Foundations of Law & Society
Kim Scheppele (2018) “Autocratic Legalism.” University of Chicago Law Review 85:544.
Scheppele’s paper walks us through the emergence and strategies of so-called ‘legalistic autocrats’, who are charismatic leaders elected democratically at first, but then they centralise all powers in one hand – removing accountability and the checks and balances of legislature, executive and judiciary – while also eliminating the democratic rights of the public as well. Scheppele also tries to help us with a guide to how to spot these figures in politics, and ‘catch’ them ‘before autocratic constitutionalism becomes fatal’ (p. 545).
This guide to spotting the autocratic legalist contains the following. First, we should be warned about an actor who is publicly accusing institutions who hold him/her to account. For instance, in Hungary, Viktor Orbán has been actively reshaping the constitution without checks (granted by the constitutional supremacy that comes with 2/3 majority in parliament) regularly since 2010 (Makszimov, 2022). There is no power that can stop him from changing the constitution of Hungary – which is unimaginable in the United States, for example, if we only think about the second amendment and the debate around.
Second, we must be concerned when the legalistic autocrat sets democracy in conflict or competition with constitutionalism. From liberalism, the discourse is more shifted towards legalism. For instance, Orbán – and other legalistic autocrats – formally protect the institutions of liberalism, while underneath, they have turned them all into their own. In Hungary, where I am from, for instance, the constitutional court as well as the president are people from Orbán’s Fidesz party, while officially these institutions are separate. And liberal constitutions are threatened ‘when the rules of the game are themselves gamed.’ (p. 569)
Third, legalistic autocrats will tend to justify themselves through democratically winning elections. This way, they use liberalism itself as a reasoning. Also, they like to contrast values with one another. For instance, Orbán has been creating a fight of values between liberalism and illiberalism, via putting the term ‘freedom of speech’ in contrast with ‘respect for the dignity of others’, or more recently, the ‘protection and rights of children’ in contrast with ‘the freedom of gender identity’ (Rédai, 2022).
Finally, legalistic autocrats will try to get rid of their opponents in power, and use the language of ‘exceptionalism’, e.g., due to COVID-19 or the war in Ukraine, to justify the need for special actions in a ‘state of emergency’, or for example, rule by decree, as President Orbán has been declaring since 2020 (Korkut, 2020; Gijs, 2022). Members of the opposition lose their jobs, their districts do not receive support, or else. For instance, Orbán has introduced ‘special taxes’ for municipalities to tackle the economic issues caused by the pandemic, but then financially supported (returned the taxes) to Fidesz-led municipalities, while not the others. They also capture other powers, such as non-profit organisations, the media, or support the Church, before potentially starting militarisation. And Orbán is not alone in the world, with all these examples.
Regarding the future, what lawyers in constitutional law can do is, they must dig into the new autocracies’ operations. Then, we all, those aware, need to educate others. The citizens, the students, the voters. Lastly, learning from the power of law, law shall not be left completely up to lawyers, but others should be able to shape it, too.
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