Autocratic Legalism 2.0

Fabio de Sa e Silva

University of Oklahoma

This blog symposium and our VRÜ/WLC special issue featured country studies that examined the relationship between law and democratic backsliding in Brazil, India, and South Africa (BISA), linked to comparative efforts considering Hungary and the US. The aim was to test the primary assumptions established in earlier studies of autocratic legalism, namely:

• Elected leaders with autocratic tendencies actively work to undermine the “liberal content of constitutionalism” to consolidate power, making their countries shift from liberal democracies to electoral autocracies.

• To undermine this liberal content, consolidate power, and bring about regime change, these leaders systematically use the law.

• This systematic use of the law is focused on high-level, formal legal changes, such as constitutional amendments and statutory reforms, which make national legal orders inconsistent and more susceptible to manipulation for power-grabbing.

Our studies supported the idea that law has become a powerful tool for undermining democracy. However, they also documented various forms of political change and diverse ways in which law supports this change. They also challenged the interdisciplinary configuration and geopolitics of knowledge in the field of autocratic legalism/law and democratic backsliding.

In this concluding post, I expand on these points and outline a framework for future studies in the field, which I refer to as autocratic legalism 2.0.

Political Change

 In all the countries examined in the Project on Autocratic Legalism (PAL) studies, the liberal content of constitutionalism is being eroded. However, the binary of liberal democracies––electoral autocracies is insufficient to fully describe the political changes occurring in these countries. In Brazil under Jair Bolsonaro, South Africa under Jacob Zuma, and the U.S. under Donald Trump, the quality of liberal democracy was undeniably diminished, but this did not lead to autocratization. Meanwhile, India has reportedly become an electoral autocracy, but PAL scholars argue that there is more to the situation than what is encompassed by the term “autocratization.” In India, Narendra Modi and his Bharatiya Janata Party (BJP) exercise power based on a Hindu-nationalist ideology and with the backing of mass organization and participation in the regime. In this type of regime change, the center of gravity is ideology rather than the leader, and the goal is to reshape society and the state according to that ideology.

Earlier studies on autocratic legalism avoided examining political changes beyond the “liberal content” of constitutionalism. In Hungary, Viktor Orbán's platform, for example, includes strong religious, ethnonationalist, and gendered components, while in Russia Vladimir Putin's is centered on ideas of state sovereignty and tradition. However, scholars believed that these were just populist rhetoric used to win elections. In our special issue and this IACL blog symposium, Scheppele reiterates that we should distinguish between the promotion of ideology and autocratization via law.

The PAL findings suggest two reasons why this distinction should be reconsidered. First, rhetoric often translates into policy, which adds to what constitutes a regime change beyond the obvious and visible concentration of power in the hands of an individual or the executive. Second, countries under examination may adopt richer conceptions of democracy and constitutionalism, such as all three BISA countries whose constitutions were once celebrated with optimistic labels like “transformative” or “citizenry’s.”

Uses of Law

Previous studies on autocratic legalism focused on formal, high-level legal changes, such as constitutional amendments or key statutory reforms, as tools for power consolidation. However, PAL studies have revealed that anti-democratic leaders also utilize other ways to deploy the law in their efforts to remake states and societies. These tactics include affecting middle or lower levels of legal systems through decrees and executive orders, and maneuvers in the shadow or gaps of existing laws.

There are several reasons why leaders may resort to such maneuvers instead of formal legal changes. Sometimes, leaders lack support in Congress to achieve significant constitutional or statutory changes. In other cases, formal legal changes may not even be necessary, as norms on the books can support the goals of autocrats, who can decide to activate or mobilize them further. Additionally, countries may have adopted liberal laws, but institutionalized practices that are antithetical to those laws may coexist, which incumbents can strengthen and expand. 

Finally, presidents or prime ministers can subvert the legal landscape in which they operate by refusing to follow customary or unwritten rules of political conduct or by tweaking reigning interpretations of existing laws, respecting the letter of the law but violating its spirit and confusing citizens and observers.

Areas of Knowledge and Research Approaches

The PAL studies reveal new forms of regressive political change and new ways in which law supports such processes, which require interdisciplinary knowledge for researchers to address. Several disciplines can contribute to this effort:

• Political economy can help researchers understand the distributional effects of autocratic legalism more fully, i.e., who gains and who loses from the legal-political order it produces.

• Sociology and anthropology can illuminate the maneuvers used by anti-democratic leaders to push polities away from democracy in the shadow of or amid gaps in existing laws, and the extra-institutional reach of these processes, i.e., how they might be connected to ‘ideologies’ and ‘mass social organization’ outside the state.

• History can help explain how the ability of current leaders to use law to assault democracy is best understood as a product of historical (dis)continuities.

• Comparative studies, in particular the “slow comparison” proposed by Dann, Riegner, and Bönnemann, can help scholars capture and contrast “distinctive experiences” with law, democracy, and democratic backsliding within and across their countries of study. 

 Geopolitical Breadth 

Initially, both earlier studies and the PAL project focused on young democracies in the Global South. However, as the PAL project progressed, it became evident that there were advantages to broadening the spectrum to include consolidated democracies, namely the U.S. 

This trend is part of a broader movement in studies of democratic backsliding, and it is motivated in part by the rise of Trump and the January 6th, 2022 attack on the U.S. Capitol. This expansion is momentous, considering previous tendencies to view American democracy as “exceptional.” 

It is still too early to position the U.S. vis-à-vis other cases in this blog symposium and our special issue, although some parallels are already apparent. For instance, Trumpism is growing as a ‘social movement’ with a clearly defined racial/religious underpinning, and it blatantly uses the law to ‘remake’ U.S. society in pursuit of an ideology––just as Modi has done in India.

In the future, scholars should investigate political and legal developments in the U.S. and compare them to those in other countries, but they should avoid using U.S. standards, categories, and socio-legal practices to name and measure phenomena across the board.

Broadening the Analytical Repertoire: Autocratic Legalism 2.0

The initial findings of the PAL project suggest that there is a need to expand the analytical and epistemological repertoire of autocratic legalism studies as outlined in the table below.

Objects of study, domains of inquiry, epistemological attitudes	Autocratic legalism 1.0	Autocratic legalism 2.0 (additions to repertoire)
Political change	From liberal democracies to electoral autocracies	From higher-intensity to lower-intensity democracy  Resistance to change
Uses of the law	High-level, formal legal change	Middle- and lower-level, formal legal change Maneuvers in the shadow of or amid gaps in existing laws
	Of legislative nature	Of executive nature
	In support of regressive political change	In resistance to regressive political change
Areas of knowledge and (inter)disciplinary traditions of inquiry	Constitutional law and political science	Administrative Law History Sociology Anthropology Political Economy Comparative Studies
Geopolitical breadth	Young and transitional democracies	Consolidated democracies
	Transnational links

Autocratic legalism 2.0 encourages research that examines political changes that move countries from higher to lower forms of democracy, including downgrades in both the liberal and substantive content of legal-political orders. It also focuses on legal tactics that support regressive political changes, not just high-level, formal legal changes, but also middle- and lower-level formal legal changes and maneuvers in the shadow of existing laws. Moreover, autocratic legalism 2.0 includes an investigation of resistance to regressive political changes and how the law has been used, if at all, to resist them. 

 To address these new themes, interdisciplinary contributions from areas such as administrative law, history, sociology, anthropology, political economy, and comparative studies are required, in addition to political science and constitutional law.

Furthermore, autocratic legalism 2.0 requires in-depth studies and cross-case comparisons that extend beyond young and transitional democracies to include “consolidated democracies” like the U.S. It also emphasizes the importance of transnational links in promoting and resisting regressive political change through law.

Although autocrats may prefer to implement high-level constitutional and statutory changes to consolidate their power, this is not possible in many countries. By expanding the scope of autocratic legalism studies, a more comprehensive and coherent field can be developed that can analyze, compare, and contrast the varied legal-political experiences and understand the relationship between law, democracy, and democratic backsliding.

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

Suggested Citation: Fabio de Sa e Silva, ‘Autocratic Legalism 2.0’ IACL-AIDC Blog (15 June 2023) https://blog-iacl-aidc.org/autocratic-legalism/2023/6/15/autocratic-legalism-20.