All regimes have courts but through so-called ‘autocratic legalism’, autocrats leverage them to consolidate regimes without initially raising red flags. Akudo McGee argues that autocratic legalism flies under the radar with ease, because early warning signs of autocratisation are subtle. Indicators of autocratisation, therefore, need better taxonomies of authoritarianism to work
In her inaugural post in this series, Hager Ali proposes a better scholastic categorisation of authoritarianism. She highlights how authoritarianism becomes a ‘junk drawer’ of things un-democratic. But we have yet to define authoritarianism with the same taxonomic precision that is granted democracy. As a result, some processes of autocratisation proceed almost completely undetected because conspicuous signs of autocratisation (coups, for example) do not happen.
Without differentiating between authoritarianisms, some avenues used by autocrats to consolidate their power, like going through courts, escape detection. Articulating the different authoritarianisms, therefore, is necessary to transcend one-size-fits-all tools for detecting autocracy.
A pandemic of authoritarianism has broken out in recent years. As Hungary and Poland have demonstrated since 2010 and 2015 respectively, not even the EU is immune. V-Dem's 2021 Democracy Report shows Poland is the most autocratising country in the world. The same report places Hungary second on the list.
What immediately stands out about Poland and Hungary compared with other top autocratisers like Myanmar, however, is that their incumbents have a distinct autocratisation strategy. In Hungary and Poland, autocratisation proceeded through so-called ‘autocratic legalism’. By this process, elected parties misappropriate constitutional systems to dismember the rule of law.
The incumbents of Poland and Hungary, unlike those of other top autocratisers like Myanmar, have a distinct autocratisation strategy
Legalistic autocrats exploit their democratically elected positions to posit a narrative which equates majority votes to an official mandate to act on behalf of their country's citizens. Independent courts are co-opted to install party-friendly judges, ready to pass laws the government likes, and reject those they do not. The end goal for these autocrats, like all autocrats, is to make themselves irremovable while consolidating authoritarianism. Eliminating independent courts early is important, otherwise autocrats would be under too many procedural constraints.
Autocrats, however, wish to maintain some apparent legitimacy to help their regimes evade criticism and even detection (for some time, at least). They mask their behaviour under what looks like democracy. Autocrats thus invoke the name of democracy and, in their policies, a mandate to meet the needs of ‘the people’.
The guise of legitimacy is especially important for autocrats who operate within supranational institutions like the EU. This is because other member states and EU institutions can sanction authoritarian policies. The longer autocrats can appear legitimate and avoid condemnation or recognition, therefore, the better.
Autocratic legalism is particularly insidious because by the time authoritarianism becomes obvious to others, it is already too consolidated to easily reverse. On the outside, everything appears fine. Elections occur with multiple parties to choose from. Judges prevail over courts, and newspapers and television continue to bring citizens the news. Cases are still heard and adjudicated (perhaps even according to the law) and any laws proposed by the ruling party go through the courts first. By traditional checklists, nothing is wrong on the surface. Under the surface, however, democracy is withering.
Autocratisation under autocratic legalism is difficult to spot because it is a creeping process; autocrats can claim they are operating within the law
With autocratic legalism, autocratisation is more difficult to spot because it is a creeping process. After all, there are no military coups or sudden regime changes to mark the beginning of a new autocracy. Autocrats can thus claim that they are operating within the law. Additionally, checklists which identify problems such as non-functioning or dismantled courts may miss these autocracies since their courts still function, albeit with (some) judges appointed or hired in dubious ways.
In Hungary, the path to autocracy proceeded legally by changing the Constitution. Viktor Orbán's Fidesz party achieved a constitutional majority in 2010, allowing it – legally – to rewrite Hungary’s constitution. This rule-following behaviour enabled Fidesz to fly under the radar.
In Poland, no such path of action was constitutionally possible. Jarosław Kaczyński’s Law and Justice (PiS) party therefore did the next best thing. PiS made de facto changes to the Polish Constitution through a series of carefully planned sub-constitutional laws. These new laws, particularly the law on the Constitutional Tribunal, defanged the Court and increased government influence over it. As soon as PiS put friendly judges on the Court, the party did not need to draw attention to itself by outright breaking laws. Rather, it could simply pass legislation through the now-friendly Court.
Through this strategy, autocrats can claim to their constituents and international onlookers that legal changes underwent the appropriate processes and that the courts passed them legitimately. Because they are democratically elected, such autocrats escape accusations of coming to, and maintaining, their power unlawfully. But before long, public media becomes unabashedly pro-regime, the civic space is narrowed in such a way that pro-government groups or those with goals adjacent to the government’s are the only ones that can thrive, and the opposition has little hope of dislodging the autocratic incumbent.
Without careful eyes, the severity of autocratisation via autocratic legalism becomes apparent only after autocracies approach full consolidation. The key to timely detection lies in more sophisticated differentiation between autocracies and the problematisation of the ‘junk drawer’ approach to authoritarianism. By understanding how the rule of law can be used to undermine the law, democracy observers can anticipate which legal and constitutional laws and amendments create fertile ground for authoritarianism to take hold.
The key to timely detection of creeping autocracy lies in more sophisticated differentiation between autocracies and the problematisation of the ‘junk drawer’ approach to authoritarianism
Legal changes may not otherwise set off alarm bells because actors outside regimes or militaries are not seizing or consolidating power. Scholars who understand these strategies, however, can quickly see what the endgame is for these would-be autocrats.
Without a lexicon of authoritarianism, we might easily miss these inconspicuous moves. If autocrats are not technically breaking the rules and institutions set up to ensure checks and balances still exist (even in their hollowed-out and puppeteered form), such a lack of distinction has dire consequences in the real world.