The Diseases of Constitutional Democracy

Kim Lane Scheppele

Princeton University

All constitutional democracies have pre-existing conditions that make them especially susceptible to anti-democratic diseases. Unicameral parliamentary systems – like Hungary and Israel – are especially vulnerable to attacks on their judiciaries which bear most of the weight of separation of powers. First-past-the-post electoral districts – as in the US and the UK – are especially vulnerable to minority rule. Crumbling party systems – as in Venezuela and Peru – create openings for unvetted anti-democratic candidates to sweep elections and turn a country in an autocratic direction. In looking up close at failing democracies, one cannot help but be struck by the dazzling variety of ways that they collapse. 

In a 2018 article, I adapted the term “autocratic legalism” from Javier Corrales’ account of the democratic destruction of Venezuela and tried to generalize it to other cases in which aspirational autocrats use law to undermine democracy. Given the variety of ways that constitutional democracies can fail, it would be surprising if they all failed with precisely the same legal tricks. After all, law itself covers a myriad of topics and can be altered in a myriad of ways. The idea behind “autocratic legalism” is that we have to keep our eyes on the law as we document democratic collapse because law is one of the key sites in which democracies are undone. Aspiring autocrats eagerly learn from each other and often adapt legal tricks from another country so that they work in the autocrat’s own system, so sometimes we can track similar changes across regimes. But aspiring autocrats also invent new ways to make or exploit law to their own ends, so innovation is always happening as well. The more we can catalogue the array of legal techniques and tactics used by autocrats as they consolidate power, the better we will understand just how law works under stress. 

The new special issue of VRÜ Verfassung und Recht in Übersee expands the study of autocratic legalism still further – to cover Brazil, South Africa and India in the “Global South.” The special issue also includes new pieces on Hungary and the US to show that sometimes Europe and North America look more like their Global South counterparts than like the Global North “peer countries” that they purport to emulate. I’ve learned a lot from my colleagues and in this post, will summarize my contribution to the issue, attempting to consolidate what I learned from them. 

Beyond Formal Legality

The Project on Autocratic Legalism (PAL) grew out of the Law and Society Association’s meetings and thus sociolegal observations are at the core of the work. As we know from generations of socio-legal thinking, society is always more than law. It’s perhaps the first lesson of the law and society movement that we should never confuse law with reality. But it’s perhaps the second lesson of the law and society movement that we should never assume that society exists without a legal infrastructure. My colleagues have focused on this legal infrastructure, what its preexisting conditions were before the autocratic assault and how those were exploited by aspirational autocrats. 

Global South democracies have had the particular challenge of recovering from colonial devastation combined with a lack of post-colonial resources to live up to their constitutional promises. In Brazil, South Africa and India, constitutional principles had long been honored in the breach and had led constitutional scholars in those countries to be far more skeptical about the promise of constitutionalism even before the latest autocratic challenges. Inadequate state capacity has resulted in the lack of inclusion of all of their citizens in the promises of democratic self-governance. Plus, many Global South democracies had semi-authoritarian rules and institutions in place that never made the transition from colonialism or dictatorship to democracy so that leaders with autocratic ambitions didn’t have to invent new laws to undermine constitutionalism. They could take advantage of the weaknesses already hard-wired into the system, often left behind by previous undemocratic regimes. Once you spot how this happens in the Global South, it’s easy to see some of the same dynamics at play in the Global North. 

Jair Bolsonaro in Brazil, Jacob Zuma in South Africa, Narendra Modi in India, Viktor Orbán in Hungary and Donald Trump in the US all rode broken or exclusionary political parties to the top of their respective political systems and tried to entrench themselves there for the long haul. Such entrenchment is a threat to the very idea of constitutionalism, which relies centrally on the idea of checked and accountable power and which is therefore necessarily tied to democratic institutions through which “the people” can “throw the bums out” when their political demands change. The exclusionary aspirations of these leaders and their followers is also a challenge to the constitutionalist principle that rejects pure majoritarianism by building in protections for minorities, whether defined on the basisc of their ethnicity, race, religion, gender or political viewpoint. The new autocrats typically make majoritarian claims, even if they are only supported by a minority. That alone doesn’t make them autocratic, though. Refusing all checks and rotation of power does. 

While new formal law plays a role in these cases (perhaps more in Hungary than in the others), serious damage to the viability of democratic institutions was often accomplished through exploiting weaknesses in the existing constitutional system. Aspirational autocrats don’t always need to create new law if the law they inherit provides weak points that they can exploit. In short, preexisting conditions matter. They may be different in each case, but when aspirational autocrats successfully exploit these weaknesses, autocracy is not far behind.

Beyond Populist Rhetoric

If one is to believe much of the academic literature, destruction of democracy is largely caused by “populism.” But populism, when push comes to shove, is more about what leaders say than about leaders do. Of course, what leaders say matters. They can demonize and threaten vulnerable groups; they can give implicit permission to use extra-legal means of repression. While populist leaders probably wouldn’t succeed in attracting voters without their disturbing rhetoric – —and therefore it matters for the success of the regime what they say – not all populist rhetoric aspires to lock in autocracy. When autocratically inclined rhetoric does turn into the reality of autocracy on the ground, however, law will most likely be the force that will plant it there. 

As we look across the range of aspirational autocrats, it’s clear that a divide emerges between those who believe their own rhetoric (for example, Modi, whose convictions about the superiority of Hinduism seems genuine) and those who don’t (for example, Orbán or Trump who seem to say whatever will rile up their “base” and annoy their critics). Either way, until aspirational autocrats’ programs are locked in by law, they are “only words” (though sometimes words can have legal effects). 

The idea of autocratic legalism was developed precisely to open up a space for assessing whether what leaders say is what they do. It’s one thing to advocate hateful or dangerous ideas and another to change the political system so that the public can’t get rid of their leaders after the attraction of their rhetoric fades. Of course, hateful rhetoric is also something to worry about, but it is not the same as an autocratic lock on power. 

It is perhaps telling that of the five countries surveyed in this special issue, aspirational autocrats – all of whom rode to power on the basis of powerful populist rhetoric – have been defeated in all but two: Hungary and India. Bolsonaro was voted out of office in Brazil in 2022. Even though he refused to concede and his supporters attacked the main Brazilian institutions in an attempt to restore his rule, he was successfully removed from office. Zuma in South Africa was eventually replaced after a struggle within his own party, and his successor pledged to restore constitutional democracy. Trump was defeated in a hotly contested election and, though he has never accepted his defeat, subsequent elections seem to confirm his unpopularity. As I write, Orbán has been in power for 12 years in Hungary and Narendra Modi of India has been in place for eight. Both are still quite popular with their publics, though less popular than one might imagine. In a country where “none of the above” is often the most popular option, Orbán typically has the solid support of only about one-third of the voters. While nearly three-quarters of the Indian population approve of the job that Modi is doing, only about half of the population indicates that they would vote for him. Given the electoral systems and the weakness of the opposition in both countries, these numbers are enough to stay in power. But Orbán is the only insincere leader to stay in power indefinitely and the only one who used formal legality at every turn to prevent a change of government. Rhetoric may bring leaders to power but it alone cannot keep them there. Law also matters. 

Personalizing the Regime

Autocratic regimes are often personalized. It may not be enough to control the law; it is also crucial to control the people interpreting and using the law. This is why packing courts may be so crucial, as has been the case in Hungary and the US. Because the law does not speak for itself, the aspirational autocrat may want to ensure that those who speak for the law do so with the autocrat’s accent.

Aspirational autocrats often quickly put their people into the job of chief public prosecutor with the goal of holding off any inquiry into their own legal violations (Trump and Zuma) or with the goal of weakening opponents (Orbán and Jaroslav Kaczynski in Poland not covered in the special issue). In places where the military has been important in politics, ensuring loyalty of the top command is crucial (Bolsonaro).

The inverse of personalizing the regime by installing loyalists into key positions may occur too. David Pozen and I explored the idea of "executive underreach," which occurs when leaders destroy the constitutional-democratic state by letting institutions fail. By allowing institutions and rules to fail for lack of personnel, resources and enforcement, aspirational autocrats can undermine constitutional-democratic government without inventing any new legal tools.

Conclusion

Autocratic legalism, in my initial formation of it, may have focused too much on formal legal change and not enough on the surrounding legal culture and the ability of aspirational autocrats to use weaknesses in the constitutional systems they inherited to crash their democracies. In short, autocrats don’t always need wholly new law. Some legal tools were already ready-to-hand when autocrats won their fateful elections and began to deconstruct checks and balances. 

That said, if an autocrat is going to dig in for the long haul, the law must be interpreted, undermined or created to support the autocrat’s consolidation of power. It seems, from the countries surveyed in the PAL essays, that rhetoric alone cannot keep an autocrat in power without being also accompanied by (as Javier Corrales said) the “use, abuse and misuse of law.”

Kim Lane Scheppele is the Laurence S. Rockefeller Professor of Sociology and International Affairs in the Woodrow Wilson School and the University Center for Human Values at Princeton University

Suggested Citation: Kim Lane Scheppele, ‘The Diseases of Constitutional Democracy’ IACL-AIDC Blog (13 June 2023) https://blog-iacl-aidc.org/autocratic-legalism/2023/6/13/the-diseases-of-constitutional-democracy.