By now, we know the pattern: A constitutional democracy, flawed but in reasonably good standing, is hit by a transformative election. A charismatic new leader comes to power, propelled by the growing impatience that the electorate feels with things as they are. The leader promises to sweep away the dysfunctions of partisanship, gridlock, bureaucracy. He claims to call things by their right names and to speak the unspeakable. He rails against entrenched power, entrenched people, entrenched structure. He rallies the people by assuring them that the state belongs to them, only them. He wins an upset victory over the establishment forces and starts a constitutional revolution.
Around the world, liberal constitutionalism is taking a hit from charismatic leaders like these whose signature promise is to not play by the old rules.
Some constitutional democracies are being deliberately hijacked by a set of legally clever autocrats, who use constitutionalism and democracy to destroy both.
When electoral mandates plus constitutional and legal change are used in the service of an illiberal agenda, I call this phenomenon autocratic legalism. (This phrase was first used by Professor Javier Corrales to describe Hugo Chávez’s rule in Venezuela.)
Methods and madness
How does one recognise an autocratic legalist in action? One should first suspect a democratically elected leader of autocratic legalism when he launches a concerted and sustained attack on institutions whose job it is to check his actions or on rules that hold him to account, even when he does so in the name of his democratic mandate. Loosening the bonds of constitutional constraint on executive power through legal reform is the first sign of the autocratic legalist.
We can spot the legalistic autocrats while they are still consolidating power because they have ambitions to monopolise power and tend to use the same toolbox of tricks.
Liberalism, constitutionalism, and democracy
Legalistic autocrats operate by pitting democracy against constitutionalism to the detriment of liberalism.
Until recently, illiberal leaders rejected liberalism, constitutionalism, and democracy as a package. The classic twentieth-century dictators opposed “liberal democracy” in favour of invocations of “peoples’ democracies” steered by a “vanguard party.”
Political orientation in such a black-and-white world used to be easy. Liberals were in favour of constitutionalism and democracy, and illiberals were against both. One could therefore reliably guess that a democratic and constitutional government would necessarily be liberal in practice. But that is precisely what autocratic legalism changes.
It has been said that hypocrisy is the tribute that vice pays to virtue. The new legalistic autocrats enthusiastically support elections and use their electoral victories to legitimise their legal reforms. They use constitutional change as their preferred vehicle for achieving the unified domination of all of the institutions of state. Like the hypocrite, they befuddle their critics by pretending to support many of the same values their critics do. And, like the hypocrite’s misleading statements, their deployment of public values is meant to disguise that they intend just the opposite.
Instead of operating in the world of liberalism, then, autocratic legalists operate in the world of legalism.
But even when legalism undermines constitutionalism, it provides a backhanded tribute to the very constitutionalism it undermines. If making laws in a proper way were not so important for generating political legitimacy, the autocrats would not have bothered being so legalistic.
They have learned to speak the language of democratic constitutionalism while identifying its resonant-frequency points of tension and complexity in order to reverse its effects. When one points out that they have gutted liberalism in their defense of democracy, the legalistic autocrats point to examples in which some other constitutional democracy has done the same thing on some particular point without being attacked as a failed democratic or constitutional state.
Because they deploy the rhetoric of democracy and the methods of the law, observers find it hard to see the danger until it is too late.
Tactics of the legal autocrats
How do the new autocrats get away with transforming liberal democratic constitutionalism into pure majoritarian legalism?
The first trick involves reliance on stick-figure stereotypes about illiberalism that are in people’s heads.
There’s the Hitler scenario. Then there’s the Stalin scenario.
In both stick-figure scenarios, the concentration of power is brutal, complete, and completely obvious. Both narratives feature leaders who justify what they are doing in the name of a strong authoritarian ideology. Authoritarian leaders reduce those around them to puppets, brook no dissent, and leave no opposition standing.
Of course, history is more complicated than either scenario, and that is precisely the point. The bite-sized takeaway lessons from the two signature authoritarianisms of the twentieth century constitute the modern repertoire of signals that the public will recognise as dangerous.
The new autocrats know this and avoid repeating those well-known scenarios that will attract immediate and overwhelming reaction. They take a kinder, gentler, but, in the end, also destructive path. Their weapons are laws, constitutional revision, and institutional reform. Their ideology is often flexible. And they leave just enough dissent in play that they appear to be tolerant.
Instead of a scorched-earth policy that obliterates all opponents, one will find in these autocratically legalistic regimes a handful of small opposition newspapers, a few weak political parties, some government-friendly NGOs, and perhaps even a visible dissident or three (albeit always denigrated in the government-friendly media with compromising information — real or fake — so that hardly anyone can take these dissidents seriously). There is no state of emergency, no mass violation of traditional rights. To the casual visitor who doesn’t pay close attention, a country in the grips of an autocratic legalist looks perfectly normal. There are no tanks in the streets.
The new autocrats achieve the look of normality by steering clear of human-rights violations on a mass scale, at least those human rights that have been entrenched in international conventions and many national constitutions.
In keeping with their concern to maintain a legitimate public appearance, it is positively useful for them to appear to have some democratic openness precisely so that they can claim that they are not authoritarians of the twentieth-century sort. They therefore tolerate a weakened opposition and other democratic signs of life, such as a small critical press or a few opposition NGOs, to demonstrate they have not completely smothered the political environment with their autocracy.
The new autocrats will therefore not look like your father’s authoritarians who want to smash the prior system in the name of an all-encompassing ideology of transformation. Portraying themselves as democratic constitutionalists is absolutely essential to their public legitimation; what is missing in the new democratic rhetoric is any respect for the basic tenets of liberalism. They have no respect for minorities, pluralism, or toleration. They do not believe that public power should be accountable or limited.
In short, liberalism is gutted while they leave the facades of constitutionalism and democracy in place. Election opponents may be harassed with nuisance criminal charges, but they do not wind up in jail, or at least not for long. Civil-society groups may be defunded, but they are not closed by the government. The press that supports the opposition is not censored, but it may be starved of advertising and then bought out by oligarchs connected to the winners. The elections that keep the new autocrats in power are rigged in technical ways behind the scenes rather than through obvious tactics that can be spotted by observers, such as ballot-box stuffing. Through these non-violent means, democracy is transformed into brute majoritarianism. The rigged elections — rigged in ways that election monitors cannot see — even prove that the public supports the autocrat!
The casualty here is liberalism, even as the external appearance of democracy and constitutionalism remain in place.
What is to be done?
As the new autocrats get more and more clever, deploying law to kill off liberalism, constitutionalists need to educate ourselves and democratic publics about liberal constitutionalism.
First, those of us who work in the field of constitutional law have to stare into the face of the new autocracy to track in detail how it works. We need to learn to recognise the new signs of danger, which means that we need to get better at documenting the trouble cases and learning from them.
Then, we need to educate others. Civic education needs to teach people to recognise the new signs of danger. Under what circumstances is it safe to trust the appointment of judges to a political process? When is presidentialism a sign of danger? How can the discretionary use of public power for economic intimidation be curbed? Why is the call to draft a new constitution alarming? People beyond the educated elite need to know why these questions matter, and they need to learn how to think about answering them.
Law is too important to leave only to the lawyers. A citizenry trained to resist the legalistic autocrats must be educated in the tools of law themselves. Liberal and democratic constitutionalism cannot remain an elite ideal that has no resonance in the general public; that leaves this public ripe for autocratic legalists to sweep them away in the last remaining exercises of democratic power that the public may possess.
Liberal and democratic constitutionalism is worth defending, but first we need to stop taking for granted that constitutions can defend themselves.
The author is the Laurance S. Rockefeller Professor of Sociology and International Affairs in the Woodrow Wilson School and the University Center for Human Values at Princeton University. Views are personal.
This article is an edited excerpt from the author’s essay ‘Autocratic Legalism’, first published by The University of Chicago Law Review.