When the Law Legitimizes Democratic Backsliding

Law Legitimizes Democratic Backsliding
President Maduro speaking to the TSJ on 7 February 2017, asking for the establishment of an alliance of “the judiciary, the citizen and the executive” while saying the National Assembly was in contempt

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When the Law Legitimizes Democratic Backsliding

Typically we think democratic breakdowns involve coups or civil wars. However, democratic erosion “happens over time. It takes years for an executive with hegemonic aspirations to succeed in eroding democracy.” Moreover, democratic backsliding frequently happens within the constraints of constitutional law. Viktor Orbán, Hugo Chávez, and Recep Tayyip Erdoğan all used legal means to turn democracies into autocracies. While they all made substantial revisions to their constitutions, they used legal mechanisms to make those changes.

Authoritarianism does not need to violate the letter of the law. Rather authoritarians turn the law against democracy itself. They alter election laws so they become neither free nor fair. They restrict the space available for free expression. Leaders like Orbán do not need to violate the law when they have the power to craft the law to suit their needs. After Orbán won a two-thirds majority in parliament, his party, Fidesz, rewrote the constitution and redrew the electoral map for parliamentary districts.

Hugo Chávez and Recep Tayyip Erdoğan also consolidated power through constitutional reform, but also through new laws and appointments. Indeed, it was the opposition who pursued extraconstitutional means to remove them from power. In both Venezuela and Turkey, the military staged unsuccessful coups to remove Chávez and Erdoğan from power. However, the leaders survived and used the opportunity to consolidate their power even further.

The law is not a shield to protect a democracy from backsliding. Rather, aspiring autocrats can craft laws, amend constitutions, or even entirely rewrite them to consolidate their power. The American Constitution has provided a solid framework for democracy in America. However, it also contains legacies of authoritarianism. Indeed, most democracies remain vulnerable to democratic erosion. Sometimes the law even legitimizes democratic backsliding.

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