“When democratic governments were overthrown in the past, they tended to be overthrown in a coup—with tanks in the streets and military mobilization. Now, when democracies fail; they fail because you get a charismatic leader who comes not with tanks, but with lawyers.”
-Kim Lane Scheppele
Kim Scheppele— a professor of Sociology and International Affairs at Princeton University — gave a presidential address titled “The Life and Death of Constitutions” on May 30th, at the 2019 Law and Society Annual Meeting in Washington, DC. Dignity was the theme of this annual meeting, organized by the Law and Society Association (LSA), aiming to bring together scholars across disciplines through several mini-plenary sessions that examined the role, place, and visions of dignity in its different forms and through different lenses: judging, austerity, lawyering, the unwritten code of democracy, corruption, and social movements. Scheppele’s speech contextualized dignity as a core concept in many existing constitutions and proceeded to examine its threatened state in the United States and globally. From Trump’s attempts to erode democracy in the U.S. to the rise of the right-wing populism in the European Union and numerous countries in the Global South, the declining health of constitutional democracies tells an important and urgent story in today’s global sociolegal scene: one of autocratic legalism.
What, Then, Is Autocratic Legalism? Roughly a year before the presidential speech that was in many ways foundational to what has grown into the Project on Autocratic Legalism as we know it today, Scheppele wrote a paper on this phenomenon—referring to it as a family of practices where law is used (and abused) with the intent to deconstruct the checks on the power by those with autocratic aspirations. Throughout her work and in her guest appearance on the PALcast, Scheppele evokes a striking image in describing what autocratic legalism does in practice, through what she refers to as a Frankenstate. When Dr. Frankestein digs up bodies and sows up body parts from multiple bodies, what makes it monstrous is not that these pieces were bad in their original context—but when you connect them in a certain way; a monster is produced. This translates to how law can be manipulated in autocratic projects, Scheppele explains: normal body parts are put together to create a monstrous body politic. For those who do not look closely enough, a shell of liberal legality exists––but beneath that shell of democracy and constitutionalism the liberal content is hollowed out.
Javier Corrales, the scholar who coined the term in his 2015 paper on Venezuela, has referred to autocratic legalism as a set of tactics by which chief executives get to concentrate power; and that includes the use, abuse, and the non-use [desuso in Spanish] of law. Corrales exemplifies autocratic legalism through Venezuela under Hugo Chávez (1999–2013), a case of a hybrid regime that rapidly moved toward increasing authoritarianism. Scheppele certainly engages with Corrales’s work in her examination of autocratic legalism; but in doing so she dives deeper into the practical, structural implications on governance. These implications—a cluster of practices and the legal consolidation of power those with autocratic tendencies carefully construct— require urgent attention, Scheppele said in her presidential speech.
Debating PAL into Existence: “At times of crisis, scholars need to enter the public sphere by recommitting to dignity as a core value.” Scheppele’s speech inviting scholars to expose the contradictions and falsehoods beneath the shell of liberalism in today’s eroded constitutional democracies certainly resonated with many. “There was a large contingent of Brazilian scholars and those closely monitoring the sociolegal and political scene in contemporary Brazil in attendance at the LSA’s meeting”—David Trubek, one of PAL’s Expert Advisory Panel members notes. He recalls how Scheppele’s framing of autocratic legalism “gave shape and name” to what they were perceiving in Brazil at the time. These scholars, who were worried about the rise of illiberalism in Brazil and elsewhere, now saw a clear map in connecting this phenomenon with law and quickly gathered a team based at Fundação Getulio Vargas Law School in São Paulo.
This marked the beginning of systematic research of the Jair Bolsonaro’s government through the lens of autocratic legalism—and has culminated, among other things, in a forthcoming book of essays that will be published later this year in both English and Portuguese. “Brazilian scholars were quickly joined by others from India and South Africa who were interested in collaborative sociolegal research in the Global South”, adds Fabio de Sa e Silva, one of PAL’s key Management Team members.
PAL Today What began as a series of debates and conversations the concept of autocratic legalism made possible grew into an international network of scholars spread across time zones and sociolegal contexts. Today, in its multifaceted existence as an International Research Collaborative and a Global Collaborative Project Topical Laboratory with growing online presence, the Project on Autocratic Legalism is dedicated to monitoring and understanding the complex interplay between populist authoritarianism and law in Brazil, India and South Africa—three countries democratized in the 20th century regarded as successful examples of democratic consolidation until finding themselves at the autocratic turn of the 21st century. Many of PAL’s findings are yet to be published and important comparative research is being produced as you read these lines.
In today’s globalized world threatened by illiberalism and democratic backsliding, research conducted by networks of scholars from the Global South brings clarity and unique perspectives shedding light on a phenomenon so important for the future (and dignity) of endangered constitutional democracies.
“Law is too important to be left to lawyers only”, Scheppele reminded us in her PALcast conversation with de Sa e Silva; and citizenry trained to recognize and resist legal autocrats can make a difference.
In its current work and moving forward, PAL is dedicated to further diversifying and expanding research on autocratic legalism and strengthening its interdisciplinary, comparative, and global nature.