Conceptualizing Authoritarian Constitutionalism — A Latin American View

Roberto Niembro

ICON-S, Mexican Chapter

Authoritarian constitutionalism is a new category used by constitutional law scholars to refer to a distinct type of regime wherein there are faulty practices and a constitution with an authoritarian content. With these characteristics in mind it seems contradictory to talk about “constitutionalism”. In this post I introduce a different understanding of authoritarian constitutionalism.

For Mark Tushnet, authoritarian constitutionalism is an intermediate normative model between liberal constitutionalism and authoritarianism that has moderately strong normative commitments to constitutionalism. According to the author, this is a conceptual possibility that has some connection to empirical reality, but not a precise claim about any system.

I want to clarify at the outset that my work on authoritarian constitutionalism is not an empirical work about hybrid regimes. My approach is conceptual. In my opinion, authoritarian constitutionalism should not be used to refer to a distinctive regime, rather it is a concept that refers to a very sophisticated way in which ruling elites with an authoritarian mentality exercise power in not fully democratic states. In this case, the regime’s liberal democratic constitution, instead of limiting the power of the state and empowering those who would otherwise be powerless, is used for practical and authoritarian ideological functions.

At first glance, authoritarian constitutionalism appears absurd and nonsensical. Authoritarianism refers to regimes in which some or all of the following characteristics are present: (a) there is limited pluralism in contrast to unlimited pluralism, (b) there is no extensive nor intensive political mobilization, (c) political power is not legally and/or de facto accountable to citizens even though it can be quite responsive to them, (d) power is exercised within formally ill-defined limits but actually predictable ones, (e) the positions of officials depend in part on the support of a leader or a ruling group instead of the support of citizens, (f) there is an official or a single or privileged party, and (g) ruling elites lack an elaborate or guiding ideology. But constitutionalism means, among other things, limiting the power of the state and empowering those who would otherwise be powerless.

Authoritarian constitutionalism emphasizes the tension between the exercise of power within ill-defined limits, lack of accountability, and how the ruling elite executes and masks its violence under the forms of the constitution, and the idea of constitutionalism. This tension makes authoritarian constitutionalism a perplexing category, but not absurd; perplexing because of the inconsistencies it points out and helps us both understand and critique. These inconsistencies exist between the functions that some constitutional provisions fulfill in a liberal democracy (limiting the power of the state and empowering those who would otherwise be powerless) and the liberal democratic ideology behind constitutionalism, on the one hand, and the functions that those same provisions and a constitutionalist discourse fulfill in authoritarian constitutionalism. It is worth noting that I do not hope to hide or justify these authoritarian functions. On the contrary, this concept is a tool that helps us understand, uncover, and critique those functions. In this sense, authoritarian constitutionalism is normatively attractive as a critical tool.

In authoritarian constitutionalism the provisions that theoretically have the purpose of limiting power or empowering those who would otherwise be powerless are ineffective. Constitutional provisions that theoretically create incentives for powerful actors to control each other and constrain them—separation of powers, checks and balances, federalism, rights and liberties—do not work to limit power or to empower those who would otherwise be powerless. Instead, in authoritarian constitutionalism the constitution is used for other practical functions, such as coordination, eliciting cooperation of the powerless, or gathering information.

Regarding the ideological functions of constitutions and of constitutionalist discourse, I focus on the power-interests it serves and the political effects it generates. This constitutionalist discourse creates an illusion. It is an illusion because even though the constitution is not merely an expression of the needs and will of the ruling class, the interests of the powerless become law because they serve the interest of the ruling elite. Moreover, the conditions that could make constitutional aspirations effective, are hiding and are misidentified by the same constitutionalist discourse.

In some cases, constitutionalist discourse in authoritarian constitutionalism creates the illusion of possible change. For those people, the path taken by the ruling elites would be the right one, although existing conditions make it impossible, and the ones that could make it real are hidden or misidentified. We can say that these people are deluded because they don’t even realize the source of their repression and the implausibility of change, and they are oppressed because they live under social institutions that repress them.

On the other hand, constitutionalist discourse can generate disenchantment with constitutionalism, and people may be disposed to accept an authoritarian regime. In this case, people are enlightened about authoritarian constitutionalism, but they continue to be oppressed. Moreover, they have no interest or faith in any change. In both cases, ruling elites achieved something very valuable: people become inactive and throw away its vigilant spirit.

In my opinion, authoritarian constitutionalism is a category that helps us understand and critique a way in which power is exercised in countries that cannot be considered strictly authoritarian but neither can they be considered fully liberal democracies. Moreover, once we understand authoritarian constitutionalism we can do something to counteract it. Indeed, the final purpose of understanding authoritarian constitutionalism is to open the eyes of those who live in countries where it takes place and to call for their critical contribution.

By Roberto Niembro, cochair of the ICON-S Mexican Chapter. This post is cross-posted from Voelkerrechtsblog as part of a collaboration between Voelkerrechtsblog and the blog of the International Association of Constitutional Law.