Contrasting Theories of the Political Trial
Before we can use the courts to counter bad political trials, and before we can hope to use political trials to systematically promote plural democracy, we must understand what is meant by the term "political trial." The political trial has been used in a variety of ways in different intellectual traditions. It is employed directly and actively in major political struggles, particularly in underdeveloped nations and by groups struggling for the recognition of certain rights in the United States (e.g., the Gay Rights Movement, the Women's Movement). Consequently, it is used in different contexts, for different purposes, to make different points, and to describe and evaluate different situations and outcomes. 1
Nevertheless, we can identify two broad and contrasting ideas of a political trial. The first holds that in most cases a political trial is clearly identifiable. There are certain necessary and sufficient conditions for the proper use of the term, and certain necessary evaluations follow from these conditions, which are generally negative. This approach to understanding political trials is usually taken by those arguing that no political consideration ever justifies bringing, prosecuting, or concluding a trial. The propriety of political trials is never in question. They are inherently unjustifiable, although they are perhaps inevitable and sometimes work out all right in the end. We will call this the "simple" idea of political trials.
The contrasting idea holds that the meaning of "political trial" is logically and practically problematic. There are degrees of "politicalness" to different trials and trials whose unquestionably political natures are overt or covert to different degrees. The nature of a trial at any given time depends on the