategorized when the administrative borders of the cities

were expanded to include their property. Their expectations were supported by an

o�cial declaration that there would be ‘no more dachnye uchastki (seasonal plots)

in the city,’ which they took to mean automatic reclassification (Expert Interview

5, Astana, 4/2015).20 The ambiguity surrounding how this announcement would be

interpreted did not resolve in their favor, however. Instead, the akimat responded

that,

The reason for disagreement among some owners of dachnye uchastki isthat they use them for permanent residence...Paragraph 28 of Article 2of the Law of the Republic of Kazakhstan “On Housing Relations” es-tablishes that permanent dwellings...are a separate housing unit... Fromthe foregoing it follows [that] the actions of state bodies for the seizure of

20In addition, they were allowed to register their residency at these plots. Kazakhstan requiresinternal residency registration, and technically registration must be at an address that is zoned forpermanent occupancy. According to the above-cited expert, residents in this neighborhood wereregistered by representatives from the akimat before an election in a bid to improve turnout in thatdistrict.

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land for state needs...are legal. (Letter K87-3T, Akimat Goroda Astanu,August 12, 2014).21

Land designated for seasonal or garden thus remained subject to far lower compensa-

tion than other property, which in turn made it a cheaper target for seizure by local

governments. As the next section details, this was to o�cials’ benefit in conflicts over

eminent domain.

3.4.2 Eminent Domain

Eminent domain refers to the seizure of private land for public needs. This and

most other formal authority for administering land rights rests with the local akim,

including the authority to grant new leases, approve lease extensions and renewals,

approve land sales, seize land for state needs, and transfer land from one category of

use to another (Zemel’nui Kodeks Respubliki Kazakhstan, 2016). Only private land

sales do not require an akim’s approval; essentially, he or she acts as the single chan-

nel for an extensive range of decisions related to land rights. In each district there

is a land committee, responsible for reviewing applications and providing recommen-

dations to the akim. These local-level land committees are also those responsible for

surveying and establishing boundaries to land. However, committee members – as

well as those in other local-level branches of agencies are appointed separately from

their counterparts at the regional level (with the agreement of the regional ministry),

and operate under the local akim’s supervision (Attorney Interview 12, Shymkent,

4/2015). Perhaps unsurprisingly, this concentration of authority over land rights in

21“Prichinoj nesoglasija nekotoryh sobstvennikov sadovodcheskih uchastkov javljaetsja to, chto oniispol’zuet ih dlja postojannogo prozhivanija... Punktom 28 stat’i 2 Zakona Respubliki Kazahstan"O zhilishhnyh otnoshenijah" ustanovleno, chto zhilishhe .. otdel’naja zhilaja edinica... Iz vyshei-zlozhennogo sleduet...dejstvija gosudarstvennyh organov po iz"jatiju zemel’nyh uchastkov dlja gosu-darstvennyh nuzhd...javljajutsja zakonnymi.”

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the akimat generates opportunities for rent-seeking. For example, one attorney, re-

counting his own experience as a landowner, described how he had applied to change

the classification of a plot of agricultural land near the city’s outskirts so that he could

sell it in smaller parcels for a profit. The local government refused his application,

and he decided to sell the land (for far less money) with its current classification. He

claimed that a relative of the akim then bought it, quickly changed its designation,

and subdivided it into individual plots that each sold for close to the total amount

of the original plot; presumably, the akim took a portion of those profits (Attorney

Interview 3, Shymkent, 2/2015). As profitable as schemes like these are, however,

in areas with rapidly-rising property values, the most lucrative forms of rent-seeking

involve eminent domain.

Kazakhstani law guarantees private ownership rights to land, but like most coun-

tries, makes exceptions when land is required for public needs. The legal basis for

eminent domain can be found in the second and third points of Article 26 of the

Constitution, which reads:2) Ownership, including the right to inheritance, is guaranteed by the law.3) No one can be deprived of the their property, except by the decision ofa court. Forced alienation of property for state needs in exceptional casesprovided for by law may be carried out on condition of equal compensation(Konstitutsiia Respubliki Kazakhstan, 2011).22

Legally-acceptable reasons for seizing land for state needs include: obligations stem-

ming from international treaties; land needed for security and national defense; the

construction (or reconstruction) of transportation and other objects of public use; and

objects that fulfill the general plan of cities and towns, paid for from the state budget22“2. Sobstvennost’, v tom chisle pravo nasledovanija, garantirujutsja zakonom. 3. Nikto ne

mozhet byt’ lishen svoego imushhestva inache kak po resheniju suda. Prinuditel’noe otchuzhdenieimushhestva dlja gosudarstvennyh nuzhd v iskljuchitel’nyh sluchajah, predusmotrennyh zakonom,mozhet byt’ proizvedeno pri uslovii ravnocennogo ego vozmeshhenija.”

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(Zemel’nui Kodeks Respubliki Kazakhstan, 2016, Article 84, pt.2). While these justi-

fications are relatively straightforward, in practice they provide ample opportunities

for akims to profit. For example, in one neighborhood in Astana’s rapidly-growing

“new” city (as opposed to the older, colonial-era center), some 55 plots and 330

hectares (approximately 815 acres) were seized for state needs; the o�cial justifica-

tion was the construction of a new kindergarten. However, as one resident sco�ed,

“On a plot that size they could build a kindergarten big enough for all the children

of Astana... Most of it will go to commercial development, and anyway, half of the

places in the kindergarten will be for elites [from the oil company]” (Ethnography,

Astana, 9/2015).23 Morever, land in this neighborhood was categorized for dacha

use. As a result, it was valued far lower than if it had been designated for permanent

residency – and thus, was cheaper for the akimat to seize. In this and many other

cases, the land “leftover” after the construction of the public-use object, such as the

kindergarten, is then resold to developers. As another neighbor added with disgust,

“The akimat takes [the land] cheaper to ‘get his,’ and we’re left standing like a herd

of sheep” (Ibid).24

While interviews with attorneys suggest that the above type of “middleman”

scheme is now the most common, several respondents claimed that it represents a

shift from another, previously more-widespread tactic. That strategy can be de-

scribed as a type of “insider trading,” and interviews suggested two variants. In the

first, the akim had information about what land was slated for development of (for

example) a new roadway, and bought it from the current owners through a trusted

23This quote was recorded in its English translation.24“Akimat vzjat deshevle chtoby poluchit’ svoe, i my stali stada baranov..”

93

contact; when the time came for the land to be taken, he worked with the appraiser

to inflate the value of the land, and pocketed the proceeds (Attorney Interviews 1

& 2, Astana, 9-10/2014). Alternatively, the akim worked with both the landowners

and appraisers, and gave each of them a portion of the proceeds for agreeing to the

inflated evaluation (Attorney Interview 14, Shymkent, 4/2015). In addition, because

appraisers are licensed through the local government, that licensure can be used as

leverage to require them to appraise property in a particular way (Tubaev & Gulam-

ova, 2014). Both variants on this scheme generated substantial rents for the akim, and

were di�cult for the central regime to uncover; because everyone a�ected profited,

no one had much incentive to complain (or file a court case disputing the seizure).

Everyone involved was farther ahead, that is, except for the central regime: the funds

provided to local governments for these public works projects come from the repub-

lican budget (Attorney Interview 24, Astana, 12/2015). Though it is impossible to

verify these schemes’ frequency, independently-contacted respondents across all three

regions and two professions (attorneys and appraisers) concurred in describing it as

being very common several years ago.

At the same time, the leniency regarding higher compensation benefited ordinary

landowners. As one group of respondents explained to me, when numerous homes

were seized years before in the city’s old colonial- and Soviet-era center, people “bar-

gained” with the akimat and found a “golden center” on which they could agree

(Ethnography, Astana, 9/2015).25 An attorney with extensive experience in these

cases echoed this assessment, claiming that previously, landowners and the akimat

were able to come to a “fair” agreement (Attorney interview 32, Astana, 9/2016).

25“Torgovvalis’ s akimatom...nashli zolotoj centr.”

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Part of this perceived satisfaction may have been derived illicitly: the same attorney,

in describing these cases, said judges used to [rubs fingers together] whenever they

saw them on the docket, implying that citizens bribed them for higher compensation;

however, judges now “fear losing their position” and are unwilling to significantly

raise the price (Ibid).26 Today, however, the amount of compensation landholders are

o�ered for land seized for state needs is a highly “spornyj vopros,” or controversial

issue. Indeed, every attorney I interviewed in Astana listed it as citizens’ top concern

regarding land; it was among the top three in Almaty and Shymkent. Unfortunately,

the data do not exist (at least publicly) to verify the extent to which these current

perceptions reflect individuals’ actual attitudes at the time, or if there has been a

marked change in the real levels of compensation o�ered in cases of state seizure.

However, one point became clear over the course of fieldwork: landholders, attorneys,

and appraisers alike were united in pointing their fingers at the 2011 Law on State

Property (Zakon Respubliki Kazahstan “O gosudarstvennom imushhestve” , 2011).

3.5 Birth of a Legal Conflict

The Law on State Property (hereafter, LSP) was introduced in 2011, and Kaza-

khstan’s Land Code was also amended to reflect its addition. Previously the Land

Code had regulated compensation in accordance with Article 87, pt.2, which reads:When determining the price for a purchased land plot, it includes the mar-ket value of the land plot or the rights to it and the immovable propertylocated on it, as well as all losses caused to the owner or land user in con-nection with plot’s loss, including the losses incurred in connection withthe early termination of obligations to third parties (Zemel’nui KodeksRespubliki Kazakhstan (Staraja redakcija), 2007).27

26These notes were recorded in English.27“Pri opredelenii ceny za vykupaemyj zemel’nyj uchastok v nee vkljuchajutsja rynochnaja stoimost’

zemel’nogo uchastka ili prav na nego i nahodjashhegosja na nem nedvizhimogo imushhestva, a takzhe

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However, the amended Article 87 now simply refers to Section 6 of the LSP, and it is

this section that has attracted widespread criticism. While Kazakhstan’s Constitution

calls explicitly for “equal compensation,” the LSP contains a provision stating that,

The cost of a land plot designated for individual housing constructionor for a personal farm...on which an individual dwelling house is locatedthat has been alienated for state needs is determined by the amount of thevalue of the land plot and immovable property located on it, and cannotexceed their market value. The cost of a land plot alienated for stateneeds, transferred to the owner under a civil law transaction or by a courtdecision, is determined by the amount specified in the civil lawcontract or in a court decision, but not exceeding the marketvalue. In the event that the civil law contract does not specify the pricefor the land plot, its value is determined by its cadastral (estimated)value [emphasis added] (Zakon Respubliki Kazahstan “O gosudarstvennomimushhestve” , 2011, Article 67).

In other words, the compensation should be the same as that listed in the last sale

or purchase agreement, and if that agreement does not list a price, then by the plot’s

cadastral value. One attorney recalled how she found this provision so alarming that

she immediately advised her friends and family to transfer any property they had

to a family member in order to protect themselves (Attorney Interview 6, Astana,

3/2015). It is not di�cult to see why she was worried: if, for example, a family

acquired a plot of land in the early 1990s, its market value today could be many

times greater than its original purchase price (even after adjusting for changes in the

value of the currency). Similarly, cadastral values often lag far behind the actual

market value of land. As a result, this provision means that in the event of seizure,

landowners can find themselves facing an enormous loss of capital.

vse ubytki, prichinennye sobstvenniku ili zemlepol’zovatelju v svjazi s utratoj zemel’nogo uchastka,vkljuchaja ubytki, kotorye oni nesut v svjazi s dosrochnym prekrashheniem objazatel’stv pered tret’imilicami.”

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Indeed, this is exactly what has happened in many cases concerning eminent

domain. One landowner described land seizures as “the first sickness of the state and

people” (Landholder Interview 9, Astana, 12/2015). In court, one woman became

so distraught over her family’s situation that she had to be temporarily escorted

outside the courtroom. She tearfully begged the appellate judge over and over to,

“Listen to us, please... We can’t buy anything in the city for this price.” Her husband

interjected, “We want equivalent compensation.” The woman continued that, “We

were born here, before it was even the capital...this isn’t an equivalent dwelling. We’re

going from better to worse conditions. We’ll be on the street!” (Ethnography, Astana,

11/2015).28 In Almaty, another woman similarly decried the akimat’s actions:

Let the initiators of this look me in the eye. Who is it? The akim orwho? Let him look me in the eye, where should we live after a payment of360,000 tenge?29 We did not bother anyone, we did not ask for anythingfrom the state. Why are we now being evicted from our home to live in acardboard box? (Quoted in (Polovinko, April 2014)).30

Among the landowners I spoke with, as well as those who I observed in court, this

was a constant theme: they were o�ered substantially less than their land’s market

value, and were at a loss as to how they might find somewhere else to live with the

compensation they’d received.

Stories like these are ubiquitous in Astana and Almaty (and to a lesser extent in

Shymkent), and are connected with urban development. One expert described state

28“Uslyshite nas, pozhalujsta... My ne mozhem nichego kupit’ v gorode po jetoj cene... Suprug:My hotim ravnocennuju kompensaciju... Zhena: My zdes’ rodilis’, dazhe do togo jeto byla stolica...Ne ravnocennoe zhil’jo – iz luchshih v huzhih sostojanie.. Budem na ulice.”

29This is about $1,115.30“Pust’ mne posmotrjat v glaza iniciatory jetogo. Kto jeto? Akim ili kto? Pust’ on mne v glaza

posmotrit, gde my dolzhny zhit’ posle vyplaty 360,000 tenge (a little over $1,000)? My nikogo netrogali, my ot gosudarstva nichego ne prosili. Pochemu nas sejchas vyseljajut iz jetogo doma zhit’ vkartonnoj korobke?.”

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land seizures as “the most acute problem” currently related to land in Astana and

Almaty (Expert Interview 10, Astana, 10/2015). Shaking her head, one attorney

noted with frustration that, “The state has no respect for property owners” (Attor-

ney Interview 23, Astana, 10/2015). That violation, as she and many others have

argued, comes from the fact that Article 67 contradicts the constitutional provision

for equivalent compensation in cases of seizure under eminent domain. “The nuance

is in the fact that one law is used, while ignoring another,”31 stated attorney Igor

Meerzon in an interview with the journal New Kazakhstan (Polovinko, April 2014).

However, as various attorneys have stated both publicly and during interviews, this

practice violates constitutional norms (Esenalina, Aug. 2015; Jeranov, Sept. 2013).

It is also “clearly written” in the Civil Procedural Code that “if the court sees the

grounds for applying to the constitutional council and the recognition of the norm

unconstitutional, it is obliged to suspend the proceedings” (“Chinovnich’im razboem”

nazvali iz’jatie zemel’ pod stroitel’stvo BAKAD, Sept. 2013).32 In other words, if a

court sees merit in arguments that the use of Article 67, pt.2 to determine compen-

sation is unconstitutional, they are technically obligated to bring a case before the

Constitutional Council concerning the law.

I witnessed numerous court cases where participants made this exact argument:

the compensation o�ered by the akimat was far less than the current market price,

and this lack of equivalence rendered it unconstitutional (Ethnography, Astana, 10-

12/2015; 9-11/2016). In a typical example, a group of neighbors described how “they

[the akimat] violate the rights of property owners...the acts are contradictory...the31“Njuans lish’ v tom, chto ona pol’zuetsja odnim zakonom, ignoriruja drugoj.”32“V grazhdansko processual’nom kodekse chetko propisano, esli sud usmotrit osnovanija dlja

obrashhenija v konstitucionnyj sovet i priznanija normy nekonstitucionnoj, on objazan priostanovit’proizvodstvo po delu.”

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Constitution is higher (Ethnography, Astana, 9/2015).33 The President of the Union

of the Protection of Entrepreneurs and Owners described this as a clear pattern: “As

our judicial practice has shown for the past four years, more often than not, the

akimat of Almaty filed a lawsuit against landowners, governed by pt.2 of Article 67

of the Law On State Property” (Esenalina, Aug. 2015). This has led to calls from

attorneys, appraisers, and landowners alike to re-write the LSP and bring it into line

with the Constitution. Others have even used the law as his key example for why

the Constitutional Council should be reformed or transformed into a Constitutional

Court to allow for citizens’ direct appeals (Galimzhanov, Oct. 2016). In short, this

is a widely-acknowledged issue that has attracted substantial public criticism.

Moreover, the LSP itself is not consistent nor consistently applied. Sometimes the

akimat and/or judge relies on the aforementioned point in Article 67, while in others,

the land is appraised by a contractor hired by the akimat. For example, one landowner

in the Almaty area had bought land from the state many years ago, and when the

land was seized for highway construction, the akimat o�ered the same cadastral price

he had originally paid the state for it – despite a sharp appreciation in its value

(Kutlina & Nurdos, Aug 2013). In another case in the Astana Appeals Court, the

defendant had bought their property barely a month before being notified that it

would be alienated. This had the dual a�ect of making Article 67, pt.2 unappealing

for akimat to use and highlighting the blatant discrepancy between the amount they

had o�ered and the market price; consequently, the landowner’s compensation was

doubled in court. In this case, the judge cited the third point of Article 67 in the

LSP, which reads: In addition to the provision tying compensation to the property’s

33“Narushhajut prava sobstvennikov... Akty protivorechnye... a nashi akty (zem kodeks, konstitu-cija) oni vyshe..”

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last sale or purchase price, there is another point in Article 67 (pt.3), that provides

an alternative interpretation:

The value of immovable property located on the land plot is determinedin the amount not exceeding its market value. The market value of a landplot or other immovable property alienated in connection with the seizureof a land plot for state needs is determined by an independent appraiserin accordance with Article 208 of this Law at the time the owner or non-state land user receives a notice of the forthcoming compulsory alienationof a land plot for state needs.

Of course, the appraiser – who again, is licensed and hired by the akimat – set a

value below the recent purchase price. Nonetheless, the shift in the court ruling is

indicative. That same individual later recounted how a neighbor with a similar parcel

had received 135,000,000 tenge (around $425,000, and close to the plot’s actual market

value) – significantly di�erent from their own original o�er of 26 million tenge (about

$82,000; Ethnography, Astana, 11/2015). This example highlights that even with the

application of the same point in the law, di�erences also exist – and they tend to be

flexible in ways that favor the akimat.

There have also been reports of compensation much higher than market value.

At no point did I witness a case or meet a landowner who reflected this assessment;

this was not something that I saw personally. Among those landholders I met or saw

in court, none were satisfied that they had received market-value compensation for

their land. Instead, I observed comments more consistent with landowners’ appeals

to Parliament that they would be made “bums” or homeless “because their land was

seized and they were paid miserly compensation” (Bajmanov, Jan. 2017). However,

the Chairman of the Supreme Court has criticized the “cosmic” compensation paid

for property seized for state needs (Bajmanov, Jan. 2017), and the General Procuror

similarly blasted “overvalued” land seizures (Muminov, May 2014). Audits by the

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General Procuror also found “empty steppe land” valued the same as luxe “cottages”

(kottedzhy, or single-family homes akin to ‘McMansions’ in the United States) in

Astana (General Procuror, 2014).34 Another statement by the Department of the

Representation of State Interests of the General Procuror found that,

...in some cases, guided by the provisions of the Law [on State Property],the price of compensation for the land plot was determined on the basisof its cadastral value, while in others...[it was] the market value at thetime the dispute was resolved (po predstavitel’stvu interesov gosudarstvav sudah General’noj prokuratury, Nov 2013).35

Thus, the legal rationale for calculating compensation in cases of eminent domain

has been inconsistent. At the same time, however, each example has one thing in

common: the akimat or courts consistently relied on law to justify their approach,

and in those I observed, remained within the ‘menu of options’ it provided. In other

words, legislation guides behavior by shaping the bounds within which state o�cials

and judges choose their actions.

Again, however, courts avoided actions that could not somehow be justified using

available legislation, and this e�ectively set a legal minimum. The two cases I observed

where the akimat had failed to pay any compensation resulted in a ruling from both

the district and appeals courts in the landowner’s favor (Ibid). Similarly, in one of

the neighborhoods where I met with landowners, a family stated that the judge asked

whether they had received compensation yet; when they stated they had not, he

refused the akimat’s request to force them to vacate their home, and deferred the

34This report was not released for public consumption; hence, I do not cite it in further detailhere.

35“V svoju ochered’ sudy, v odnih sluchajah rukovodstvujas’ polozhenijami Zakona, cenu za vyku-paemyj zemel’nyj uchastok opredeljali ishodja iz ego kadastrovoj stoimosti, v drugih – ne ustanavli-vaja osnovanija vozniknovenija prav na izymaemoe imushhestvo, vzyskivali rynochnuju stoimost’ namoment razreshenija spora.”

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case to the next-higher court instead. The residents claimed that the judge did not

want to blatantly break the law by evicting them before they’d received any kind of

compensation (Ethnography, Astana, 9/2015). In other words, though in the vast

majority of cases, the LSP applies over hierarchical legal reasoning, judges’ decision-

making is still bound by the formal laws on the books. Law therefore matters not

only because it sets the options available, but also because it provides a ‘floor’ for

local o�cials’ actions.

Moreover, maintaining this particular menu clearly reflects central policy. Not

only are top central o�cials aware that the application of the LSP has attracted

complaints, they have explicitly defended it: in response to complaints from resi-

dents about current practices surrounding the seizure of land for state needs, the

General Procuror claimed that compensation was fair and that in particular, dachnye

uchastki were compensated at rates three times that for which they had originally

been obtained. According to him,Inspection showed that the procedure for the seizure of land plots did notcontradict the requirements of the law, and the actions of the akimat ofAstana were not associated with the pursuit of commercial purposes or fornon-state interests (the plots were withdrawn for the construction of roadsand other objects of state significance, as well as for reasons stipulated bystate programs) (Bajmanov, Jan. 2017).36

In response to a complaint by one attorney that the use of Article 67, pt. 2 of the

LSP was unconstitutional, the same agency issued a statement arguing that the Law

on State Property regulated the seizure of land for state needs, while the Constitution

referred to the seizure of property from owners (Galimzhanov, Oct. 2016). In other36“Proverka pokazala, chto procedura iz’jatija dachnyh uchastkov ne protivorechila trebovanijam

zakonodatel’stva, dejstvija akimata Astany ne byli soprjazheny s presledovaniem kommercheskihcelej i udovletvoreniem negosudarstvennyh interesov (uchastki iz’jaty dlja stroitel’stva dorog, drugihob’ektov, imejushhih gosudarstvennoe znachenie, a takzhe predusmotrennyh gosudarstvennymi pro-grammami).”

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words, he claimed that land did not constitute property, and thus there was no conflict

between the LSP and the Constitution. Clearly that is an absurd proposition, but it

highlights the degree to which the central government is committed to the LSP. Why

commit to a law that has generated so much opposition – and why insist on it in a

form that contradicts the constitution?

For answers, we need to examine how and why the law was drafted in the first

place. A televised meeting that immediately followed its development o�ers some

insight. During the session, the Prime Minister posed a series of questions about

the law: “What about land seizure?” inquired. “The Head of the State assigned an

objective numerous times.”37 The response came that the law made “the procedure

and mechanism of the land seizure process” more concrete, so that “the primary land

owner/user will be compensated at cadastral price, the one that they would pay if

purchasing the land from the government. If a piece of land is from the secondary

market, then we consider a price that was given for land when it was purchased.

Anyway, it will not be higher than the market price,” (Massimov, Mar 2011). This

response suggests that the President was interested in controlling how much is paid

for land that has been alienated for state needs; again, those payments come from

the central budget. The concluding remarks of the meeting also emphasized the need

to ensure that local o�cials would follow Law on State Property:

This law is of high importance that regulates all provisions of state prop-erty, for the first time. Before we had odds and ends. Plus, many tasksnamed by the President are being solved. We need a special propaganda-like campaign to send a message to local authorities (Ibid).

37the objective was not specified in his question

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. In other words, a key purpose of the law was to clarify – and limit – the price

paid for seized land. This aim came directly from the president, and needed to be

emphasized for local akimats.

A roundtable discussion conducted shortly before the law’s introduction also

closely reflected these emphases. In listing the goals of the Law on State Property, the

first point was that the law would clarify state agencies’ responsibilities in managing

state property, and the group’s final resolution emphasized that, “The legal project

fully and with great detail regulates the procedures for obtaining state property rights

in the seizure of property for state needs,” (MJERT, Dec 2010). Yet, as we have seen,

that is technically untrue: the law is inherently problematic. Why ‘fully’ regulate

the procedures for seizure under eminent domain in a way that conflicted with the

Constitution? The answer came in a later interview. When I asked about the LSP,

the expert who I was interviewing immediately exclaimed that it was “pridumany,”

or invented (Expert Interview 10, Astana, 10/2015). He then recounted how he had

had a lengthy discussion with a law professor who helped write the law. According

to his account, land had been seized in South Kazakhstan for the construction of the

Western Europe - Western China highway for millions of dollars in compensation,

sparking a huge scandal:The European Bank of Reconstruction and Development financed thatpart of the road, and they came and asked, “Where’s the road?” “It’s notthere.” “Where’s the money?” “It went toward the purchase [of land].”Then there was a big noise...that led to the introduction of the Law onState Property (Ibid).38

Other respondents had earlier made comments that fit with his explanation. In

Astana, landholders in one neighborhood explained that the higher government said38“EBRD tot chast’ doroga finansiroval – prishel, sprosil: Gde doroga? Netu. Gde den’gi? Na

vykupu poshli...Bol’shoj shum – Zakon o gosimmushhestve.”

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there was speculation; so, to stop speculation among lower government o�cials, he

enacted a law to limit compensation to what the owner paid for it (Ethnography,

Astana, 9/2015). An attorney echoed them, noting that there had been a meeting

between the akimat and the General Procuror in which the latter had told them “not

to drain the state budget,” (Attorney Interview 23, Astana, 10/2015). This further

highlights why I later heard a judge comment that it was “useless” to argue the LSP’s

constitutionality before higher courts (Ethnography, 11/2015): both courts and local

governments knew that they were to use the LSP because it had been created on

the President’s orders to curb land “speculation,” or what I have termed “insider

trading.”

That the law constituted an order from above in turn provides a compelling ex-

planation for why state o�cials have continued to draw on it, despite its questionable

legality and the widespread discord it has sparked. Formally, what matters is the le-

gal hierarchy that places the Constitution above the Land Code, and the Land Code

above the LSP; informally, the fact that the dictator had the law created to address

a specific form of rent-seeking sends a clear message that it reflects his updated pref-

erences. Breaking that law and engaging in the specific machinations it was designed

to address means purposefully ignoring those preferences, and is thus risky.

Indeed, akims have faced charges for land speculation since the introduction of the

LSP. The exact number of those charged remains unclear; one report from the General

Procuracy simply notes that “the procuracy opend several criminal cases” connected

with the “falsfication of evidence” in eminent domain seizures (po predstavitel’stvu

interesov gosudarstva v sudah General’noj prokuratury, Nov 2013). In Almatinskij

Oblast’, an inspection found that more than 2 billion tenge (around $9.5 million)

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had been “baselessly” paid from the state budget in 2012-2013 for land seized in

connection with the “Western Europe - Western China” Highway, and stated that

the “guilty state o�cials” from three districts had been criminally charged (Zemli

pod dorogu “Zapadnaja Evropa - Zapadnyj Kitaj” vykupali po zavyshennym cenam,

May 2014). Similarly, the audit on court cases related to the seizures of land under

eminent domain mentioned that 10 criminal cases were opened in connection with

land speculation. While, as the first example highlights, the measures adopted in the

Law on State Property have failed to completely eliminate the “machinations” and

“speculation” they were designed to address, they have led to a situation in which

state o�cials face a real threat of criminal charges if they o�er at or above market

price for seized land.

Figure 3.1: High-Rise Buildings in Astana

Also notable, however, is that there

is little o�cial concern for situations in-

volving the use of eminent domain for

commercial needs or resale. According

to public statements by the agency, an

inspection found no support for claims

that land had been seized for commercial

purposes rather than for state needs (in

other words, illegally) (Bajmanov, Jan.

2017). However, this is blatantly untrue;

it is not di�cult to find clear-cut exam-

ples of seizure for commercial purposes in Astana. For example, the highrises in

the neighborhood pictured here were built on land seized for state needs; I learned

106

this from speaking to someone whose property had been taken for their construc-

tion (Landholder Interview 9, Astana, 12/2015). In another neighborhood, neighbors

claimed that one household with ties to the akimat was able to give up only half of

their land and move their house to the back of the property, accommodating the road

expansion. Other residents asked to do the same, but their requests were refused.

Instead, the “leftover” land is being developed (Ethnography, Astana, 10/2015). Ad-

ditional accounts echoed these two variants. When I asked a woman in Astana’s “new

city” how she knew that most of the land seized in her neighborhood would go to

the construction of highrise apartments, she responded that, “They themselves told

us, it’ll be a private kindergarten,” (Ethnography, Astana, 9/2015).39 Indeed, even

the report from the General Procuracy that I obtained noted that sometimes these

situations occur; tellingly, however, it did not o�er any suggestions for addressing

them. Thus, while the LSP was a specific communication developed to react to a

particular type of rent-seeking by local o�cials, it purposefully ignored other types of

schemes that benefited those o�cials. In other words, it was designed to communicate

the dictator’s resolve in regulating a particular type of informal activity, but other

“schemes” – because they do not a�ect the state budget – are spared investigation or

prosecution.

In sum, the Law on State Property was a reactionary measure intended to crack

down on a particular kind of rent-seeking, and this explains why the provision contin-

ues to be used despite its unconstitutionality. The law functions not as an impartial

rule or standard, but rather as a clear pronoucement by the central regime about

which informal activities it will not tolerate among subordinates. In contrast, no

39“Oni sami govorjat – chastnyj sadik.”

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legislation has been introduced that purposefully targets the “middleman” scenario

discussed in the previous paragraph, and despite evidence that the regime is aware

this type of rent-seeking is widespread, there has been no move to address it. Law

even helps facilitate it, because the LSP creates legal ambiguity which provides local

o�cials with a pre-existing, legal justification for o�ering very low compensation on

private property they seize – which they can then turn around and resell for profit.

This example illustrates that in authoritarian regimes like Kazakhstan, law can only

be understood in terms of its informal context. However, that does not mean that

we should not take it into account when studying these regimes. By shifting the risk

associated with insider trading or “speculation,” but ignoring “middleman” scenarios,

the LSP shapes state o�cials’ behavior and expectations – as well as who bears the

cost for their rent-seeking. Here, that “who” happens to be the many households who

present a tempting target for state o�cials seeking to turn their formal and informal

authority into profit.

3.6 Conclusions

Law can serve multiple functions in authoritarian regimes, ranging from from

straightforward regulation to window-dressing. In politically-sensitive areas, law of-

ten serves as a form of communication regarding policy from the dictator to his

subordinates at the local level. The sunk costs involved in developing and dissem-

inating a law throughout the state organization demonstrates the central regime’s

commitment to pursuing a particular approach to an issue, and by drawing a line

about what behavior is or is not acceptable, heightens the risk associated with those

that violate the new directive; that risk comes from acting in a way that contradicts

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the dictator’s preferences. This communication is targeted at the lower levels of the

state organization – those who, unlike members of the dictator’s inner circle, must

operate within the guidelines of law or risk censure. In the case of eminent domain,

the president used the introduction of the Law on State Property to emphasize that

a particular form of rent-seeking by local o�cials would no longer be tolerated, and

the tenets of that law were designed to limit the disbursement of state funds.

At the same time, however, how the LSP interacts with existing legislation has

provided room for a range of legally-permissible means for addressing disputes over

eminent domain. This inherent flexibility – enabled by Kazakhstan’s particular con-

figuration of legal institutions – provides an ‘out’ for those with high-level connections

to the regime to receive a very di�erent outcome than most citizens. At the same

time, those o�cials who blatantly violated even the legal minimum were rebuked.

Together, these factors allow the regime to proclaim its commitment to a preexisting

legal standard while preserving its commitment to an unequal legal playing field.

Rather than window-dressing, then, law provides a ‘menu’ of guidelines, within

which state o�cials must operate. If they stray from those bounds, they face censure

by civil courts and possibly, criminal prosecution. However, the limits themselves are

informed not only by the written provisions of law, but also by top-down pressure to

apply them in specific ways in the majority of cases. The combination of this pressure

with the specific measures featured in legislations shapes where risk is highest for state

o�cials, and in doing so, increases the appeal of some kinds of informal activity – in

this example, the seizure of private property for commercial purposes – over others.

Thus, while we cannot say that law matters as an impartial standard, it shapes

behavior by shifting the expectations of both state actors and citizens. The degree

109

to which it does so depends in large part on its enforcement by courts, a topic that I

turn to in the next chapter.

110

Chapter 4: Courts & the Regime

4.1 Introduction

Like authoritarian elections, authoritarian courts rarely reflect widespread expec-

tations of what courts should be and do. Rather than independent, impartial tribunals

for resolving legal disputes, they are often highly dependent and subject to political

interference; instead of purveying justice, they uphold the dictator’s wishes. Indeed,

the phrase “rule by law” has even been coined to describe how dictators use their

control over courts to support their rule (The struggle, n.d.). As Pereira (2005, p.7)

noted in his study of Chile, Brazil, and Argentina, each regime “struggled with the

legality of its repression and attempted to ‘frame’ at least part of that repression with

a sca�olding of laws and legal procedures.” While pressure from investors can lead

to commercial courts that better embody ideals of impartiality and fairness (Wang,

2015; Silverstein, 2008), we nonetheless see many authoritarian regimes that uphold

the stereotype of poor rule of law and weak, dependent courts (Transparency Inter-

national, 2014; Transformation Index , 2016; Heritage Foundation, 2016). From the

post-Soviet region to much of the Global South, authoritarian courts that are free

from political influence and enforce law fairly and transparently remain far more an

exception than the rule.

111

This is particularly true if we turn our attention specifically to civil courts and

their role in adjudicating economic disputes between citizens and the state – in other

words, to the topic of this dissertation. Existing literature often conflates courts’

approach to these disputes, especially those concerning property rights, with regime

type. In particular, Olson (1993, p.572) argues that the same conditions needed for

secure, state-backed property rights are those needed for democracy:

...a democracy is not viable if individuals, including the leading rivals ofthe administration in power, lack the rights to free speech and to securityfor their property and contracts or if the rule of law is not followed evenwhen it calls for the current administration to leave o�ce. Thus the samecourt system, independent judiciary, and respect for law and individualrights that are needed for a lasting democracy are also required for securityof property and contract rights.

His explanation makes intuitive sense, and has been used to equate democracy with

an e�ective judiciary and secure property rights, especially in conflicts with the state.

This presupposes that courts’ primary function in authoritarian regimes is to aid

in expropriation, and o�ers little room for nuance. Indeed, it relegates them to a

superfluous role: why would a powerful authoritarian regime invest substantial time

and resources to decide conflicts with ordinary citizens in civil court?

In this chapter, I argue that channeling conflicts between citizens and local of-

ficials through civil courts helps the dictator reconcile two competing imperatives

in authoritarian governance. While dictators tacitly allow subordinates to use their

positions for personal gain, they must also ensure that doing so does not negatively

impact their ability to stay in control. It follows that certain kinds of corruption

will be less acceptable than others. For example, prolific theft of resources from the

central budget directly threatens the autocrat’s ability to target patronage dispersal;

seizing poor citizens’ property for lucrative developments does not. In other words,

112

the dictator must manage how local o�cials use their positions for self-enrichment;

ideally, this means dispersing the costs of their rent-seeking outside the ruling elite,

while also avoiding extremes that could generate regime-destabilizing mass protests.

Civil courts are well-suited for this management role, because their hierarchical or-

ganization and open appeals process make them a self-monitoring system directly

under the executive’s control – at least when they depend directly on the central

government for appointment, salaries, and other resources, as they do in Kazakhstan.

As the previous chapter outlined, the dictator uses law to communicate what con-

stitutes allowable behavior for these o�cials. The courts serve as a ‘fire alarm’ that

alerts the central regime to local o�cials that stray too far from these ‘acceptable,’

law-communicated bounds – and to citizens’ responses to their predatory behavior.

In addition, when o�cials’ activities create shared grievances, funneling the resulting

disputes through civil courts helps disperse the potential protesters. Ironically, the

same traits that make courts useful tools for the regime also encourage citizens to

turn to them — a topic I explore in-depth in the chapter that follows.

4.2 Literature Review

In most dictatorships, including Kazakhstan, the autocrat’s rule generally rests on

a vertically-organized patronage network, and does not stem from any clear, procedu-

ral means of selection, such as fair elections or institutionalized party rules. Especially

when electoral accountability is absent, state o�cials are thought to have little reason

to avoid blatantly violating citizens’ legal rights. Instead, they exist to serve their pa-

trons, with the dictator operating at the top of this pyramidal system (Hale, 2015) or

“power vertical” (Gelman, 2011). Indeed, the executive and other key o�cials have

113

a vested interest in making the application of law conditional on personal loyalty;

their ability to do so underlies much of their power as patrons. If law were enforced

impartially, then it would erase the privileges associated with joining their networks,

thus undercutting the entire system of rule. This also explains why dictators often

purposefully weaken institutions in to prevent alternative power centers, including

independent courts, from emerging and constraining their actions (Migdal, 1988).

Preferential treatment for those who belong to the “power vertical” also translates

into expanded opportunities for rent-seeking, making corruption a common bedfellow

with weak judiciaries. In other words, there is good reason to concur with Olson

(1993)’s point that how institutions of justice function under authoritarianism is in-

timately tied to the way in which such regimes construct their rule in the first place.

A quick glance at the correlation between evaluations of the justice provision and

regime type a�rms this a�nity between authoritarianism, courts, and corruption.40

In the graphs below, I use data from the 2016 Bertelsmann-Stiftung Transformation

(BTI) Index for countries’ democracy scores, judicial independence, and prosecution

for abuse of o�ce. Like many other, similar indexes, it relies on regional experts

to rank countries on certain criteria. However, it also has the added value of fully

publishing its questionnaire and methodology, and requires blind checks of experts’

evaluations (Transformation Index , 2016); this helps ensure objectivity. While a

few non-democracies, such as Singapore and Jordan, received high marks for their

judicial independence and low corruption, the vast majority did not. Specifically, the

correlation between judicial independence and level of democracy is, at .93, extremely

40Corruption is defined as the “active or passive misuse of the powers of Public o�cials (appointedor elected) for private financial or other benefits” (OECD, 2017); therefore, I use the variable for“prosecutions for abuse of o�ce.”

114

high. The correlation between prosecution for abuse of o�ce (with abuse of o�ce

referring to this dissertation’s working definition of corruption) and democracy is also

quite strong (.83). Kazakhstan hardly constitutes an exception to this rule: it received

a score of just 3/10 for both. Transparency International’s Corruption Perceptions

Index, which surveys a nationally-representative sample of citizens in each country

evaluated, echoes this appraisal. Nearly two-thirds of those surveyed in 2014 ranked

courts as “corrupt” or “highly corrupt,” second only to the police (Transparency

International, 2014). Yet, in evaluations of civil justice, Kazakhstan scores squarely

in the middle of the pack worldwide, and better than many democracies (World

Justice Project, 2016); it also does similarly well in evaluations of the protection of

private property rights (Transformation Index , 2016). In short, we see unexpected

incongruity between Kazakhstani courts’ provision of civil justice and evaluations of

their dependence and corruption.

How can we reconcile these conflicting characterizations? In other words, how can

civil courts both perform reasonably well when they are also corrupt and dependent

on the executive? Hendley (2012, p.523) o�ers insight into this question in Russia,

highlighting that, “The instrumentalism that politicized cases evidence exists in un-

easy harmony with the vast majority of mundane cases that courts resolve in accord

with the written law.” In other words, their usual performance in most cases may be

adequate, but knowledge that politically-sensitive cases are resolved di�erently drives

evaluations that emphasize courts’ corruption. Similarly, Frye (2017, p.27) finds that

Russia exhibits a “legal dualism” which stems from a “political logic common in

autocracies that seeks to balance economic e�ciency with retaining the ability to

reward supporters and punish political opponents.” However, this leaves a ‘gray area’

115

Figure 4.1: BTI Rankings

for analysis: how do courts handle disputes between ordinary citizens and the state?

These disputes do not necessarily involve political opponents, but remain political

for the simple fact that they involve the state; how courts handle such cases mat-

ters enormously for understanding how courts function, especially regarding property

rights security. Here we again return to Olson (1993)’s argument regarding regime

type; another strain of scholarship focuses less-explicitly on this relationship between

democracy and property rights, but still emphasizes checks on executive power (North

& Weingast, 1989). In both approaches, the regime is collapsed into two dimensions:

the dictator, and everyone else. This e�ectively assumes that the dictator is the only

part of the state which comes into conflict with citizens or that must be constrained.

116

However, as Markus (2012) and Gans-Morse (2015) demonstrate, that exclusive em-

phasis on the central regime is misplaced because local state o�cials usually pose the

greatest threat to citizens’ property rights.

As outlined in the last chapter, it is not in the dictator’s interest to eliminate

that corruption by subordinates. Allowing them to use their formal appointments

and authority to engage in rent-seeking helps cement their loyalty to the regime;

this practice helps explain the near-perfect correlation between prosecution for the

abuse of public o�ce and authoritarianism in the BTI data (Transformation Index ,

2016). However, certain types of corruption do pose real problems for the regime.

The diversion of state funds into local o�cials’ own pockets challenges the dictator’s

ability to use public goods provision to ensure minimal public support and undermines

his monopoly on control over state resources. In addition, if state o�cials become too

predatory, then the threat of overthrow from below increases. Though elites pose the

greatest threat to dictators, the “Color Revolutions” in Eastern Europe and the “Arab

Spring” in the Middle East and North Africa emphasized that discontented masses can

also bring a swift end to their rule. Dictators therefore seek to maintain an image of

invincibility. Doing so discourages either elites or citizens from attempting rebellion;

as Magaloni & Wallace (2008) note, “...public sentiment can turn against apparently

unshakable dictatorships with amazing velocity, as small oppositions cascade into

overwhelming majorities. The mechanism is given by a tipping phenomenon in which

the participation in acts of public protests by a small group can cascade, triggering a

bandwagon of dissent.” Excessive predation by local o�cials can trigger small-scale

protests which undermine the regime’s image of absolute control, and in doing so,

increase the potential for triggering widespread rebellion.

117

In other words, dictators face a two-sided problem: they need to manage both

subordinates’ rent-seeking, and citizens’ responses to it. What tools can the dictator

use to address this issue? Some appear to use local elections. In Jordan, Lust (2009)

finds that “competitive clientelism” ensures more popular local leaders are granted

access to state power and resources, e�ectively turning parliamentary elections into “a

mechanism for the distribution of patronage that reduces demands for change”; MPs

remain loyal to the regime to ensure that access continues, and distribute patronage or

act as “service deputies” to constituents to shore up their popularity in electoral races.

Similarly, Blaydes (2010) argues that in Egypt, running for parliament was popular

for the access and immunity that a seat provided. However, in Kazakhstan (and

many other autocracies), regional and local leaders are not elected, but appointed.

President Nazarbayev selects regional akims (akin to state governors in the U.S.),

who in turn select district and city akims (similar to mayors). This chain of selection

limits the creates the quintessential principal-agent problem that leaders of any large

organization face, and contributes to the governance issues discussed above.

Elsewhere, scholars argue that parties are used to coopt and control potentially

problematic individuals. Svolik (2012, p.163) characterizes authoritarian parties as

a “sunk political investment” in the regime: by “exploit[ing] members’ opportunism

and career aspirations to create a stake in the perpetuation of the regime among

the most productive and ideologically agreeable segments of the population,” author-

itarian regimes with a party “can survive under less favorable circumstances than

dictatorships without a party.” In addition, authoritarian political parties also fulfill

‘bargaining’ and ‘mobilizing’ functions for the dictator, using the organization to co-

opt potential opposition members (as well as their policies) and to provide a reservoir

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of mass support in crucial periods (Magaloni & Kricheli, 2010). These particular

functions may well apply in Kazakhstan, where President Nazarbayev has spent the

past decade-plus actively developing the ruling Nur Otan (Light of the Fatherland)

party (Bader, 2011), and status within the party could presumably be used to help

manage corruption by providing a way to discipline those o�cials who join it. How-

ever, that assumes the president knows about his subordinates’ corrupt activities (a

problematic assumption, especially in an authoritarian context), and it still does not

help him deal with any mass discontent their actions trigger. Thus, though the ruling

party likely plays an important role in Kazakhstan’s governance, it does not solve

the twin problems of managing local o�cials’ corruption and citizens’ reactions to it.

What other tools can the dictator utilize?

4.3 Theory

I argue that civil courts help the dictator manage these countervailing concerns.

Specifically, they: 1) monitor local o�cials’ corruption, and 2) deescalate citizens’

responses to it. Judges first and foremost act as “fire alarms” that collect crucial

information about local o�cials’ rent-seeking activities. By gathering and vetting

this information, they help the dictator solve the principal-agent problems inherent in

delegating local-level governance. Those employed in government have little incentive

to report abuses of power, especially when they implicate the akim, because doing so

would mean taking the highly risky step of testifying against the person upon whom

their appointment depends. In contrast, a�ected citizens seeking redress constitute a

rich and easier-to-exploit source of information on o�cials’ actions than state o�cials

themselves. Courts’ close association with the central regime makes them one of

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the most obvious, lowest-risk channels for appealing to a higher authority that is

outside the akim’s control. At the same time, courts help di�use these citizens’ ability

to respond collectively to state o�cials’ corrupt, predatory, or otherwise unpopular

actions. Local o�cials’ actions create shared grievances, that can then become a

catelyst for protests. Repressing numerous, local-level protests is costly, both in

terms of manpower and for the regime’s legitimacy, and these mass actions have the

(unpredictable) potential to snowball into more widespread movements. Without the

ability for class action suits, civil courts force those with grievances against the local

government to address them on an individual basis, and by doing so, make it more

di�cult to coordinate collectively. In other words, courts also act as mechanisms of

dispersion. However, for them to fulfill either of the two functions outlined above,

citizens must actively participate in litigation. Thus, it is in the regime’s interest to

have courts enforce the minimal legal standards outlined in Chapter 3, and provide

improved outcomes for some.

4.3.1 Monitoring Corruption

The first of these two functions – monitoring – addresses two problems inherent

in authoritarian governance: information scarcity and assymmetry. The latter issue

arises when a principal delegates authority to agents (here, local executives) (Miller,

2008), while the former refers to what Wintrobe (1998) has termed the “Dictator’s

Dilemma.” It is di�cult for dictators to obtain accurate information because they rely

on coercion to stay in power. When facing the threat of repression, individuals only

tell the dictator what he wants to hear; knowing this, the dictator becomes even more

paranoid and engages in still more repression, which only exacerbates the problem

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further. The problem arguably worsens when it comes to a politically-sensitive issue

like corruption, because those most aware of and able to report it are also those most

likely to become embroiled in any resulting backlash. For example, even if a regional

akim learns that one of the local akims he appointed is engaged in an illegal rent-

seeking scheme, reporting it to the dictator means he may be censured for failure to

keep his subordinate in line. As a result, the dictator has trouble learning who is

corrupt, how, and to what extent – which in turn makes it di�cult to manage that

corruption.

This information scarcity is exacerbated by the information asymmetry that arises

from dictators’ delegation of authority. Dictators, like all leaders of large organiza-

tions, rely on subordinates to handle the nitty-gritty details of lower-level manage-

ment. In regimes without regional or local elections, these executives (in Kazakhstan,

akims) are appointed. Though they depend on the central regime for their authority,

their preferences are di�erent and sometimes conflicting; because the dictator lacks

complete information about their activities, they can use this mismatch to pursue

their own goals instead. Logistics exacerbate this issue, especially at the local level:

even in a relatively small (administratively, at least) country like Kazakhstan, there

are 16 regional executives, and local executives number in the hundreds. In addition,

though local akims are ultimately beholden to the dictator, they must also satisfy

their direct patrons – the regional akims, or governors, who appoint them. By virtue

of proximity, these regional o�cials tend to have better information on local o�cials’

activities than the central regime, and they may leverage that knowledge to ensure

local o�cials satisfy their preferences first; for example, Luong (2004) found that in

Kazakhstan’s regions, regional taxes were often prioritized over those destined for

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the center. For the dictator, the challenge thus lies in devising tools to monitor and

motivate local o�cials to act in ways that do not contradict his interests. Again, this

does not involve eliminating akim’s use of their o�ce for private gain. However, it

does mean finding ways to address information scarcity and asymmetry.

In other words, the dictator needs information about how local akims engage in

corruption. There are di�erent ways they can use their local executive authority

selfishly, and the dictator is not indi�erent among them. Certain types of corrup-

tion negatively impact the dictator’s ability to satisfy his overriding goal: to stay in

power. These include tax fraud (e.g., underreporting or other fraud related to rev-

enues collected), the diversion of central funds earmarked for other purposes (such

as public works and projects intended to shore up the leader’s popular support), and

over-predation that hollows out legitimacy and generates resistance to the state. I

focus on the latter two here. In Kazakhstan, the central regime provides local gov-

ernments with funds to compensate citizens for land seized for public works projects,

such as infrastructure development or schools. Land seizures under eminent domain

are, according to multiple sources, a key way in which akims generate rents for them-

selves (Attorney Interviews 1-2, Astana, 9-10/2014; Attorney Interview 14, Shymkent,

4/2015; Attorney Interview 23, Astana, 10/2015). In other words, they are often

laced with corruption: “It’s pure government raiding... They do everything in deep

secrecy (Ibid).41 As one economist noted wryly, “There are non-economic questions

here. Property rights are connected with politics...when I was a student, they taught

41“Jeto javljaetsja chisto gosudarstvennoe rejderstvo... Gluboko sekretno vsjo delajut.”

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me it was forbidden to speak about [land] ownership” (Expert Interview 5, Astana,

10/2014).42

One way in which akims use their authority over land rights to generate rents

is to artificially inflate the price of the land destined for state seizure. In these

schemes, the akim works with property owners (or buys the land in advance, in a

variation on ‘inside trading’) and appraisers to radically increase the land’s appraised

value. Everyone involved is compensated handsomely and leaves happy; thus, there

aren’t any disgruntled parties to draw attention to the akim’s actions. One attor-

ney described this exact situation in Turkistan (South Kazakhstan): according to his

account, everyone but one man agreed to give the akim 10% of the inflated compen-

sation; the administration then refused to seize his land at all, even though it had

become inaccessible (and hence, unusable) due to the highway construction that had

necessitated the seizure (Attorney Interview 14, Shymkent, 4/2015). However, as the

previous chapter detailed, when this kind of ‘land speculation’ threatened major in-

frastructure development plans, President Nazarbayev ordered the creation of a law

specifically designed to clamp down on it. In the wake of the law’s introduction,

the risk associated with this type of rent-seeking increased dramatically. Qualitative

reports suggest that this triggered a major shift in land-related corruption, from the

speculation described above to a ‘middleman’-type scheme. In this approach, akimats

seize land from citizens for very low (but technically legal) levels of compensation,

and resell it to developers at a large markup. As long as the project specified by the

central government is completed, then in practice, the local akim appears to have a

high degree of latitude to resell ‘left-over’ land not used in the public works project

42“Est’ voprosy ne jekonomicheskie zdes’. Soobstvennosti svjazanny s politikoj; kogdauchilsja...mne uchili, chto nel’zja o sobstvennosti govorit’.”

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for profitable developments (Ibid; Attorney Interview 1, Astana, 9/2014; Landholder

Interview 4, Astana, 9/2015). Because this form of rent-seeking (a) targets ordinary

citizens and (b) does not drain central funds, it generally does not conflict with the

dictator’s preferences.

Consequently, the regime tolerates ‘middleman’ rent-seeking – as long as it does

not generate visible discontent among citizens. After all, though dictators are most

likely to fall to regime insiders (Svolik, 2012), it does not follow that they cease

worrying about bottom-up regime change. Even small protests can snowball rapidly,

and constantly using force to repress them is costly (Magaloni, 2008) – not only in

terms of manpower, but also for the dictator’s popular support and legitimacy. Hence,

the regime’s emphasis on setting the legal ‘floor’ outlined in Chapter 3; minimal

compensation helps forestall powerful claims of outright ’theft’ by the state. Claims

that, “They didn’t pay me enough for my land,” are arguably far less likely to resonate

widely than, “They took my land and didn’t compensate me at all.” There is therefore

a strong incentive to ensure akims’ behavior doesn’t become too predatory. In other

words, the dictator should act much like one of Olson (1993)’s “stationary bandits,”

limiting expropriation in the short term to maximize it over the long term.

Local o�cials themselves are a di�erent story, however. President Nazarbayev,

like many authoritarian rulers, regularly shu�es regional leaders to keep them from

developing independent bases of power, and they have often engaged in wholesale

‘cadre change’ upon appointment, selecting new local akims and other key o�cials

when they take o�ce (Siegel, 2016). While it has proven e�ective in ensuring loyalty to

the central government, this practice truncates akims’ time horizons in any particular

location, and motivates them to become ‘roving bandits’ who extract as much as they

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can while there (Olson, 1993). Thus, the dictator needs to monitor them to ensure

rent-seeking stays within acceptable bounds.

However, akims have no incentive to report on their own corrupt activities, and

because most other local state o�cials are their appointees, neither do they. In

contrast, judges are appointed by the dictator and embedded in distinct patron-client

networks; their salaries, career paths, and opportunities depend on the central regime.

This makes them an ideal mechanism for monitoring local o�cials’ activites. Filing a

case highlights o�cial actions which would otherwise remain mostly invisible to the

dictator. Participation in civil litigation is voluntary, but costly; this, coupled with

judges’ evaluations of claims and evidence, helps ensure that cases which are hyperbole

or speculation are dismissed or concluded in o�cials’ favor. The information that the

dictator ultimately receives is thus vetted in a way that other sources, especially letters

and petitions directly from citizens – a key means by which the Soviet regime gathered

information on popular opinion (Dimitrov, 2014) and a practice which appears to

continue today – do not. Citizens also recognize that both law (which is uniform in

a centralized state like Kazakhstan) and courts enjoy the dictator’s support, which

lowers the risk associated with litigation and makes citizens more willing to turn to

them in disputes with local o�cials. By simultaneously collecting and vetting this

information on citizen-state disputes, civil courts act as ‘fire alarms’ that alert the

dictator to potentially problematic akims or locales. Together, these factors mean

that civil courts collect “good” information on local o�cials’ rent-seeking activities.

Counterintuitively, citizen-state cases where citizens are defendents still serve this

same purpose. In eminent domain cases, this type of litigation reflects a failure on

the part of state o�cials to settle with landholders. If the local executive cannot

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obtain an agreement on compensation from a landholder whose property is seized

for eminent domain purposes, then he files a civil case against them. If he fails to

do so, he gives that individual a strong basis for litigation against him; citizens who

file this kind of case “raise the alarm” as discussed above. O�cials therefore try

to avoid cases like these, and seek an agreement from landholders instead. When

unsuccessful, they proactively file a case to force a resolution in terms acceptable

to and certified by the civil court (and by extension, the central regime); this move

is a requirement set by the central regime to enhance monitoring. Although this

results in many cases where akimat is the plainti�, citizens can still refuse to attend

the hearing (and by default, receive the compensation they were initially o�ered).

Participation is voluntary, meaning these cases still provide the central regime with

valuable information about the local o�cials involved. That said, most citizens choose

to attend; indeed, simply refusing to agree to the akimat’s terms can often be a

deliberate strategy. Citizens targeted for seizure know that if they refuse to sign an

agreement with the local government, a case will be filed against them – but they

won’t have to pay the court’s filing fees. Hence, it is rational for even those who would

file a suit to simply wait and allow the akimat to initiate it. Either way, information

from these cases helps dictator monitor his “subclients.”43

Kazakhstan’s open appeals system enhances the quality of that information. All

those who are party to a district court case have the right to initiate an appeal

(Sud, 2017); consequently, local o�cials cannot formally block citizens from seeking

a decision from a higher court. Individuals who are particularly incensed will be

more likely to appeal, because they will be more willing to bear the costs involved

43Clients of his direct clients; here, those appointed by regional akims.

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with additional litigation. In addition, if citizens feel like the district judge has been

‘captured’ by the local government, higher courts – which are further removed from

those authorities – provide an opportunity to appeal to judges further removed from

that district or region. In addition to raising an alarm, appeals therefore provide

a “thermometer reading” of citizen anger concerning o�cials’ actions; few people

are willing to shoulder the time and expense of additional litigation absent either

a strong legal case or deep sense of outrage. This, combined with the number and

type of citizen-state civil cases at the district level, provides the central regime with a

measure of which o�cials are more or less successful at maintaining control, stability,

and support in their districts.

In short, civil courts, like elections, help address dictators’ information problems.

Unlike authoritarian elections, however, courts o�er fine-grained information beyond

a simple measure of popularity or turnout capability. They provide detailed infor-

mation about local o�cials’ rent-seeking activities, enforce a legal ‘floor’ on that

predatory behavior, and evaluate citizens’ responses; their ability to do so is in large

part predicated on top-down pressure for local o�cials to use courts in disputes with

citizens. When applied to the example of eminent domain seizures, this yields two

groups of observable implications:

Implication 1: Across regions, we should see evidence that top-down policyencourages and/or enforces the use of civil litigation to settle citizen-statedisputes:

a. Local o�cials pursue litigation against citizens in consistently thesame manner and in the same types of cases;

b. If they fail to follow this pattern (where legal minimums of obtainingcitizen agreement or paying minimal compensation are violated) andare sued by citizens, they are censured by courts; and

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c. Court decisions reflect the application of the dictator’s latest commu-nication (such as a statute or executive order), rather than higher-level, more long-standing formal legislation.

Implication 2: We should see evidence that the central regime is collectingand responding to information from citizen-state civil disputes; in otherwords, there should be indications that monitoring is occuring and thatit has consequences. This includes:

a. Reports or other collections of information on citizen-state disputesfrom central state agencies (e.g., the presidential administration);

b. Administrative cases or other punitive actions taken toward localo�cials who engage in rent-seeking that either (a) violates legalminimums or (b) central regime preferences (e.g., not paying anycompensation at all or engaging in fraud related to centrally-fundedprojects);

c. Lack of any consequences for other types of rent-seeking – even whenthere is strong cause to believe that the central regime is aware it isoccurring.

Allowing akims to use public authority for personal gain in this controlled manner

links their personal fortunes with their loyalty to the central regime. Permitting a

certain degree of corruption to occur also gives the dictator an easy opportunity to

leverage criminal charges should that commitment ever come into question. Con-

veniently, there is usually no need to fake those accusations, and prosecution can

even help boost the autocrat’s popularity and claims to uphold the law. Civil courts,

through their monitoring activities, help detect or collect evidence on o�cials’ mis-

deeds. If true (and courts are not simply being used to ‘put on a show’), local o�cials

should thus be expected to actively discourage citizens from participating in litigation

against them – including in cases which they initiate. In other words:

Implication 3: We should expect to see informal pressure to abandoncivil litigation, such as harassment, vandalism, or other actions explicitlyundertaken to raise citizens’ actual or perceived costs of going to court.

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If these conditions hold, then there is strong evidence favoring the argument that

civil courts help monitor (and in doing so, help the central regime manage) local-level

corruption. Of course, even if all of the above observable implications exist, it is not

incontrovertible proof; however, such evidence is unlikely to be available in exactly

these regimes where the above argument holds true. After all, just as authoritarian

regimes claim to be democracies, as does Kazakhstan in its constitutional preamble

(Konstitutsiia Respubliki Kazakhstan, 2011), they also claim to uphold law and or-

der: on Constitution Day (which he created), President Nazarbayev congratulated

citizens on the holiday and “noted the strict adherence to the letter and spirit of

the constitution, which is the main source and guarantee of the country’s successful

development” (quoted in Nur.kz (2016)). In other words, we are unlikely to ever find

incontrovertible proof – where the central regime openly or directly admits courts are

used for monitoring rather than providing justice – because that would undermine its

dominant narrative that it values rule of law. Nonetheless, evidence for the observable

implications noted here constitutes strong support for this theory.

4.3.2 Dispersing Dissent

Even though corruption which targets ordinary citizens is ‘less-costly’ for the

dictator than other forms of rent-seeking, it still generates negative externalities. I

argue that in addition to providing information about local o�cials’ activities, civil

courts help the central regime manage costs associated with relying on corruption to

rule. Specifically, autocrats face potential collective action when local o�cials’ rent-

seeking targets many citizens; this risk is heightened when, as in the communities

featured in this study, they are embedded in the same, closely-knit social network

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(Snow et al., 1980). For example, local o�cials often seize land in large swaths to pave

the way for large-scale developments or public works projects. This simultaneously

impacts neighborhoods or communities that tend to be very interconnected and have

a high degree of interpersonal trust, which lowers the barriers to organizing protests

or other collective action. While a consolidated, stable authoritarian regime like

Kazakhstan is very capable of forcibly repressing any such public outbursts of dissent,

the frequent use of outright coercion can be costly – both practically, and for the

regime’s popular support and legitimacy. Funneling these disputes through a lengthy

legal process helps reduce the threat of collective action: as cases drag on, people

predictably drop out, and coordination becomes far more di�cult.

In other words, courts disperse the potential for collective action in response to

shared grievances, such as those created by large-scale land seizure. When coupled

with the high levels of trust and communication present in a�ected communities,

that mutual sense of outrage provides a powerful impetus for protest. However,

channeling these individuals into courts makes it more di�cult for them to organize

collectively. While their cases are active, they will be hesitant to engage in a high-

risk strategy like protest; after all, in a dictatorship like Kazakhstan, that carries

a real risk of detention. As long as there is a chance that the courts will address

their concerns in a less-costly manner, most will focus their e�orts on litigation.

Crucially, without the possibility for a class-action lawsuit, this also means that each

community member must do so separately – e�ectively “individualizing” their shared

grievance. As a result, it is far more di�cult for those subjected to seizure to organize

a protest. The fact that, in a civil law system like Kazakhstan’s, each ruling is

decided separately further complicates matters; because one person’s failure to receive

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higher compensation does not impact the chances of his or her neighbor, each person

retains hope that they might receive a favorable outcome in their case. This ‘divide

and disperse’ strategy reduces the potential for protests, and allows the regime to

economize on coercion – all while maintaining that it upholds justice and the rule of

law.

Aspects of the judicial process itself further assist courts’ ability to help the regime

‘divide and disperse.’ Each case moves forward at a di�erent time and pace, and in

addition to deciding whether or not to go to court, there are multiple instances of

appeal. Individuals therefore face key decision-making junctures independently. As

individuals move through this process, some predictably ‘drop out,’ either from ex-

haustion and frustration, or because they are satisfied with their result. Consequently,

group coordination (which is already di�cult under the best of conditions) becomes

even more so. Together, these factors dissipate the potential for collective action at

a lower cost than outright repression – while at the same time, helping the dictator

solve his information problems.

If courts do serve this “dispersion” function, then we should expect to see the

following:

Implication 4: If courts are used to disperse citizens and prevent themfrom organizing protests, there should be a real threat of protests followingland seizures. This evidence can take multiple forms, including:

a. Citizens will cite protest as one of their preferred strategies whenasked how they would address a dispute with the akimat over land.

b. Citizens will express a willingness to protest or create plans to do soonce their land is seized.

c. Citizens engage in protests against land seizure.d. When protests do occur, the regime treats them as threats (i.e., re-

presses them).

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Implication 5: As groups of citizens impacted by the same land seizuremove through the process of litigation, they should ‘drop o�’ and disperse.This entails:

a. A decrease in expressed interest in or plans to protest, either amonggroups or by individuals, when litigation begins or over time.

b. A decrease in the number of individuals who participate or attemptto participate in protests over the course of litigation.

4.3.3 Participation – for the Regime

Both the monitoring and dispersion functions require widespread, voluntary par-

ticipation by citizens. For courts to provide good information, cases must reflect a

real desire of citizens to seek recompense for their treatment by local government; if

citizens eschew courts, they also cease to be e�ective means of dealing with protest

potential. Moreover, accurate information and e�ective protest dispersion require

courts to be the ‘clearinghouse’ for central regime attempts to deal with state-society

conflict at the local level. If they are not – for example, if multiple state organizations

handle the same kinds of disputes – then the information the regime receives will be

far noisier. Addressing these issues thus encompasses two related challenges: first,

citizens must have some motivation to turn to courts; and second, they must regularly

choose courts over other available strategies. The former does not necessarily mean

that citizens need to trust courts; they simply need to believe that they have a chance

to benefit from using them, and that this benefit potentially exceeds costs of doing so.

This provides the regime with a powerful motivation to have courts rule in citizens’

favor in some cases, and to enforce some minimal rights. Otherwise, citizens would

have little reason to ever invest the time or resources to go to court; they would bear

fewer costs by simply accepting the initial terms they were o�ered by the akim.

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This does not mean that going to court has to be citizens’ first strategy for resolv-

ing a dispute; it simply needs to be one of the primary strategies. After all, even in

democratic regimes, litigation is rarely the first strategy anyone attempts to settle a

dispute (Genn & Beinart, 1999), and there is no reason to expect di�erent conditions

in their authoritarian counterparts. Instead, what is required is that citizens should

have some willingness to use courts; when they attempt to appeal to any other gov-

ernment o�cials and agencies, they can then be redirected into the judicial system.

This diversion into courts e�ectively turns them into a kind of o�cial clearinghouse

for information about citizen-state disputes. It also helps the central regime bypass

local informal networks; whereas judges are centrally-appointed, prosecutors, finan-

cial police, and other local branches of central agencies tend to be local and thus,

more likely to have interests entangled with those of the local executive. Courts’

proximity to the executive heightens citizens’ expectations that higher courts will be

more sympathetic because they are further removed from local patronage networks.

However, this also ties their rulings more closely to the dictator, and can risk under-

cutting his legitimacy. Ironically, by relying on law and courts in this way, the central

regime risks heightening demand for greater legal impartiality and courts that better

constrain local o�cials.

Implication 6: When/if citizens try to approach agencies or o�cials otherthan civil courts to resolve conflicts with local o�cials, they should bediverted into the court system; in other words, we should see a kind of‘funnel’ e�ect.

In sum, civil courts are one key tool that the central regime uses to manage costs

and consequences of relying on a personalist, patronage-based system of rule. By

communicating the dictator’s preferences and setting parameters within which o�cials

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must justify their actions, law provides guidelines for what constitutes acceptable

behavior; courts monitor the degree to which those o�cials comply, gather crucial

information for the central regime, and help deal with the rent-seeking that threatens

to trigger collective action by citizens. This is not to claim that they uphold rule of law

in the standard understanding of the term: local o�cials are not treated impartially,

and courts remain, as expected by most literature, biased in their favor. However,

they do shape and enforce bounds on o�cials’ actions, thus providing a minimal,

or very ‘thin,’ rule of law. In other words, both the archetypical representations of

courts as fulfilling the dictator’s wishes and constraining their behavior hold purchase

if we examine the state as a hierarchical organization.

4.4 Analysis

In this section, I analyze whether the evidence matches the observable implica-

tions outline above. I address those associated with monitoring first, before turning

to dispersion and participation. In doing so, I draw on a range of qualitative and

quantitative data sources; to avoid confusion, I include their descriptions at the point

that they enter the analysis. For a more detailed overview of data collection methods,

please consult the Introduction.

4.4.1 Monitoring

Civil courts are ubiquitous in any regime, including Kazakhstan, and existed be-

fore the country’s independence from the Soviet Union. We therefore cannot attribute

their presence to the current regime’s desire to monitor local executives. Nonetheless,

as discussed in Chapter 1, Kazakhstani courts have undergone significant reforms,

beginning with the introduction of the 1995 (and current) constitution to bring them

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more tightly under central control (Smith, 1996). Whereas during the early nineties,

regional and local o�cials used courts’ dependence on local financing to shape the

administration of justice, today courts’ budgets come directly from the republican

budget. These centralizing changes have decreased regional and local o�cials’ ability

to influence judicial practice (Academic Interview 8, Almaty, 6/2015). This greater

centralization is a necessary condition for civil courts to e�ectively monitor state of-

ficials for the dictator. However, by itself, it does not demonstrate that courts are

used specifically in this way. What we should see in addition to strong central control

over courts is evidence of a clear top-down policy requiring local o�cials to turn to

civil courts in disputes with citizens. However, authoritarian regimes like Kazakhstan

rarely publicize state organizations’ inner workings. Instead, I looked for coordinated

action across regions and among o�cials that indicate they are acting in response to

orders from above. It would be similarly foolhardy to expect the central government

to admit that it cares about monitoring (but not eliminating) corruption; I therefore

focus on patterns of behavior from judges and local o�cials which are indicative of

my theoretical claims. In order to ensure their actions are not a regional peculiarity,

I look for that evidence in all three oblasts in this study (or information that comes

directly from the central government).

I find strong evidence that local o�cials’ propensity for addressing disputes over

eminent domain in court can be attributed to orders from above (Implication 1 ).

Across all three regions visited for this study, akimat representatives followed the

same procedures in disputes over eminent domain (Implication 1a.). Landholders in

Astana were notified in writing, and informed that if they did not agree to the com-

pensation they would need to address their concerns in court. Those who refused the

135

compensation or did not sign the agreement swiftly found themselves listed as defen-

dants in civil suits filed by the akimat. As one resident decried, “We’re landowners, we

received the rights to the land legally, and they’ve treated us like criminals!” (Ethnog-

raphy, Astana, 9/2015).44 Attorneys in Shymkent and Almaty confirmed these same

practices were the norm in their respective regions. Moreover, when landholders in all

three neighborhoods in Astana where I conducted interviews approached or wrote to

the akimat, presidential administration, or government agencies for assistance, they

were universally told that the appropriate avenue for their petition was civil court;

other agencies refused to address their concerns, and redirected them to the courts

(Ethnographic, 10-12/2015; Implication 6 ). This level of coordination across regions

and government organizations strongly indicates a central mandate that land disputes

be resolved through the legal system.

In addition, several of those landholders who had civil suits filed against them

by the akimat also encountered resistance from that very same administration when

they chose to pursue their cases (Implication 3 ). These actions make little sense if the

local government is filing suits of their own volition, but make sense if they are doing

so to satisfy central policy. For example, one family showed me the extremely large,

menacing-looking dog they had recently acquired to guard their home; groups of men

they claimed were from the akimat had come and tried to vandalize it to intimidate

them into leaving (Ethnography, Astana, 9/2015). Another family (in a di�erent

neighborhood) was also subjected to a range of attempts at intimidation. When

they lost their initial court case (but still had an appeal pending), private sudebnye

ispolniteli (private baili�s, licensed to carry out court orders) were dispatched to try

44“My zhe sobstvenniki, poluchili prava na zemlju pod zakonom, a prevratilis’ kak v pristupnikah..”

136

to physically force them out of their home. According to the family, they had been

hired by the akimat; the parents began having their children play out front to keep

watch and warn them should anyone approach who looked threatening (Landholder

Interview 13, Astana, 12/2015). The pregnant wife of that same couple was also

forcibly committed to the hospital. Ostensibly this was for her health, but she and

her husband insisted that she had been perfectly healthy, and that it was an attempt

to separate the two of them so that they would give up on their case (Ibid). Actions

such as these by the akimat in cases where they filed the civil suit strongly suggest

that they initiated litigation to comply with orders from above. Their resistance to

citizens’ active participation in these cases is exactly what we should expect if the

central regime is using them to monitor and possibly sanction local o�cials’ actions.

Three later incidents, however, provided the strongest proof that courts were being

used for monitoring, as well as for controlling land seizures’ drain on the central

budget. The first occurred during an appeals case in the Astana city court, which I

was attending with a family from one of the neighborhoods that I was following for

this study. That family had an attorney representing them who was also working

on the cases of others in the community. The attorney for the akimat recognized

her, and asked if she planned to accept many more of these cases. She said no; she

was done after these. The akimat’s attorney breathed a visible sigh of relief, nodded,

and said, “Good” (Ethnography, Astana, 11/2015). In that same hearing, the judge

refused the argument that compensation should be calculated in accordance with the

land’s market value at the time they were notified of the seizure. She stated that

judges were under orders from the Supreme Court to interpret cases according to

the Law on State Property, and that, “There’s nothing we can do” (Ethnography,

137

Astana, 11/2015).45 The second incident provides further evidence in this vein. It

involved two cases where land was seized with garages on it, and the owners failed to

receive compensation. In one, a representative of the local government had signed an

agreement with the landholder for compensation, but had failed to ever pay her; in the

other, the akimat had seized the garage without notice or providing compensation. As

Implication 1b predicts, the judge criticized the local administration: in both hearings,

he exclaimed, “How exactly do you work in the akimat?!” and criticized them for

their lack of attention to law and procedure.46 In the former case, he threatened to

open up an administrative case against the akimat for illegal actions (Ethnography,

Astana, 11/2015). These cases o�er support for Implication 2b; though the judge did

not directly censure the local o�cials involved in these cases, he threatened to do

so. He also ruled against them (a weak form of censure). In short, the two incidents

discussed in this paragraph reflect exactly the reactions that we should expect in

courts being used for monitoring.

The third incident was the one which provided an unanticipated “smoking gun,”

however. I received a copy of a report from the General Procuracy (National Prosecu-

tor’s O�ce) amidst a stack of other documents during a meeting; only when I sat down

later to review those sources did I discover it. The report was an audit of litigation

concerning seizures for eminent domain. Not only did it outline the extent and cost of

these cases to the central budget, identify key issues, and o�er policy suggestions to

address its findings, it also established the veracity of Implications 1 and 2. It high-

lighted several key issues related to local o�cials’ seizure of land for state needs: their

45“My nichego ne mozhem delat’.”46“Kak oni v akimate rabotajut?!”

138

failure to enact the Law on State Property on time or consistently; poor representa-

tion of state interests; inadequate appraisal of land (specifically, over-appraisal of its

value); seizure of land in the absence of state need or without compensation; and var-

ious “schemes of manipulation for land.” In addition, it criticizes local government for

“ignoring requirements of appealing to the judiciary in all cases,” thus confirming the

overarching expectation of Implication 1 : top-down policy does not just encourage,

but specifically requires the use of civil courts in disputes with citizens. The existence

of the report is also proof of Implication 2a; it shows that the central government is

interested in and actively collecting information from court cases involving citizens

and state o�cials. While this is only a single report, its existence – in light of the

opacity which characterizes the inner workings of Kazakhstan’s authoritarian regime

– means that it is likely but one example of several. Equally importantly, the report

spans a three-year period, indicating long-term data collection and monitoring.

Moreover, the report listed criminal cases that had been opened as a result of in-

vestigations during civil suits. Some of these concerned fraud by citizens or appraisers,

but ten o�cials were subject to disciplinary measures as a result of the prosecutors’

inquiries into these court cases. Unfortunately, because no more detail was provided,

it is not possible to discern whether these o�cials were akims or another type of local

o�cial. Nonetheless, the fact that o�cials su�ered criminal consequences in response

to information uncovered during civil litigation – coupled with the judges’ threats in

the two cases concerning garages discussed above – confirms Implication 2b.

What the report discussed and left out regarding the most common types of trans-

gressions concerning eminent domain is also telling. Among the key issues it high-

lighted were the aforementioned “schemes of manipulation” regarding land: illegal

139

receipt of “inflated compensation” (what I have termed ‘insider trading’), the con-

clusion of illegal contracts for redemption out of court, division of land parcels for

sale, and the reselling of seized plots. It paid particular attention to rent-seeking

schemes where land was appraised at inflated values, in clear violation of the Law on

State Property. For example, it included photographs of empty farmland purchased

at above-market value alongside luxury homes on land in the capital that could have

been bought for the same sum. This echoed that account in which the akimat seized

land for more than the market price, and told residents to then give him 10% back

of what they were given for the property (Attorney Interview 14, Shymkent, 4/2015).

Throughout, the audit emphasized (and quantified) how much this type of fraud had

cost the central budget.

While it acknowledged that the reselling (for commercial purposes) of land which

had been seized for state needs was a common occurrence, none of the measures

that were suggested to address the audit’s findings mentioned this type of fraud. In

this, it concurred with several accounts from respondents in Astana and Shymkent of

o�cials blatantly seizing land as “interested parties” or “middlemen.”47 For example,

in Astana, one man found his home under seizure for the construction of a private

parking garage (Landholder Interview 12, Astana, 10/2015); in another part of the

city, some 55 plots of land were seized to build a single, 240-student kindergarten.

Most of this land went to large-scale housing developments, and only a small portion

to the kindergarten. As the respondent noted, “In a plot that size they could build

a kindergarten big enough for all the children of Astana!” (Ethnography, Astana,

47“Zainteresovannoe lico”; “Posredniki.”

140

9/2015).48 This practice is illegal under the provisions of the Land Code, which allows

government seizure only for specific public-use purposes (Zemel’nui Kodeks Respubliki

Kazakhstan, 2016). It did, however, dedicate a section on suggested measures to

calling for tougher sanctions for those who engaged in land “speculation” (driving up

the appraised value of land being seized) and for o�cials who failed to implement the

Law on State Property when calculating compensation. In other words, the report

reflected Implication 2c: there was a clear lack of consequences (or even call for there

to be any consequences) for rent-seeking activities like the ‘middleman’ scheme, but

a strong emphasis on limiting fraud that impacted the central budget.

In short, there is strong evidence that civil courts help the central regime monitor

local o�cials’ rent-seeking activities (Implication 2 ), and that this reflects a deliberate

central policy (Implication 2 ) that those o�cials resist and sometimes circumvent

(Implication 3 ). Though the example here has been eminent domain, this explanation

extends to other types of citizen-state disputes: in general, the dictator needs to keep

track of and manage his subordinates, and civil courts help him do so. Future research

will test this argument by applying it to other types of cases; in the meantime, it is

worth noting that conflicts with local state agencies over housing, state purchases,

taxation, and other concerns also appear regularly on Kazakhstan’s civil court dockets

(Supreme Court of the Republic of Kazakhstan, 2016). The next section examines the

evidence for my second argument, which concerns sources of citizen-state conflict that

simultaneously a�ect (and thus have the potential to mobilize) large, interconnected

groups of citizens.

48This quote was recorded in its English translation in my notes.

141

4.4.2 Dispersion

Civil courts also help disperse the high potential for collective action that arises

when local o�cials’ rent-seeking impacts entire communities. As addressed in the

previous section, local o�cials funnel those who refuse to agree to their terms into

court to satisfy demands from the central regime (and to protect themselves against

censure). When faced with a choice between accepting the akimat’s terms or de-

fending themselves in court, many landholders choose to take their chances before a

judge. However, this makes it more di�cult to unite against the local government;

their e�orts are e�ectively redirected into litigation. As a result, shared outrage be-

comes “individualized” and the risk of protest less likely. A key implication of this

argument is that there must exist a “high potential” for collective action Implication

4. However, if correct, this point is also di�cult to prove; if courts are e�ective tools

for discouraging protests, we should not expect to see protests often – so how do we

know about their initial likelihood?

One test is to examine whether, when confronted with seizure under eminent

domain, citizens choose organizing a protest as a preferred strategy with any frequency

(Implication 4a). Absent expressed interest, it is di�cult to imagine that protests

could pose any threat. While other factors contribute to whether or not individuals

actually try to protest, interest is a prerequisite; in other words, it is a necessary

but not su�cient condition to make the threat of protest a viable one. I evaluate

whether this condition is present in two ways. The first involved asking landholders

to respond to a hypothetical vignette about seizure under eminent domain. The

vignette was included in the survey of landholders in Kazakhstan’s three largest urban

areas: Almaty, Astana, and Shymkent. Respondents were selected according to a

142

population-based quota, using a random walk from a randomly-selected point in each

city neighborhood and bordering suburban district; those in Astana were sampled

in the survey’s first wave, and those in Almaty and Shymkent in its second. Both

waves contained the same brief vignette describing a hypothetical cousin whose land

has been seized for state needs and who has been o�ered compensation far below its

market value. Respondents were handed a list that included the following strategies:

• Try to come to a private agreement with the local government• Try to organize a protest• Write to the mass media, and ask them to publish your story• Petition the Land Committee for help• Petition the Ministry of Justice or the Prosecutor’s O�ce for help• Petition the President for help• Go to court (Almaty and Shymkent) / Refuse the compensation (this

means he will go to court) (Astana)• Other (specify)

They were then instructed to choose which of these strategies they would advise

their cousin to employ49; they were told to choose as few or as many as they thought

appropriate. This information was used to create a binary variable indicating whether

residents chose “organizing a protest with neighbors” as one of their strategies. In

the total sample, over half of all respondents advised their cousin to protest. In fact,

after “discussing things in private with the akimat,” it was the most popular strategy

chosen, and 22% of those who selected it indicated it was their first strategy. This

finding is particularly compelling given that the vast majority of respondents chose at

least one strategy of those listed (only about 3% declined to do so), and on average,

49The questionnaire used the Russian term posovyetovat’, which has stronger connotations than“advise” in English.

143

they chose three strategies. In other words, this measure suggests that there does

exist a strong threat of protest.

Table 4.1: Protest as a StrategyRegion Mean Protest (N) Total (N)Astana .71 344 488Almaty .67 205 308Shymkent .09 25 267Total .54 574 1,063

The potential for protest

varies significantly across

regions, however. While in

Astana and Almaty, 71%

and 67% of those sur-

veyed selected organizing a

protest, just 9% of respon-

dents in Shymkent made

the same choice. While not unexpected, the degree of di�erence between Shymkent

and the other areas is striking. Shymkent is located in South Kazakhstan, a region

widely characterized as the most “traditional” of the three. This characterization

– either implicitly or explicitly – refers in large part to the strong entrenchment of

informal patronage networks, clan identities, and prevalence of violence and corrup-

tion in the region. Indeed, to resolve things po-Shymkentskij (in the Shymkent style)

is shorthand for clever deception or illicit means, and in movies and popular cul-

ture, Shymkent is often associated with violence (Nur.kz, 2017). While it is di�cult

to ascertain the degree to which these descriptions are true, it could dampen the

potential for protest because individuals fear violent retaliation more; however, this

explanation requires further research before any firm conclusions can be made. More

generally, the higher likelihood of protest in larger urban areas reflects existing re-

search, which finds a strong relationship between urbanization and protests (Wallace,

2013). Regardless of why these regional distinctions exist, these data do clearly show

144

that despite Kazakhstan’s highly authoritarian regime, a surprisingly large proportion

of landholders in the country’s largest urban centers express a willingness to engage

in protest (Implication 4a).

Qualitative data support the idea that the hypothetical willingness to protest

highlighted above materializes into real plans once citizens find themselves targeted

for seizure (Implication 4b). In 2015, I met with landholders in two neighborhoods in

Astana’s Almatinskii and Esilskii Districts where homes had been placed pod snosem

by the akimat, and followed the neighborhood in Almatinskii Raion for close to a

year. Both raions, or districts, are located in Astana’s “new city,” an area that has

experienced a rapid transformation from relatively empty steppe to the center of a

major city. In these neighborhoods – as well as in interviews with other individuals

whose land had been subjected to seizure – there was palpable outrage over the terms

they had been o�ered. Land prices had risen rapidly: from just 2012 to 2014, they

jumped from an average of $6,000 to $8,347 in Esilskij Raion and from $3,598 to

$8,780 in Almatinskij Raion. The compensation o�ered by the akimat was far below

market value; usually, around 50% or less than the price the land would fetch in the

current real estate market. “The akim takes it cheap, in order to ‘get his,’ and we’re

left standing like a herd of sheep,” noted one woman (Landholder Interview 4, Astana,

9/2015).50 Furthermore, in Esilskii Raion, most homes were built on land classified

for seasonal use, which lowered the value o�ered by the akimat even further (Personal

Correspondence with Journalist, 8/2015). As one woman in the neighborhood noted,

“Our home should cost 107 million tenge, and they proposed 5 million” (Ethnography,

50“Akimat vzjat deshevle chtoby poluchit’ svoe, i my stali stada baranov.”

145

Astana, 9/2015).51 These o�ers were also made just before Kazakhstan’s currency,

the tenge, declined in value nearly 20% when the country’s central bank made it free-

floating (Solovyov, 2015). As a result, it was “impossible to find anything more than a

two-room apartment without any installed plumbing” for the price they were o�ered

(Landholder Interview 5, Astana, 10/2015).52 “We’re not asking for Range Rovers

or luxe-class apartments, just enough for a normal home in the city!” (Ethnography,

Astana, 9/2015).53

Residents expressed a willingness to sell and an understanding that in the center

of the new city, “There should be something, some pretty buildings built,” but were

outraged over the “miserly” compensation they were asked to accept and wanted

“reasonable compensation so we can buy di�erent, normal housing.”54 One resident

pointed to my purse, and using it as an example, said,

Imagine you bought the purse for $15 and came to Kazakhstan, and it’sworth $75 now. And maybe if someone o�ers you money for the purse,you’d be interested, but...then they say well we’re going to take yourpurse, but we’re only going to give you what you paid for it originally,even though you could go on the market now and get a price much higherfor it. And it’s your purse, but you’re not allowed to dispose of it butrather have conditions mandated to you. That’s a violation of your rightsas an owner of that purse (Ethnography, Astana, 9/2015).55

That outrage translated into discussions of how to best resist the local governments’

actions. Initially, residents in both neighborhoods attempted a range of relatively

51“Dom dolzhen stoit’ 107,000 mil. tenge; oni predlogali 5 million.”52“Za jeti den’gi tol’ko mogut 2-kom chernovoj kvartiry mogut kupit’...”53“Ne prosim kakie to randzh rovery, kvartiru ljuksogo klassa, prosto dostachno dlja normal’nogo

zhil’ja v gorode, ne za gorod daleko.”54“My ne protiv idej prodovat’, ponimaem chto jeto centr goroda, dolzhno byt’ zdes’ kakie-to kra-

sivye zadanii, no hotim razumnuju kompensaciju, chtoby mogli najti drugoe normal’noe zhilishhjo.”Other comment: Misernaia summa.”

55This particular account was recorded in English in my notes.

146

low-risk strategies: they wrote to mass media outlets to publicize their story; sent

jointly-signed letters to the financial police, prosecutor’s o�ce, and President; and

visited the akim’s o�ce to try to meet with him in person. These e�orts were exten-

sive and coordinated among core groups of around ten “active” residents. In one of

the neighborhoods, a group of neighbors showed me a stack of correspondence several

inches thick that constituted their attempts to resolve their conflict with the akimat

(Ethnography, Astana, 9/2015); another family showed me the similarly-large port-

folio pictured below (Landholder Interview 13, Astana, 12/2015). However, they all

met with little result. Most media outlets refused to feature their story: “From the

mass media only Channel 31 came;56 everyone declined. It isn’t interesting to anyone

– this is already common practice.”57 Attempts to petition other government agen-

cies met with a standard response: if they were unsatisfied with the situation, they

needed to go to court. Moreover, following that response, their letters were forwarded

to the very akimat against whom they were complaining! This “reroute and return”

occurred in both neighborhoods, and was mentioned by residents in a third where

I conducted additional interviews. None of these groups knew one another. Thus,

the congruence in their stories supports Implication 6 : when residents try to address

disputes between the local executive and citizens through other agencies, they are

consistently diverted to the courts.

Residents decried the “machinations” of the “self-interested” akimat (Ethnogra-

phy, Astana, 9/2015),58 and in the neighborhood in Almatinskij Raion, they discussed

56RFERL also later covered their story.57“Iz SMI tol’ko 31 kanal prishel; vse otkazalis’. Ne komu ne interesno – jeto uzhe obychnaja

praktika.”58“Eto mahinacija”; “ahimat zainteresovan.”

147

organizing a protest. Residents applied jointly to the KNB, Kazakhstan’s state se-

curity service for a permit to hold a “mirnaja sobranie” (literally, peaceful meeting

or gathering – a term used in Russian to denote a nonviolent protest) in front of

the akimat building, hoping to use the event to draw attention to their plight and

pressure the akimat to make concessions. These plans developed in conjunction with

residents’ initial hearings in district court, and there was significant overlap between

those who went to court in the first instance and those who signed the application to

protest. The five households (of 36 total) who declined to go to court also declined to

speak with me; a neighbor later said that they “were scared” (Ethnography, Astana,

11/2015).59 None of them signed the letter requesting permission to protest. In other

words, those inclined to protest were also those who were more likely to actively pur-

sue their case in court. Of the 31 households that participated in litigation in the

first instance, not a single one received higher compensation.

All but a few chose to appeal, including those who had signed the application

to protest. They derided the district court for “only listening to the akimat, but

maintained that, “There’s a bit of hope. We’re placing our hopes on the highest

courts,” said one; another agreed, saying “We’ll see, we’ll listen” (Ethnography, As-

tana, 10/2015).60. By the time they began their hearings, however, talk of organizing

a protest had evaporated (Implication 5a). Instead, their attention had turned to

the courts: “We’ll see this through to the end” (Ibid).61 When asked what they

would do if their appeal failed, another couple echoed them, saying, “We’ll keep on

59“Oni bojalis’.”60“Voobshhe – tol’ko akimat slushajut... Est’ chut’ chut’ nadezhda. Na vyshie sudi nadeemsja.

Vidim, po slushim.”61“My budem sadit’ do poslednogo.”

148

fighting” (Landholder Interview 5, Astana, 10/2015). In the midst of the appeals

process, the petition to protest was denied, but that news seemed to have little

impact. Only the resident who had taken the lead in organizing the community

expressed anger at the notice; the remainder were consumed with their hearings.

Figure 4.2: One family’s correspondenceconcerning seizure.

Of those who appealed, five households

received higher compensation, ranging

from 10-30% of what they had origi-

nally been o�ered. Eight decided to pur-

sue their cases further, including the or-

ganizer mentioned above. When I fol-

lowed up with them several months later,

everyone had finally accepted compen-

sation (Ethnography, 9/2016). Their

earlier outrage had vanished, and fiery

talk of protest and injustice had been

replaced by quiet resignation; the pro-

cess of going to court had e�ectively dis-

persed the impetus for collective action of any kind. Not only that, but the residents

had been physically dispersed: a year after receiving notice of seizure, only one of

them remained in Astana (Ethnography, 9/2016). The others had moved away, be-

cause they could not a�ord to purchase any real estate in the city. In short, funneling

discontented citizens through civil courts proved extremely e�ective for dissipating

the potential for collective action.

149

Doing so is not necessarily failsafe, however. Some neighborhoods still organized

protests: in Astana in 2014, four groups of women whose homes had been seized

protested by (respectively) chaining themselves to the fence in front of the parlia-

ment building (Compro, n.d.), marching in front of the presidential palace (Glushkova,

2014b), and engaging in a hunger strike (Glushkova, 2014a). The groups numbered

just 5-20 participants, but the fact that protests like these do sometimes occur of-

fers evidence for (Implication 4c); the widespread interest in protest captured in the

landholders’ survey and plans made by those targeted for seizure do not constitute

‘empty talk.’ Moreover, even these small gatherings of protesters were treated as an

immediate threat and met with swift repression by security forces (Implication 4d).

This suggests that the regime fears they may have a wider impact, and even spark

the kind of “tipping” e�ect that Magaloni & Wallace (2008) discuss. Indeed, that

fear is not unfounded: proposed changes to the Land Code triggered Kazakhstan’s

largest mass protests since independence in several cities throughout the country in

May 2016 (VOA, 2016). Those assemblies not only highlighted the extent to which

land is a highly political and potentially mobilizing issue in the country, but also

reflected “simmering socio-economic grievances” and pent-up demand for political

reforms (Lillis, 2016).

Those protests mushroomed rapidly, and eroded Kazakhstan’s “carefully culti-

vated image as a haven of stability” (Ibid). In response, President Nazarbayev back-

tracked on the proposed legislative changes (VOA, 2016), but hundreds of protesters

were arrested and the movement forcibly dispersed (Lahanuly, 2017). Popular re-

actions to the government’s treatment of the protesters suggests that the costs to

regime legitimacy of using force – particularly in the wake of the regime’s violent

150

crackdown on protesting oil workers in the western town of Zhanaozen in 2011, which

killed as many as 16 – are very real. As Pannier (n.d.) notes with respect to the

past protests, “Zhanaozen is synonymous with civil unrest, protest, and bloodshed.”

The regime’s comparatively muted response to the 2016 land protests, which featured

detentions and convictions but avoided the violence that erupted in 2011, highlights

the seriousness with which it views the costs of engaging in violent repression. Land

seizures similarly possess a strong potential for provoking protest, as the case of

Kazakhstan’s neighbor, China, clearly demonstrates (Cui et al., 2015). Moreover, the

citizens a�ected by state land-takings tend to be highly sympathetic figures: they are

ordinary individuals upset over the loss of their home. Funneling them through civil

courts helps reduce the regime’s need to draw on force, thus avoiding actions which

directly undermine popular support and legitimacy. While measuring the costs and

consequences of loss of legitimacy is di�cult, that latent level of support matters for

regime stability and longevity (Dahl, 1973; Gerschewski, 2013).

4.5 Conclusions

In summary, Kazakhstan’s central regime uses civil courts as a tool for monitoring

local o�cials’ rent-seeking and managing citizens’ responses to that activity. In order

for the courts to provide “good” (accurate and largely comprehensive) information,

however, they must be the primary state organization which handles citizen-state dis-

putes such as those concerning eminent domain. The central regime therefore requires

local o�cials to use civil courts if they cannot come to an agreement with citizens,

and forbids other state agencies from addressing these conflicts themselves; when cit-

izens attempt to turn to them help, they are funneled back into the courts instead.

151

The requirement that the local government file a case preemptively is a self-enforcing

mechanism because courts also enforce minimum limits (the legal ‘floor’ discussed in

Chapter 3) on o�cials’ behavior. Thus, if local o�cials fail to send an unresolved

dispute to court, they risk being sued by citizens and losing in court – which can

result in them being censured by the central regime. Thus, in most eminent domain

cases, the akimat takes the lower-risk option of filing a case against any citizens who

refuse the compensation they are o�ered. Though they complete this formal require-

ment, they try to discourage landholders from challenging them in court in order

to avoid lowering evaluations of their ability to e�ectively control their districts. At

the same time, channeling these disputes through the courts makes it more di�cult

for the communities involved to coordinate for any kind of collective action. Despite

their shared interest in using protests to pressure the local government for concessions

(especially in the capital, where they might hope to attract the attention of central

authorities), many choose the much lower-risk option of going to court to address

their loss. The central regime has courts sometimes o�er higher compensation to

encourage this choice, and to ensure that courts receive enough willing participants

to continue to provide the dictator with information and to e�ectively disperse those

predisposed to protest. The next chapter addresses whether or not this strategy is

e�ective – and why.

152

Chapter 5: Why Do Citizens Participate?

5.1 Introduction

As the last chapter details, using civil courts to settle citizen-state disputes benefits

the dictator. However, a key question remains: why do citizens acquiesce? In other

words, in an authoritarian regime with high levels of corruption, pro-state bias, and

a dependent judiciary, why do citizens choose to go to court against the state? Their

willingness to do so is crucial for sustaining courts’ utility for the dictator, but it is

far less clear what benefit they receive. Yet, their voluntary participation is crucial.

In his seminal work on courts, Shapiro (1986, p.2) argues that consent constitutes the

“most fundamental device” for sustaining court systems. “Having chosen both the

law and the judge and thus of having consented to the judgment rather than having

it imposed on him,” those who lose in court preemptively choose to accept their own

loss, and in doing so, imbue the judicial process itself with legitimacy. Should the

triad of participants – two conflicted parties and the judge – “break down into two

against one,” however, the logic that underpins courts evaporates, and courts cease to

function as conflict resolution mechanisms. In authoritarian regimes like Kazakhstan,

this “breakdown” occurs so frequently as to be considered the norm: dictators tend

to keep tight control over their judiciaries. Hence, courts would seem to become mere

153

window-dressing, especially in conflicts with the state. This implies that citizens

should try to avoid them in these situations – thus ceasing to provide the regime with

valuable information or disperse potential protesters.

However, in Kazakhstan, we see citizens engage state o�cials in court with sur-

prising frequency. Indeed, as Table 1 shows, given a scenario involving a dispute with

a neighbor who has taken land and with the local government for doing the same

thing, they are more likely to recommend going to court against the latter. Why do

many citizens voluntarily engage these o�cials before judges biased in favor of the

state? This is especially puzzling because citizens incur significant risks and spend

substantial time and money to do so, despite scarce hope for retaining their property.

Existing literature presumes these cases simply don’t happen, and therefore o�ers

limited guidance. In China, the regime has used administrative courts to discipline

local o�cials, and those o�cials who overstep face a real danger of being sanctioned

(Peerenboom, 2002). This explanation does not travel well to less-institutionalized

regimes, such as Kazakhstan, where clientelism and corruption form the pillars of

the leader’s rule – and thus, are tacitly permitted. In these regimes, local o�cials

regularly use their positions to engage in rent-seeking. Why, then, do we see so many

citizens participating in litigation against them?

Table 5.1: Going to Court: Neighbor vs. GovernmentGroup Obs Mean S.E. S.D. 95% C.I.Neighbor 500 .15 .02 .36 .12 .18Government 500 .58 .02 .49 .53 .62Di�erence -.42 .03 .60 -.48 -.37

t=-15.9 dof=499Pr(Ha: di�<0)= .000 Pr(Ha: di�!=0)=.000 Pr(Ha:di�>0)=1.000

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I argue that courts attract citizens’ participation because they provide an oppor-

tunity to improve their situation. “Improving” is a crucial distinction here: only

rarely do they seek an outright reversal of o�cials’ actions. Instead, citizens turn to

courts as a means to appeal to the central regime. Their overriding goal is not to

“win” outright, but rather to mitigate their loss by obtaining improved compensation

(and to delay eviction). While citizens are conscientious that courts are dependent

and often corrupt, pursuing litigation still constitutes a rational decision for three

primary reasons. First, even if the probability of a favorable decision is not high, it is

not zero. Therefore, where the stakes are high for individuals’ economic well-being, as

they are in many property disputes, individuals are more likely to engage government

o�cials in court. Alternatively, courts’ corruption may present an additional oppor-

tunity for some. Thus, I also address a potential alternative hypothesis: that those

who are wealthy or well-connected go to court specifically because they can use these

informal means to achieve a favorable ruling. Finally, courts’ direct link to the execu-

tive – where citizens express greater trust in the central regime – also helps motivate

participation. As a result of these factors, the regime receives a level of consensual

participation that provides courts with minimal legitimacy and the participation it

needs.

5.2 Literature Review

As previous chapters have addressed, autocracies depend on the informal, subjec-

tive application of power to survive, an approach that extends to how they construct

and enforce law. In such regimes, rather than institutions which mete out justice,

courts operate as agents of key patrons. In a stable, centralized system, judges serve

155

as agents of the executive, and utterly lack the independence which is widely consid-

ered critical for rule of law. For this reason, it is puzzling that ordinary citizens would

ever turn to courts, especially in disputes with state o�cials. Trumped-up criminal

cases against dissidents, journalists, and others have fostered the impression that if

citizens become embroiled in litigation in an authoritarian regime, that involvement

comes in the form of armed security forces dragging them to court on questionable

criminal charges. The prosecution and subsequent imprisonment of Yukos executive

Mikhail Khodorkovsky in Russia for fraud after his support for Russian opposition

parties is but one of myriad examples (Walsh, 2003).

In current literature, the emphasis continues to be on how autocracies use courts to

impose “rule by law” (Ginsburg & Moustafa, 2008). Rajah (2012) outlined how strict

enforcement of anti-gra�ti and other minor criminal laws, which have contributed

to Singapore’s reputation as having rule of law without democracy, were actually

designed to combat specific acts of protest by opposition forces. Others have examined

how, by providing courts with some degree of independence, autocrats were able to

insulate themselves from backlash against unpopular economic reforms (The struggle,

n.d.). However, there has been far less attention paid to why ordinary citizens are

willing to go to court, and civil courts have been especially neglected. Civil courts are

also not charged with sanctioning o�cials (in Kazakhstan, cases for o�cial misconduct

are specifically relegated to administrative courts), making it unlikely that a desire

to punish o�cials motivates litigation. Indeed, few citizens in Kazakhstan seem to

believe that local o�cials are ever subject to punishment: as one woman whose

land was seized recently declared, “Chinovniki (o�cials) don’t fear anyone, not even

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God,” (Glushkova, March 2017); she plastered her home with portraits of President

Nazarbayev in hopes that they would listen to him instead.

The general tendency among authoritarian regimes toward poor performance in

these areas (Transparency International, 2014; Transformation Index , 2016) has likely

contributed to the continued scholarly neglect of civil courts. In a handful of authori-

tarian regimes, the need to attract foreign investment has motivated leaders to crack

down on corruption and provide relatively impartial, e�ective commercial courts to

adjudicate these kinds of disputes. Such regimes often retain dependent criminal

courts to counter any potential threats, or outsource those functions to “special”

courts, such as military tribunals (Pereira, 2008). Again, Singapore is a key example.

Silverstein (2008) finds that there, a dual-court system has emerged: courts that deal

with financial disputes operate relatively free from regime pressure or corruption, even

in cases involving predatory state o�cials, while criminal courts remain subject to

state interference. Wang (2015) discusses a similar phenomenon in China, where he

finds that regions whose budgets depend more heavily on tax revenue from non-state-

owned enterprises are more likely to act in private businesses’ favor in commercial

disputes; he terms this a “thin” version of rule of law.

In these contexts, it is intuitive why individuals and firms may use courts to settle

disputes. Despite being embedded in a non-democracy, they reliably and impartially

fulfill the functions we expect of courts – even in disputes with local o�cials – and this

in turn drives citizen participation. But what about courts without these redeeming

qualities – civil courts that remain widely plagued by corruption, which citizens do

not trust? This describes the status quo in most authoritarian regimes, including

Kazakhstan (Transformation Index , 2016). Hendley (2012) found that, contrary to

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still-widely-held assumptions, distrust and corruption are not su�cient to discourage

Russians from turning to civil courts as dispute-resolution mechanisms. She argues

that locals are generally savvy enough to know when o�cial influence is likely to sway

a case’s outcome, and steer clear in those instances; otherwise courts work more or

less ‘as intended.’ This implies that we should see citizens turn to courts only in cases

where they expect political interference to be absent.

Her work sidesteps two key issues, however. First, courts may represent an oppor-

tunity to draw on informal strategies within the context of a formal institution that is

a direct agent of, and backed by, the central government. Corruption is widespread in

the Russian (and other authoritarian and semi-authoritarian) judicial systems, and it

is hardly limited to “telephone justice”, or the practice of using informal connections

to sway the outcome of cases, especially those involving state o�cials (Ledeneva,

2008); that straightforward bribery also plays a role is commonly-accepted among

scholars and citizens alike. One interviewee (Attorney Interview 23, 12/2015, As-

tana) related a joke (anekdot) which illustrates this point well:

A plainti� meets with the judge to discuss his case, and at the end of themeeting, slides a plain envelope across the desk. The judge opens it, sees10,000 rubles, and slides it into his drawer. Next the defendant enters tospeak with the judge, and as he is leaving, also hands an envelope to thejudge. He opens it, and seeing 10,000 rubles, says to the empty room,“Well, I guess I’ll decide the case according to the law.”

In a similar manner, local o�cials may not be alone in their ability to call on informal,

personal connections to achieve an improved outcome at court; some citizens also

enjoy these ‘insider connections.’ In other words, corruption may be a reason why

some go to court in the first place – and why they are successful in their suit.

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Second, contrary to expectations, a substantial number of citizens can and do

face o�cials in court in highly politicized disputes like those which are the focus of

this dissertation. More surprising yet is the fact that they are not limited to the

well-to-do individuals that we would expect in the first scenario, but also include

poor, migrant, and/or elderly individuals with few financial or political resources. In

Kazakhstan, cases with defendants or plainti�s like these appear frequently, and my

parallel interviews in Azerbaijan and Russia suggest the same is true there; Spector

(2015) finds a similar phenomenon in Kyrgyzstan. In other words, even when they

know that cases are politicized and judges are corrupt – and do not have the means

to use the latter to their advantage – people in some autocracies still choose to go to

court. Why?

The struggle (n.d.) has argued that sometimes, opposition members will repeatedly

pursue cases against o�cials knowing they will lose in order to point out a pattern of

inconsistencies between the regime’s rhetoric surrounding rule of law or human rights,

and its behavior. Yet, in the citizen-state land disputes that are the subject of my

and Spector’s work, those involved in court cases are not members of the opposition.

Nor are they (or have they generally ever been) politically active, although some

do become politicized following their experiences in court. Spector (2015) explains

citizens’ litigation against o�cials in Kyrgyzstan in terms of future expectations:

major shifts in which elite groups hold power there mean that even though court

decisions may be unfavorable or remain unenforced, litigants hope that decisions may

be enforced in the future. In stable and consistently authoritarian regimes such as

Kazakhstan, however, this argument holds little purchase; the expectation that there

will be a shift in power to favor a litigant is absent when there has been zero turnover

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in the country’s history as an independent state. In short, existing literature o�ers

little guidance as to why citizens in an authoritarian regime like Kazakhstan are

choosing to face state o�cials in civil courts.

5.3 Theory

In the previous chapter, I argued that in order to give citizens a reason to par-

ticipate, courts sometimes o�er higher compensation to citizens in cases that involve

state o�cials. However, overall, they remain biased in favor of the state. Does this

tactic work? Do citizens actually choose to turn to courts, and if so, why? After

all, pursuing a court case is costly in terms of time spent; legal assistance, expert

witnesses (for example, appraisers in property cases), and court fees can dramatically

increase those costs. Even in democracies, these costs are high, and deter many in-

dividuals from using courts to settle civil disputes (Stanley & Coursey, 1990). In an

authoritarian regime with a biased, corrupt judiciary, those costs may be even higher,

and in citizen-state conflicts, include retaliation by the local state o�cials who are

parties to the conflict. If individuals have a low chance at victory and must confront

these high costs, why go to court? Why not simply accept whatever compensation

state o�cials o�er, and avoid the costs associated with pursuing litigation?

I argue that citizens go to court because they believe that they have a chance

at winning better compensation for their property. In other words, the regime’s

strategy is e�ective in motivating participation: many individuals think that there

is some probability of an improved outcomes through courts, and are willing to take

the chance that their case will be successful. Here, it is important to qualify the

notion of success. Whereas in criminal cases, the terms ‘victory’ or ‘success’ carry

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relatively straightforward connotations (exoneration or conviction), civil cases – es-

pecially those concerning economic issues, like property – ultimately hinge on money.

Ideally, most citizens would prefer to retain their property; indeed, this is what inter-

viewees universally confirmed. This happens very, very rarely in practice.62 In this

sense, individuals have a near-overwhelming probability of defeat. However, there ex-

ists a wide range of outcomes between ‘total loss’ and ‘keeping their property.’ These

shades of gray exist in nearly all civil cases. In land and housing disputes with o�-

cials, few people expect to achieve their ideal, but that does not preclude an improved

outcome that more closely matches their preferences – i.e., higher compensation than

what they were initially o�ered. At the beginning of each case, judges ask each party

what result they are seeking; that most choose to forgo a request to keep their home

in favor of pursuing a more practical outcome supports the idea that their choice is

a rational one. Moreover, for many, the impact of this compensation extends beyond

simply housing. As we saw in the last chapter, high real estate prices in major urban

areas mean that without adequate recompense for their seized property, even middle-

class individuals cannot a�ord to remain in the same area; as a result, their entire

socioeconomic standing and way of life is threatened.

Here, casinos provide an apt analogy. Most people who play the slots at a casino

know that the odds favor the house, and that the probability of taking home the

jackpot is slight. Yet, they have no problem attracting customers. Customers play

because there exists some chance that they will be the lucky one who wins big – or

at least, that they will win more than they spend. However, their motivation to play

hinges on the casino o�ering occasional payouts. No one would go to a casino where

62I was able to confirm one such case, and heard reference to a handful of others.

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everyone lost all of the time. People will (and do), however, go to casinos where

players lose frequently. For some, this may be because they lack accurate information

about their odds; others hold out hope that they will be that rare individual who beats

the odds. I argue that a similar logic underpins citizen participation in cases against

state o�cials. While citizens acknowledge that courts are biased against them, many

choose to ‘roll the dice’ in hopes that they are the exception – that they will win the

‘jackpot’ and receive full market value of their home in compensation – or at least,

that they will receive more than the akimat’s initial o�er. In contrast, those who lack

that belief will be unlikely to participate in the first place. Moreover, the impetus

among those who believe they might have luck in court is reinforced by the fact that

gambling on ‘coming out ahead’ in this scenario carries much higher stakes than it

does for a casino-goer simply hoping to recoup money he or she could (presumably)

stand to lose in the first place.

In other words, a combination of need and belief in the opportunity courts o�er

motivate citizens to go to court against state o�cials. In arguing the former, I

echo Hendley (2012)’s assertion that need plays an important role in driving citizen

participation in authoritarian courts. When it comes to disputes with a powerful

regime, citizens have limited options that do not impose out-sized costs: protests

require permits, and whether authorized or unauthorized, carry a high risk of arrest or

incarceration (Transparency International, 2014). Moreover, those o�cials who seize

property are one and the same as those with the authority to address complaints, and

they are not accountable to their constituents via elections. They also appear to exert

informal over control other local state organs, such as the Procuracy (Prosecutor’s

O�ce), which are charged with investigating any abuse of power by akims (or at least,

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they have been ceded informal jurisdiction over any complaints directed at them).

Landholders in di�erent areas who had been subject to seizure similarly recounted

how pleas they sent to the local financial police, prosecutor’s o�ce, or other state

organs were rerouted to the akim about whom they were complaining in the first

place (All Landholder Interviews, Astana, 9 & 10/2015)! Attempts to take their

complaints ‘higher’ in the bureaucracy resulted in their petitions being returned to

local authorities. They then had to decide between going to court, or accepting the

terms they had been o�ered. Given these circumscribed options, a high level of need,

and a small but not impossible chance to mitigate their loss at court, many choose

court. Thus, I expect that a large proportion of citizens will choose to participate in

litigation; those who find their choices are limited will be more likely to do so.

Proposition 1: Citizens choose to go to court against local o�cials be-cause they seek higher compensation.

1a: Where other strategies for addressing the conflict are circumscribed,the probability of going to court increases.

1b: Those who believe it is at least somewhat likely they will receivehigher compensation are more likely to choose to go to court.

An alternative hypothesis is that courts’ very corruption actually motivates, rather

than discourages, participation. Those who enjoy informal (in the Kazakhstani case,

this usually refers to familial) links to o�cials in the judicial system may choose to

go to court because they believe that those connections can sway rulings in their

favor. As one interviewee explained, “If we had some uncle (dyadya) who worked

in the court, we wouldn’t even need a lawyer...” (Landholder Interview 4, Astana,

9/2015). In addition, bribery in Kazakhstani courts is cited as being widespread. If

citizens believe bribery constitutes a viable means for achieving a favorable ruling,

then they may be more likely to turn to courts and more likely to think that they

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will be successful when they do. Courts’ close ties to the executive – and the fact

that they are paid directly from the central budget (Attorney Interview 30, Almaty,

12/2015) – mean that their formal and informal authority derive from a patron-client

network distinct from that of most local o�cials. In other words, courts’ authority

operates outside those o�cials perpetrating property seizure, and is backed up by the

power of the executive. By default, judges tend to acquiesce to o�cials’ stances in

court, but if citizens can use informal strategies to influence the judicial process, then

they will be more likely to try going to court – and more likely to expect that doing

so will be fruitful. This yields my second theoretical proposition:

Proposition 2: Informal factors influence who goes to court, and theirestimation that they will be successful.

2a: Citizens who have strong informal ties to court o�cials or will bemore likely to choose to go to court.

2b: Citizens who have strong informal ties to court o�cials will also bemore likely to believe they will receive higher compensation if theygo to court.

2c: Citizens who cite bribery as a viable strategy will be more willing togo to court.

2d: Citizens who cite bribery as a viable strategy will be more likely tobelieve they will receive higher compensation if they go to court.

Finally, I argue that, contrary to dominant arguments in the comparative courts

literature, courts’ dependency on the executive, rather than discouraging participa-

tion, accounts for part of their appeal. Because courts are e�ectively direct agents of

the executive, their formal authority has a strong informal basis, too. Consequently,

they are one of few government agencies outside of the involved o�cials’ direct pa-

tron that can force them to act. Courts’ direct link to the dictator means that their

decisions should have teeth – at least within the state bureaucracy. Thus, if citizens

164

are successful in winning higher compensation, they should receive it; if they never

received even the initial amount they were o�ered, courts o�er the best available

means for procuring it. In other words, courts’ very dependency can – in the event

of a favorable ruling – translate into an advantage for citizens who find themselves

embroiled in a dispute with local o�cials. This, in turn, may help explain citizen

participation in two ways:

Proposition 3: Courts’ close ties to the executive help motivate partic-ipation.

• 3a: Consequently, if individuals never received their agreed-uponcompensation, they will seek remedy in court (because court rulingsare upheld).

• 3b: In disputes involving the state, court rulings will be consistentlyenforced, and this contributes to citizens’ view of court as a usefultool vis-a-vis local o�cials.

In short, I argue that citizens’ rationale for pursuing litigation in the courts stems

from a combination of formal and informal factors. Most individuals subject to seizure

must choose to exit and accept a devastating economic loss, engage in highly risky

or ine�ective strategies to mitigate that loss, or try their luck in a judicial system

biased against them. However, that is system is one where, if they are successful,

they are likely to receive concrete improvement vis-a-vis powerful local o�cials. How

the central government uses these courts means that though the likelihood of an

improved outcome for most citizens is not high, it is not zero. The extreme loss they

face means that for many, the need to pursue this chance outweighs the costs and risks

involved. Alternatively, courts may present an opportunity to use informal means to

achieve a better outcome than simply accepting a large economic loss. Those who can

use personal connections within the judicial system expect they will receive better

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treatment in courts than what local o�cials have o�ered; the opportunity to engage

in bribery may have a similar impact. Of course, all of this is contingent on being

targeted by local o�cials in the first place – a probability which is not likely to be

homogeneous throughout the population.

5.4 Data and Methods

In this chapter, I use a combination of qualitative and experimental methods. The

analysis that follows traces the theoretical propositions outlined above; for clarity,

I reference them at relevant points in the analysis. Because this chapter evaluates

citizens’ motives for turning to courts, analyzing their narratives makes intuitive sense

and is a vital tool for theory-testing. Much of the analysis thus focuses on a close

reading of and patterns in individuals’ own accounts of why they chose to engage

the regime in court. At the same time, the authoritarian context in which these

accounts were recorded necessitates caution and additional, corroborating evidence.

Consequently, I check the extent to which citizens’ accounts match their words and

actions in court, as well as evaluations by attorneys who see dozens of these cases each

year; I also pay attention to patterns that appeared over six months of court hearings.

Finally, asking directly about highly sensitive questions like the use of connections

or bribery would be likely to generate severe response bias, and these strategies also

tend to be unobservable during court proceedings. I therefore rely on two types of

experiments, hypothetical vignettes and an item-count question, embedded in the

landholders’ survey to test Proposition 2. These techniques increase the truthfulness

of answers to sensitive questions (Corstange, 2009), and the former have been found

to closely reflect respondents’ real-life choices; thus, it carries strong external validity

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(Hainmueller et al., 2015). Equally importantly, both types of experiments o�er the

advantage of providing clear-cut causal inference. Together, these mixed methods

provide a multi-faceted evaluation of the theory above.

I draw on three primary types of data in conducting this evaluation: semi-

structured interviews with relevant participants in the legal system, ethnographic

observation in courtrooms and neighborhoods impacted by seizure, and the results

of an original household survey of landholders in Kazakhstan’s three largest urban

areas (with an embedded experiment in two of those cities). All landholder inter-

views, ethnographic observation, and surveys were conducted following four months

of theory-building preliminary fieldwork, and it is on these data that this chapter

draws.63 I approached landholders via personal and media contacts, as well as us-

ing snowball sampling. Other interview respondents were not selected randomly, but

neither were they necessarily members of the same personal network: most were re-

cruited via cold-calling phone numbers listed in public domains such as government

and professional associations’ websites and registries (e.g., the bar association) or in

advertisements. This makes the congruence of their narratives in key areas particu-

larly compelling.

Because qualitative data strongly suggested that citizen-state conflict over land is

highly concentrated in and surrounding major urban centers, survey data collection

was limited to a random, stratified sample of landholders from within urban districts

or rural districts (raion) that immediately border them. While this means that the

63Due to the sensitivity of the topics discussed, all interviewees are anonymous, and citations havebeen redacted to remove identifying information; they are cited using a codebook that provides thecategory of respondent (e.g., Attorney), month/year, and general location.

167

data cannot be used to estimate the overall prevalence of land disputes in the oblasts

or country, it was a necessary limitation given available funds.

These qualitative data were collected over a total of 12 months in 2015, and formed

the basis for the survey of landholders referenced in the previous chapter. Here, I

draw on the survey’s experimental questions. One featured a vignette describing

land disputes a�ecting an unnamed cousin whose land and home have been seized

for state needs by the local akim, or executive, for far below market compensation.

This scenario was based on real-life situations described by interviewees in the field.

Respondents were then asked to specify which steps they would take to address these

disputes. The control group’s vignette does not assign any specific characteristics to

the cousin, while the experimental group’s story is identical save for a line describing

him as holding a “high position” in the local district court. Both the control and

experimental versions mention that the cousin’s wife is an attorney and therefore,

legal help is automatic and free. Respondents were then asked to choose the strategies

they would recommend to their cousin; they could choose as few or as many strategies

as they wished, and “go to court” was among them.64 A follow-up question asked how

likely respondents thought it was that the cousin would receive higher compensation

in court. In addition, the survey included an item-count question: respondents were

given a list of strategies they would use in a court case like the one described above,

and asked to give the number that they would attempt (but not which ones); the

64There was an issue with the wording of this option in the survey’s initial wave; e�ectively, itincluded two options in one, making it impossible to distinguish between “refusing to accept theo�ered compensation” and “going to court.” Therefore, only the experimental results for Almatyand Shymkent are reported for the vignettes. Future research will involve fielding the correctedversion in Astana

168

treatment item was “Try to bribe the judge, so that he/she rules in your favor.”

Treatments were randomized across all three experiments.

In addition, I draw on ethnographic notes from cases related to eminent domain

that were heard in fall 2015 and 2016 in Astana’s district and appeals courts. This

included attending specific cases of interest, as well as those about which I had no prior

knowledge. While I did have to obtain permission and notify the court’s Chairperson

(Predsedatel’) that I planned to attend court during these periods, I did not provide

prior notice on days that I attended, and scattered my attendance over the three-

month period. Thus, judges did not know more than 5-10 minutes in advance when

I would attend any particular hearing. While it is impossible to conjecture their

behavior in my absence, I am at least confident that they were not able to prepare

specifically for my presence in every case – caseloads are simply too high, with each

judge hearing around a dozen cases each day. Recording was not permitted in the

courtrooms, but I was permitted to take notes.

Finally, I supplement these data with copies of landholders’ petitions and letters,

court decisions, and publicly-available court schedules. These data primarily serve to

support my point that citizen-state cases are common in civil courts, and that land-

related cases are among the most common. I then come full circle and return to my

earlier courtroom observation and survey data to demonstrate that indeed, at least

some citizens who go to court see improved outcomes. Moreover, these are the goals

they come to court seeking in the first place. Together, these di�ering approaches

provide an overarching picture of why and under what circumstances citizens turn to

civil courts to resolve disputes with local state o�cials.

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5.5 Analysis

Even in democratic regimes characterized by a relatively high degree of rule of law,

many legal conflicts are settled outside court. Those that make it into the courtroom

represent a select, biased sample. Thus, answering the question, “Why do citizens

go to court against state o�cials?” first requires taking a close look at who goes

to court. What does that initial bias entail? In other words, what kinds of citizen-

state disputes exist in the population overall – and from among those individuals

who come into conflict with state o�cials, who decides to go to court, and why? As

outlined in Chapter 2, Kazakhstani law contains ambiguities (and thus, flexibility)

when it comes to justifying these seizures and in how compensation is calculated

(Zemel’nui Kodeks Respubliki Kazakhstan, 2016). Consequently, it is relatively easy

for local o�cials to use their legal authority to take land – purportedly, for personal

gain, either through illicit re-selling or through lucrative public works construction

contracts awarded to family or associates (Expert Interview, Astana, 6/2015). Their

incentive is to seize land for low compensation and resell it at higher prices; with the

huge increases in value that have come with increased urbanization, the returns from

doing so can be enormous. These returns are also much higher (and the risk much

lower) when expropriating from the sorts of already economically-vulnerable citizens

who are unlikely to have informal ties needed to e�ectively combat seizure.

In contrast, well-connected individuals can demand the full spectrum of their legal

rights to property, which includes equivalent compensation for any property seized

for state needs. This dramatically raises the cost of expropriation for local o�cials,

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and makes them less-attractive targets.65 Perhaps the most obvious evidence of this

is the continued existence of the small Chubary Raion, a neighborhood in the heart

of Astana’s “new” city (as opposed to the older, colonial- and Soviet-era center). The

neighborhood happens to be where many very high-ranking o�cials live, reportedly

including the Minister of Justice. A new roadway has been planned that would require

destroying a number of these homes, but there “were not financial resources” for the

project to move forward in 2012 (Usupova, 2016); to date, no land has been seized, and

no roadway built. As one respondent noted, “There will be war if they expropriate

[land] there,” (Ethnography, Astana, 9/2015).66 In contrast, just a few kilometers

away, in the neighborhood discussed above, a similar road expansion project has

already begun. The market rate there is – despite also being quite high – not a barrier

to development. There, most residents lack the informal ties needed to ensure they

would be awarded equivalent compensation, and instead have been o�ered amounts

that constitute a fraction of the property’s market value. As one noted, “Only elites

will live here in the center of the city... Regular people will be [pushed] further out”

(Ethnography, Astana, 10/2015).67

In other words, those who experience conflict with local o�cials over property

tend to be located toward the middle and lower end of the income distribution. The

survey data provide some additional support for this characterization. Respondents

were asked if they were or had ever been subject to seizure for state needs; nineteen

65While Kazakhstan’s Constitution and Land Code provide for equivalent compensation (to themarket value), other laws governing eminent domain allow for di�erent calculations that are farlower; appraisers and judges frequently use the latter when determining compensation (AppraiserInterviews 1-6, Astana, 5-6/2015).

66“Vojna tam budet, esli snosjat.”67“Zdes’ v centre goroda tol’ko budet zhit’ elita i prostye ljudi dal’she budut.”

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had. Of that group, only one stated that they “Lived in prosperity, and do not deny

themselves almost anything”; the majority (12 of 19 respondents) characterized their

income as su�cient to “live satisfactorily, and have their needs met” or “for the time

being, are able to make ends meet” (4 respondents).68 This is likely an underestimate

of the proportion of less-well-o� individuals targeted for seizure, because the survey

captured only those who still remained in the city. As shown in Chapter 4, those who

lose their property are often forced to move elsewhere because they can no longer

a�ord real estate in the same area; this is especially true in Astana, which accounts

for the largest numbers of seizures (and court cases). Moreover, both interviews

and courtroom observation support the view that seizures disproportionately impact

lower- and middle-class households. Many migrated to urban areas in search of better

economic opportunity, and often, purchased cheaper land not zoned for year-round

residence; they then built permanent (but technically illegal) homes. These homes are

not subject to compensation as anything more than low-value “cottages,” or dachas,

because the land is only zoned for seasonal occupancy. Others are lower-income, long-

term residents such as pensioners. These groups are concentrated at the lower end

of the income spectrum and thus usually lack the means to bribe judges or strong

informal connections within the regime. As a result, their land can be seized at

particularly low cost vis-a-vis its current market value. They are, in other words,

low-cost but high-value targets.

68The pretested version of the survey asked directly about household income; however, it wasdropped because most respondents refused to answer or “found it di�cult” to do so. The questionabove asked about quality of life (Skazhite, pozhalujsta, kakoe iz suzhdenij v naibol’shej stepeni harak-terizuet zhiznennyj uroven’ Vashej sem’i?) and included the following answer choices: 1)Zhivem vdostatke, pochti ni v chem sebe ne otkazyvaem; 2) Zhivem udovletvoritel’no, imeem vse neobhodimoe;3) Poka udaetsja svesti koncy s koncami; 4) Ne mozhem svesti koncy s koncami, mnogim prihodit-sja postupat’sja; 5) Zhivem v nishhete, otkazyvaem sebe v samom neobhodimom; 99) Zatrudnjajus’otvetit’.

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5.5.1 Who Goes to Court?

These deliberate targeting strategies by o�cials mean that the population of those

targeted for seizure tend to be comprised of the less wealthy and less politically well-

connected. Overall, this translates into a preponderance of these citizens in court:

they are simply over-represented in the sample of those who experience disputes in

the first place. Those in this lower-income bracket who I interviewed or observed in

court overwhelmingly cited need as the most important factor that motivated them to

go to court. All first wrote letters to the President and other high-level o�cials, but

received either no response or had their petitions rerouted back to the akim – who had

seized their land in the first place. They thus found themselves faced with a choice

between accepting the akim’s terms, or heading to court. Those who chose court

did so despite recognizing that their chances were slim: all categories of interviewees

save government o�cials universally acknowledged that corruption in Kazakhstan is

endemic and courts biased in favor of the state. However, they and others I observed

during court hearings repeatedly emphasized how inadequate compensation would

impact not only their housing, but also access to employment, schooling, and support

networks. One woman in appeals court begged the judge to listen to her; distraught,

she said, “There isn’t equivalent housing – [we’ll go] from good to the worst conditions.

We’ll be on the street” (Ethnography, Astana, 11/2015).69 Another observed that,

“If they take [our home] away from us, we aren’t anything” (Ethnography, Astana,

9/2015).70 High real estate prices in urban areas – always cited in dollars – combined

69“Ne ravnocennoe zhil’jo – iz luchshih v huzhih sostojanie. Budem na ulice.”70“Esli otbirajut ot nas my ne schej.”

173

already-low state compensation calculated in the volatile and declining local currency

meant that their options for housing were severely circumscribed.

In Astana, I interviewed residents from two neighborhoods where swaths of homes

had been seized just a few months prior; in one community, I was able to follow de-

velopments for close to a year. These neighborhoods provide an important snapshot

of how an entire group targeted for seizures reacted to the forced dichotomy outlined

in the previous section: either accept an enormous economic loss, or confront state

o�cials in what respondents acknowledged was a biased institutional setting. Several

residents in both neighborhoods consented to discuss their motivations and strategies

for refusing to accept the akimat’s terms and going to court. Rather than dispute the

seizure itself, all those I spoke with chose to fight for higher compensation before a

judge; the impact of losing their home on their overall socioeconomic situation drove

them to take even the slight chance they believed litigation o�ered (reflecting Proposi-

tion 1 ). They did so despite acknowledging that the system was biased against them.

One man, while discussing his experience in the district courts, disgustedly noted

that, “They [judges, prosecutor, police] only listen to the akimat.” His companion

shook his head in agreement and added, “People are facing a machine” (Ethnogra-

phy, Astana, 10/2015).71 Those in the second neighborhood echoed their sentiments.

I tried to speak directly with residents who had decided against litigation, but they

all refused my requests for a meeting; a local contact told me privately that they were

“too afraid” (Landholder Interview 12, Astana, 10/2015). At the same time, several

of those who I met with decided to appeal their cases – even after their unfavorable

71“Voobshhe – tol’ko akimat slushajut.” “Ljudi postupajut protiv mashiny.”

174

experience in district court. Together, these di�ering approaches suggest a possible

role for not only need but also trust in driving participation in court.

Indeed, I found that many of these landholders separated blame for these con-

ditions from their feelings for the regime as a whole. Among those who appealed,

there was a sense of hope that higher courts, because they were further removed from

local authorities, would hear their case more objectively. Though a group of neigh-

bors, when asked to rate their trust in the judicial on a scale from 1 to 5 (where 5

is completely trust), all chose 2, they all decided to appeal the district court’s rul-

ing. “There’s a little bit of hope,” noted one. “We’re counting on the higher courts”

(Ethnography, Astana, 10/2015).72 Another later added, “We thought to fight for our

legal rights. We thought that the court would listen. At the least maybe the Supreme

Court will listen” (Ibid).73 Many of those I interviewed echoed these sentiments. They

discussed both the higher courts and the President in terms of their roles in uphold-

ing the law, constitution, and citizens’ interests, and decried o�cials for “duping” the

President and preventing their petitions from reaching him (Ethnography, Astana,

9/2015). They were also willing to incur both harassment from local o�cials and

substantial financial cost to pursue their appeal and receive a response from a higher,

more trusted authority closer to the executive (Ibid). In short, courts’ dependence

on the executive – and perceptions that higher-level courts were closely linked to

him – helped motivate their participation. This supports Proposition 3, albeit in a

di�erent sense than anticipated. Rather than reliable enforcement driving citizens’

72“Est’ chut’ chut’ nadezhda. Na vyshie sudi nadeemsja.”73“My dumali poborot’sja za nashi prava. Dumali chto sud nas slyshat’. Hotja by Verhovnyj Sud

slushat’.”

175

participation, courts’ perceived closeness to the dictator and centrally-promulgated

laws o�ered them hope for a potentially better outcome in higher courts.

Those in the higher-income bracket, as best could be determined from dress,

property value, and whether or not an attorney was present, appeared – as anticipated

– very infrequently in court. Among the rare cases that I witnessed, one involved a

failure to pay any compensation at all. In it, a woman’s garage was seized for a

roadway expansion, and she never received the money she had been promised. The

local-level judge had ruled against the akimat in this case, and ordered them to pay

the plainti�; the appeals court judge subsequently upheld that ruling in full, and

verbally reprimanded the akimat’s representative to boot. During the hearing, he

responded to her protest that the akimat had done something wrong by asking if

she preferred that he open a case in the administrative court for illegal expropriation

instead (Ethnography, Astana, 11/2015). In a subsequent interview with the woman’s

attorney, she stated that she generally only accepted cases that she expected would

be successful (and the case I witnessed was among those). Moreover, she stated

that in cases involving state o�cials, judicial rulings were reliably enforced (Attorney

Interview 23, Astana, 12/2015). In other words, this case reflected the expectations

outlined in Propositions 3a & b; litigation was motivated by the expectation that

the court would provide an e�ective remedy against local o�cials’ actions. However,

because this was a single case, support for these two points should be qualified, and

further research is required.

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5.5.2 Why Do They Go to Court?

As the propositions outlined previously in this chapter demonstrate, there are two

compelling potential explanations for why citizens go to court. In both, they do so

because they believe there is some likelihood they will receive a better settlement

from the courts than from the akimat. However, in one, that belief stems from their

ability to rely on informal strategies: the use of influential personal connections to

influence their case, or the ability to bribe the judge. In the other, their motivation is

more akin to gamblers at a casino; they acknowledge that it is very di�cult to combat

state o�cials, but still believe there is some chance that courts will uphold law and

legal reasoning. I use a combination of accounts from those involved in court cases

against the akimat, accounts of similar land disputes in mass media, and observational

and experimental survey data to examine these two explanations in greater depth.

These data complement one another; the experiments test whether informal strategies

increase the probability that respondents will choose “going to court” as a strategy

in response to expropriation, while the qualitative accounts provide insight into less-

sensitive reasons for their participation. I find no support for either proposition that

informal strategies influence who decides to go to court, and strong evidence for the

hypothesis that a ‘gambler’s luck’ might pay o�. Among the latter group, evidence

suggests that trust in the central government and education play an important role

in motivating their optimism. However, the ability to draw on personal connections

increases the confidence of those who already believe they have a chance at success.

For those individuals who find themselves subject to property seizure, going to

court constitutes a rational, economically-driven decision. All but one landholder

(Landholder Interview 12, Astana, 12/2015) faced with seizure stated that they were

177

not trying to fight the seizure itself; they acknowledged the authority of the state to

take property for public needs. Even when they suspected or knew that those takings

were for personal profit or commercial purpose, their resistance was muted. However,

both interviewees and court participants consistently used the same language when

asked what they sought in court: “equivalent (ravnotsenaya)” compensation (Ethnog-

raphy, Astana, 9-12/2015).

Table 5.2: Responses toSeizure

#StrategiesMean 2.84Median 3S.D. 1.63

This drive to reduce their losses motivated them to try

their luck in court. Alternatively, they faced dislocation

and a severe decline in their living standards: because

the compensation o�ered by the akimat was insu�cient

to purchase anything of comparable size within the city

limits, households faced a choice between relocating to

a rural village, purchasing a far-smaller apartment, or

renting in an extremely expensive rental market (with-

out any ability to save for a future housing purchase). One respondent recounted

how his brother, who lived in the same neighborhood and had accepted the initial

compensation, was forced to go from a multi-room house with a garden, to living with

his wife, three children, and parents in a single-room apartment without any installed

plumbing (Landholder Interview 6, Astana, 10/2015). He therefore decided to fight

for more compensation in court, and expressed hope that the judge would uphold the

rules outlined in the Land Code.

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In the survey of landholders in Almaty and Shymkent,74 the experiment provides

no support for either Proposition 3a or Proposition 3c: having an informal connection

in court is nowhere close to being a significant predictor of the choice to go to court,

and there is no di�erence between the treatment and control groups in the bribery

question. In other words, as Table 3 shows, individuals in the treatment group in

the vignette experiment – where their “cousin” had a high-level connection to the

court – were not any more likely to recommend that the cousin go to court against

the akimat. There is also no distinction between the treatment (“bribe the judge”)

and control groups in the item-count question (Table 4), indicating a similar lack of

support for the idea that bribery is prevalent in citizen-state disputes (and thus a

possible reason why citizens go to court).

Table 5.3: Choosing Court as a StrategyGroup Obs Mean S.E. S.D. 95% C.I.Control 249 .56 .03 .50 .50 .62Treatment 251 .59 .03 .49 .53 .65ATE -.04 .04 -.12 .05

t=-.80 dof=498Pr(Ha: di�<0)=.212 Pr(Ha: di�!=0)=.424 Pr(Ha:di�>0)=.788

Item Count (List Experiment) Question

Interviewer: For this question, I’ll read you a scenario. After read-ing the scenario, I will give you a list of options. Please tell me HOWmany of these options you would choose - not which ones, but how many:

Scenario: You received a notice from the akimat that your land and

74There was an issue with the wording of answer choices for the vignette experiments in theAstana survey and their randomization of treatment; therefore, those results are not included here.The survey is being repeated in Astana using the corrected version and randomization strategy, butresults are not yet available. Full results are given for the item count question regarding bribery.

179

the land of your 25 neighbors are being confiscated for state needs, inparticular, to build a school for 400 students which the area badly needs.Nevertheless, the amount of compensation is about 50% of the amountthat your neighbor received a month ago when he sold his land and house– which are almost identical with yours. You refuse to accept compensa-tion, because it is much less than market value, and the akimat is filinga lawsuit against you. How many of the following strategies would youchoose (suppose all of the following options are possible)?

• Try to bribe the judge to make a decision in your favor75

• Hire an experienced lawyer• Call a relative who works at the Ministry of Justice to ask the judge

to make a decision against the akimat• Organize a protest with neighbors in front of the akimat• Write a letter to the President asking him to address the akimat’s

actions• Accept the compensation and eventually leave the land

Table 5.4: Choosing Bribery as a StrategyGroup Obs Mean S.E. S.D. 95% C.I.Control 549 1.98 .05 1.14 1.89 2.08Treatment 551 2.01 .05 1.09 1.93 2.07ATE -.03 .07 -.17 .09

t=-.57 dof=1,098Pr(Ha: di�<0) = .285 Pr(Ha: di�!=0) = .571 Pr(Ha: di�>0) = .715

In contrast, that hope that there is some possibility of receiving compensation is

a highly significant predictor of whether or not individuals choose going to court as a

strategy in these disputes. Odds ratios show that a one-unit increase in respondents’

rating that they are likely to get higher compensation in court translates into them

being nearly twice as likely to choose court as a strategy. Regression analysis also finds

75This is the treatment item.

180

that the control variables which might be expected to influence respondents’ decision-

making in the Kazakhstani context – region and ethnicity – do not significantly impact

respondents’ propensity to choose court as a strategy. A far stronger predictor is

their level of education; having higher education nearly doubles the odds that they

will choose to go to court. In other words, unsurprisingly, individuals with higher

education are far more likely to recommend going to court. However, controlling

for education level does not reduce the significance or size of the e�ect of belief in

the possibility of winning. Nor did robustness checks find any significant impact on

willingness to go to court from the interaction between the experimental treatment

(having a connection in court) and belief that there is a possibility of success. In

short, there is strong evidence to support Proposition 1b, that belief in some chance

of success plays a significant role in driving citizens’ decisions to go to court, regardless

of their ability to draw on informal ties or bribery.

Ethnographic observation shows that belief that ‘playing the odds’ in court may

lead to an increase in compensation is not misplaced. In these civil cases, judges

can either choose to uphold the compensation o�ered by the akimat, strike down the

seizure entirely, or amend the amount based on a new or modified appraisal; appeals

courts check these decisions and can rule similarly. In the 24 district and 16 appeals

cases observed, most rulings retained the original amount o�ered. However, the dis-

trict courts increased compensation in four cases, and the appeals court did so in

three. The median increase was $22,500, but in two (one district, one appeals) it

was increased over $100,000. Similarly, in the Almatinskii Raion neighborhood that I

followed, none of the 31 households that went to court received higher compensation

181

from the district court (Ethnographic, 10/2015). All but one respondent in the sur-

vey who stated they had gone to court in eminent domain-related cases (of 19 total)

refused to answer the question about how their case ended, but the single exception

received a new apartment. In addition, the survey asked respondents if they person-

ally knew anyone whose home had been subject to seizure. One hundred eighty-five

responded a�rmatively; 49 stated that the person went to court, and of those, 20 –

some 40% – received higher compensation, an apartment, or had the seizure stopped.

However, when asked what determined whether courts ruled according to the stip-

ulations of the Constitution and Land Code (which generate higher compensation

estimates) or the Law on State Property (which generates far lower ones), one lawyer

simply grimaced and shook her head (Attorney Interview 23, Astana, 12/2015). In

other words, the probability that citizens will improve their ultimate outcome in the

dispute, while neither certain nor based on consistent legal reasoning, is certainly far

from null.

While connections do not impact the decision to go to court, they do increase

citizens’ expectations of success if they choose to go. A di�erence of means test shows

that respondents in the treatment group were significantly more likely to think that

their cousin would receive higher compensation if he had connections in court; that

treatment increased the perceived likelihood of his success by 7%. These results are

significant at the p=.001 level; moreover, as shown below, the 95% confidence intervals

for the treatment and control groups do not overlap. Robustness checks show that an

interaction between the treatment (connection in court) and belief in some chance of

success (receiving higher compensation) is not significant; thus, the treatment only

182

increases how respondents evaluate the probability of increasing compensation and

does not impact their choice about whether or not to go to court in the first place.

Though it is di�cult to determine whether bribery or connections drives success

in actual litigation, anecdotal evidence supports the idea that they do matter. In

one instance, I was in the car with an attorney as he took a call from a client. That

client had won higher compensation at the district level against the akimat, and

the conversation was about his upcoming hearing in the appeals court. I asked the

attorney if that was an unusual outcome, and he said that it was not infrequent. I

inquired if this individual or any of his other clients might be willing to speak with me,

and he tried to sidestep the question; eventually he stated that, “They would not want

to” (Ethnography, Shymkent, 2015). Other attorneys who provided similarly upbeat

responses about possible success – as opposed to the majority of those I interviewed,

who characterized citizen-state property cases as “proigrayushiie,” or “losing” – had

similar reactions. As a group, they also had much fancier o�ces in more expensive

neighborhoods than other attorneys, frequently drove new or luxury cars or sent

their children to universities in the U.K. or U.S., and universally had prior careers

in the judicial system or Ministry of Justice. That prior experience ranged from

court secretary to prosecutor, and the connections they developed during that time

presumably translated into valuable ties within the courts, or could facilitate their

ability to transmit bribes (while limiting the risk associated with doing so). This

association between ability to provide examples of “successful” land-related cases,

connections within the justice system, and visible wealth – in an environment where

corruption and especially, the use of personal ties, is widely acknowledged – suggests

that their success in part relies on these informal strategies.

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5.6 Conclusion

For courts to serve their ‘management functions’ for the regime, citizens must be

willing to go court against state o�cials. Citizens who do so are driven primarily

by a combination of need and belief that they have some chance of success. Courts

constitute a sometimes-e�ective strategy for citizens to mitigate losses imposed by

the akimat’s seizure of their property for state needs. In essence, they do not need

to believe they are likely to win; instead, belief in some possibility of an improved

outcome motivates their decision to turn to courts. Much like people playing the

slots at a casino, they know that the odds they will hit a ‘jackpot’ (receive full market

compensation for their home) are slim, but hope to come out farther ahead than when

they started. In this sense, the contradictions between the Law on State Property

and the Constitution and Land Code that were outlined in Chapter 3 help encourage

participation. All respondents who had decided to go to court cited the latter two to

support their position in court, and when they received an unfavorable ruling from

the courts, their protestations inevitably highlighted the legal stipulation that there

should be equivalent compensation. Thus, not only does legal ambiguity provide

maneuvering room for judges and the regime, it creates ‘noisy’ information about

the standards the central regime embraces. By doing so, it encourages participation

among those with greater trust in the dictator, and who believe courts (at least,

higher courts) might rule in their favor as a result. Of course, this does not mean

that litigation is necessarily their first strategy. However, top-down policy ensures

that they are re-directed and faced with a choice between court, accepting what

the akimat has o�ered, and the far-riskier option of protest. Understandably, many

choose to gamble on courts.

184

Surprisingly, there was little support for the proposition that either bribery or

informal connections lie behind citizens’ decisions to go to court. Instead, belief and

education predict participation. Initial evidence suggests that trust in the central

regime may contribute to belief as a motivating factor for participation, but further

research is required to confirm this finding. Interestingly, both experimental and

ethnographic evidence confirm that while connections do not motivate citizens to

go to court, they do play an important role in shaping the expected outcome once

there: those who have an ‘in’ in the judicial system are far more confident in their

chances than those without. Moreover, contrary to arguments emphasizing judicial

independence, courts’ dependence on the executive makes them a rational place for

citizens to turn in disputes with local o�cials. It is that close connection which enables

courts to deliver on their rulings, making them a place that ordinary citizens can turn

to for e�ective (albeit, far from guaranteed) assistance in disputes with powerful local

executives. Again, while the likelihood that citizens will receive a favorable ruling is

not high, it is far from zero, and that non-zero probability is not accidental: it helps

ensure citizen participation. Ironically, the fact that this strategy is e�ective means

that citizens’ rational decision-making contributes to the central regime’s e�orts to

stabilize and sustain its rule.

This is not meant to imply that the system is indefinitely self-sustaining, however.

Especially following unsuccessful appeals, some began to question their rights as a

citizen, the degree to which the state broadly writ respected those rights, and conse-

quently, their support for the President and the regime as a whole. As one woman

exclaimed with audible disgust following her appeals decision, “Why, then, do we

185

have the Constitution?!” (Landholder Interview 12, Astana, 12/2015).76 “We’re de-

fendants,” another stated (in Russian, the word “defendant” is derived from the verb

“to answer”). “What should we answer for?! We’re landowners, we received rights to

the land under the law, but were treated like criminals. They’re the ones breaking the

law and the Constitution” (Ethnography, Astana, 9/2015).77 The regime’s reliance

on law, courts, and legal language to manage citizen-state disputes like those over

eminent domain has generated the expectation that law should matter, but when the

way it is interpreted in practice conflicts with how citizens understand its meaning,

it can undermine the regime’s legitimacy and generate a constituency for more im-

partial rule of law. As one man told me disgustedly after his case concluded, “I hate

this country” (Ethnography, Astana, 10/2016).78 “It’s despotism,” said another at

our interview’s close (Landholder Interview 9, Astana, 12/2015). Individual change-

of-hearts like these may not threaten the regime’s legitimacy or stability overtly, but

cumulatively, they contribute to an increasingly visible hollowing-out of support for

a modernization project that excludes most ordinary citizens.

76“Za chem u nas Konstitutsiya togda?!”77“My otvetchiki. Na chto my sami dolzhny otvechat’? My zhe sobstvenniki, poluchili prava na

zemlju pod zakonom, a prevratilis’ kak v pristupnikah. Oni narushajut prava, konstituciju.”78“Ja nenavizhu jetu stranu.”

186

Table 5.5: Going to CourtModel 1 Model 2 Model 3

Higher Compensation 0.61úúú 0.69úúú 0.63úúú

(0.13) (0.13) (0.14)

Connections 0.04 0.05 -0.01(0.19) (0.19) (0.20)

Region -0.02 -0.21(0.22) (0.24)

Sex -0.18 -0.20(0.19) (0.21)

Age -0.01 -0.01(0.01) (0.01)

Higher Education 0.59úúú 0.74úúú

(0.22) (0.25)

Ethnic Kazakh -0.10(0.25)

State Employee -0.31(0.23)

Constant -1.64úúú -1.69úúú -1.34úú

(0.41) (0.59) (0.68)Observations 493 493 448Standard errors in parenthesesú p < 0.10, úú p < 0.05, úúú p < 0.01

Table 5.6: Likelihood of Receiving Higher CompensationGroup Obs Mean S.E. S.D. 95% C.I.Control 246 3.09 .05 .78 2.99 3.18Treatment 247 3.31 .05 .77 3.21 3.40ATE -.22 .07 -.36 -.09

t=-3.20 dof=491Pr(Ha: di�<0)= .001 Pr(Ha: di�!=0)=.002 Pr(Ha:di�>0)=.999

187

Chapter 6: Conclusions

Dictators, like leaders of any large organization, face principal-agent problems,

but because they engage in repression, their ability to collect accurate information is

especially circumscribed (Wintrobe, 1998). Thus, in addition to the twin challenges

of authoritarian power-sharing and authoritarian control (Svolik, 2012), they need

a mechanism to gather information – especially information on the lower-level state

o�cials who handle most of the day-to-day business of governance. Otherwise, they

run the danger that those o�cials will engage in behavior that undermines rather

than furthers their overriding goal of maintaining stability and central control. This

di�culty stems in part from the mechanisms upon which the central regime depends

to rule. In a system where personal ties are paramount and vertically-organized clien-

telism is used to control the state organization, allowing o�cials to benefit personally

from their position plays a key role in motivating their continued allegiance to the

existing order. In other words, corruption is not just “complementary” (Lauth, 2015),

but integral to governance in many authoritarian regimes. This is certainly the case

in Kazakhstan, which su�ers from very high levels of both clientelism and corruption.

Not all corruption is the same, however. While corruption is commonly referred to

as a singular phenomenon, di�erent forms of corruption have distinct implications for

authoritarian control. Some are complementary or even essential for governance, while

188

others undermine the center’s control. Thus, the dictator needs tools that allow him

to discover and manage corruption – without eliminating its complementary varieties.

In Kazakhstan, local executives’ formal authority over eminent domain provides them

with a number of opportunities to profit personally. The dictator is not indi�erent to

which of these ‘schemes’ they engage in, however: some conflict with his preferences,

and others are compatible. This dissertation focused on two common types: the

inflation of appraisals conducted on land seized for state needs (wherein the akims

and others profit from reimbursements from the central government); and the seizure

of land at very low prices for resale at a markup (a kind of “middleman” strategy).

The former diverts money from the state budget intended for infrastructure and other

projects, while latter passes the costs of o�cials’ rent-seeking to ordinary citizens

whose property is seized. As long as those citizens do not engage in activities that

threaten the regime’s carefully-maintained image of stability and control, the dictator

is willing to overlook this type of corruption. Indeed, despite including “middleman”

schemes among the many issues related to eminent domain in an internal report, the

central government has dismissed complaints that local o�cials used their authority

over land rights for commercial purposes (Bajmanov, Jan. 2017). That does not,

however, eliminate incentives for akims to inflate prices for their own profit. Moreover,

finding information on when they do so is di�cult for the regime.

This explains why we see thousands of citizen-state disputes in civil courts in

Kazakhstan, which is exactly the kind of highly authoritarian regime where existing

literature predicts they will be rare. The courts act as a discovery mechanism for forms

of corruption that contradict the regime’s interests, while also gathering information

on local o�cials who have generated citizen frustration. Their utility stems from

189

a combination of structural factors – open appeals, hierarchical organization, and

dependence on the executive – and the authority derived from judges’ close informal

ties to the central regime. These characteristics make the courts a useful clearinghouse

for information on local o�cials’ rent-seeking activities. In doing so, they help identify

those o�cials who regularly violate the dictator’s preferences, and enforce the legal

minimums used buttress claims that the regime relies on impartial legal standards

(and does not support or tolerate o�cials’ rent-seeking).

Funneling the disputes that emerge from local executives’ rent-seeking activities

into the civil courts not only provides information on o�cials’ actions, but also makes

it di�cult for aggrieved citizens to organize protests in response. In this, the courts act

as a divide-and-disperse mechanism; they provide citizens with a chance at reducing

the scale of their economic loss, but in order to make that gamble, they must confront

their situation individually. This makes collective action – already di�cult in any

environment, but especially in one characterized by repression – even more challenging

and costly, and thus unlikely. Dealing with potential protestors by funneling them

into the judicial system allows the regime to economize on repression, and avoids

the legitimacy costs of relying on outright coercion to suppress them. E�ectively,

courts give the dictator with a two-for-one: they provide information that facilitates

management of prinicipal-agent problems, and they mitigate the risks that come from

turning a blind eye to some of local o�cials’ rent-seeking schemes. Civil courts also

sometimes o�er improved compensation to citizens, thus helping ensure the continued

participation needed for them to fulfill these two roles in citizen-state disputes.

190

Law, in concert with civil courts, also plays an important role: it sets guidelines

designed to limit particular types of corruption. New legislation related to politically-

sensitive topics like land communicates the executive’s preferred approach throughout

the state bureaucracy, and while local o�cials can (and sometimes do) ignore these

guidelines, the risk associated with that action is heightened. This shifts o�cials’

expectations about the costs of certain activities; in eminent domain, the introduc-

tion of the 2011 Law on State Property made engaging in a form of rent-seeking that

poaches from government co�ers riskier. Consequently, qualitative evidence suggests

an increased the use of “middleman” schemes; moreover, the central regime has stu-

diously avoided censuring this type of rent-seeking, because it does not contradict

the executive’s preferences. At the same time, Kazakhstani courts have enforced a

legal ‘floor’ by ensuring that landowners do receive some compensation, and censured

o�cials who ignore the rules set by the autocrat. That punishment has extended to

criminal cases. In short, civil law and courts do constrain the state; however, they

only constrain parts of it, and the rule of law they provide is very thin.

This is not a pattern limited to Kazakhstan: in China, land is the largest contrib-

utor to local budgets, and central policy has deliberately allowed the use of eminent

domain to facilitate economic development (Rithmire, 2017). However, it has also

helped the local o�cials in charge of it to profit. Land is a similarly-important source

of revenue in developing countries everywhere from Southeast Asia to Africa. In

economies experiencing urbanization or rapid growth, land seizures are often one of

the largest sources of potential rents that local state o�cials can access, but the

citizens targeted for expropriation often find themselves on the losing end of the de-

velopment that ensues. This is part of why modernization is, as Huntington has

191

famously noted, a contentious and often violent process (Huntington, 2006). In order

to avoid this instability and maintain the clientelist networks that underpin their rule,

dictators can and do turn to law and courts.

Civil courts help manage the relationship between citizens and the state by reduc-

ing the likelihood that protests will undermine regime stability, and the use of law

and courts gives each instance of dispossession a veneer of legitimacy. In other words,

they help dictators address the costs and consequences of relying on corruption to

rule. However, relying on law and courts in this way risks inadvertantly strength-

ening demand for a ‘thicker’ version of rule of law: by insisting that citizens and

o�cials alike use formal legal institutions and organizations to resolve their conflicts

and elevating law in public discourse, dictators help create the expectation that they

matter. They do, but citizens may expect them to matter in very di�erent ways; what

is for the regime an agenda-setting communication targeting state o�cials is for them

a statement that conflicts with the rights the dictator included in the constitution.

That constitution, moreover, is often elevated in o�cial propaganda as evidence of

the state’s membership in a modern, enlightened international community. Citizens

are not blind to this discrepancy: one landowner who had been dispossessed held a

funeral for the constitution, to highlight the violation of his rights (Landholder In-

terview 9, Astana, 12/2009); others called the regime “despotic” and talked about

how they now “hated this country” (for example, Landholder Interview 8, Astana,

10/2015).79 While individually, these examples have little tangible impact, over time,

their accumulation contributes to a hollowing-out of overall legitimacy and, in a state

79Nenavizhu etu stranu.”

192

that many people increasingly feel “doesn’t respect its citizens,” (Ethnography, As-

tana, 9/2015),80 could help pave the way for future regime change.

80“Gosudarstvo ne uvazhaet svoj grazhdan.”

193

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