Thinking Through Autocratic Legalism: Symposium Introduction

/

Fabio de Sa e Silva

University of Oklahoma

2019 should have been a great year for Brazilian academics. Their lives had not yet been disrupted by the pandemic, the exchange rate between the Brazilian real and the US dollar was reasonable, and there were still public funding sources for research—all of which meant they could travel and attend academic conferences within the country and abroad. And many of them did so, in fact, to participate in the annual meeting of the Law and Society Association (LSA) in Washington, DC, themed around ‘rule and resistance,’ the last in-person event the Association held until its Global Meeting in Lisbon in 2022.

While these Brazilians had every reason to have a great time in DC, their faces and conversations expressed anything but joy. Jair Bolsonaro, a former army captain who became (in)famous for his remarks favoring military rule; for insulting women, Afro-Brazilians, and indigenous peoples; and for inciting violence against his opponents, had just been elected President. Bolsonaro’s first words after the initial tabulation of votes made it difficult to ignore his authoritarian leanings. In his usual histrionic tone, he admonished his critics that “if they want to stay here [in Brazil], they will have to conform to ‘our laws’; either they leave or they will go to jail. These scoundrels wearing red [the color of his opponent Lula da Silva’s Workers’ Party] will be banished from our nation ”. Hence the anxiety and uncertainty predominant among the Brazilian LSA attendees. ‘Save me a spot as a visiting scholar or such if I ever have to go into exile’ was a joke I heard multiple times during that meeting. However, time would show that for some this was no joke. Suppression of academic freedoms increased sharply in Brazil under Bolsonaro’s rule, and indeed some scholars felt compelled to flee the country. 

It was in this atmosphere that many of those Brazilians gathered for one of the meeting plenaries, in which the then-LSA president, Kim Lane Scheppele, delivered the traditional presidential address. Scheppele’s point in that address, by now, is well-known to legal and sociolegal scholars and even the public at large: democracy no longer dies via military takeovers but rather through elected officials who systematically attack and ‘hollow out’ the same institutions that enabled their rise to power. Central to these attacks are legal reforms that make it increasingly difficult for political minorities and opposition groups to compete and win elections. This legalistic form provides current autocrats with a unique veneer of legitimacy and enables them to rule more effectively and under fewer constraints than their predecessors. Civil society, democratic institutions, and international actors notice these key power-grabbing moves only when it is too late and they are difficult to resist. Following Javier Corrales, Scheppele  called this phenomenon “autocratic legalism”.

For the Brazilians in the room, Scheppele’s speech made things suddenly cohere. Going forward, they should pay close attention to Bolsonaro’s use and abuse of the law. For these Brazilians, the LSA meeting itself became a research workshop experience. Over lunches and informal gatherings, and encouraged by David M. Trubek—an emeritus law professor from Wisconsin with strong professional and personal ties with the Brazilian sociolegal community—they began to identify topics and contributors to an in-depth study of Brazil under Bolsonaro in what, in homage to Scheppele, they labelled the Project on Autocratic Legalism (PAL). 

Brazilians attending LSA also quickly learned, however, that they were not alone in their concerns. Scheppele’s speech had strongly resonated with others in countries like India and South Africa, where undemocratic winds were also blowing. These scholars were also very interested in comparative and collaborative work centered on the ‘Global South’ (the former Soviet bloc/Eastern Europe, Latin America, Africa, South Asia), which the LSA was seeking to promote. PAL grew into an LSA International Research Collaborative (IRC), bringing together scholars from those three countries (Brazil, India, and South Africa), as well as advisors (“Mavens”) based in the United States, France, and Norway. PAL also inspired a Podcast (PALcast) where experts in law and democratic backsliding were interviewed and some of the project’s research has been showcased. In 2021, PAL was selected as a pilot topical laboratory in the LSA’s Global Collaboration Program; moreover, between 2021 and 2022, it set the stage for a series of other research ventures covering new countries and topics, as well as transnational activities carried out in attempt to resist anti-democratic turns around the world.

In 2022, efforts by PAL researchers began coming to fruition in scholarly form. A review essay I drafted in the PAL context was published in the Annual Review of Law & Social Science, while the proceedings of a roundtable coordinated by Deepa Das Acevedo was published in the Jindal Global Law Review. By the end of that year, the German journal Verfassung und Recht in Übersee (VRÜ)/World Comparative Law published a special issue with PAL country studies from Brazil, India, and South Africa (BISA), linked to initial efforts to locate those stories in a broader comparative perspective (hence, the special issue also includes studies of Hungary––a case that Scheppele  treats as “archetypal” of autocratic legalism––and the United States––a country long deemed “exceptional”, the beacon of the “rule of law” and almost immune to autocracy). 

This Symposium presents some of the findings from the studies featured in the VRÜ/WCL special issue.

In the first post, focusing on Brazil, Marta Machado and Raquel Pimenta will demonstrate how the Bolsonaro administration's aggressive assault on democratic institutions and processes has tapped into lingering remnants of authoritarianism that persisted even after the country's transition to democracy. Corruption and police brutality are two key areas that the authors identify as being central to this phenomenon. They note that these hybrid legal systems pose both empirical and analytical obstacles to the study of autocratization, linking the Brazilian case to other instances of democratic regression around the world.

In the second post, Dennis Davis will observe that the 1996 South African Constitution's democratic commitments have been considerably eroded in the past two decades. Davis examines how the ruling party, the African National Congress, adopted a strategy known as “State Capture”, which repurposed crucial constitutional safeguards into tools for sustaining the rent-seeking activities of a political elite. Alongside the ascent of political populism, persistent inequality, and the entrenched interests of traditional leaders, these circumstances could lead to the displacement of constitutional democracy by a variant of autocratic legalism.

In the third post, Rick Abel will explore the legal disputes that were waged by former US President Trump and his administration in the court system. Abel argues that the critical lesson to be gleaned from the tumultuous period is that law is inherently intertwined with politics. As elected officials nominate judges and government attorneys, the protection of democratic values ultimately hinges on the power of the electorate to shape policy through the ballot box.

The Symposium is closed with two cross-cutting pieces. In the first one, Kim Scheppele will reiterate that law matters for the construction of autocratic rule. She argues that aspiring autocrats may use a combination of formal and informal legality, exploiting pre-existing weaknesses in the system and personalizing the regime––however, they only come to entrench themselves in power once they are capable to carry out formal legal change. 

In the last post, I will outline broader lessons learned from the PAL project to guide future research on law and democratic backsliding, leading to a framework I call autocratic legalism 2.0. 

  • I begin noticing that future scholarship must move past the binary liberal democracies––electoral democracies to study the political changes countries are undergoing, in which attacks on the liberal content of constitutions to enable power concentration in the hands of an individual autocrat are only      some of the possible outcomes.

  • I also notice that scholars must consider a broader spectrum of legal changes supporting political transformation, which includes: 1) high-level, formal legal changes; 2) formal changes at the middle- and lower-level of legal systems; and 3) maneuvers in the shadow of or amid the gaps in existing laws. 

  • Accordingly, I claim that future studies on law and democratic backsliding must broaden their (inter)disciplinary backgrounds and the traditions of inquiry they draw upon to include not just constitutional law and political science, but also administrative law, history, sociology, anthropology, political economy, and “slow comparisons”. 

  • Lastly, I notice that future studies must broaden their geopolitical spectrum to include both transitional/young democracies and consolidated democracies.

We hope that the IACL readership will enjoy reading our findings and provocations. We look forward to feedback from this thoughtful community!

Fabio de Sa e Silva is an Assistant Professor of International Studies and Wick Cary Professor of Brazilian Studies at the University of Oklahoma in the United States.  

Suggested citation: Fabio de Sa e Silva, ‘Thinking Through Autocratic Legalism: Symposium Introduction’ IACL-AIDC Blog (30 May 2023) https://blog-iacl-aidc.org/autocratic-legalism/2023/5/30/thinking-through-autocratic-legalism-symposium-introduction.