The Rise Of Constitutional Authoritarianism: Understanding The Trend

Constitutional authoritarianism is a term used to describe a system of government that employs constitutional law to pursue authoritarian ideas and practices. It is important to distinguish constitutional authoritarianism from authoritarian constitutionalism, as the latter implies that constitutionalism is a characteristic of authoritarianism, which is conceptually inaccurate. Constitutional authoritarian regimes may adopt the institutional trappings of democracies, such as constitutions, to legitimize and strengthen their rule. These constitutions may serve various roles, such as an operating manual or a blueprint for the government, but they do not set direct limits on executive authority. Instead, they can help consolidate the regime's grip on power by inhibiting alternative arrangements. While most authoritarian regimes hold elections, they often manipulate the process to favor the ruling party and maintain control.

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Authoritarian constitutionalism vs constitutional authoritarianism

Authoritarianism is a system of government that concentrates power in a single leader or a small elite, with no established mechanism for the transfer of power and limited political rights for citizens. Authoritarian regimes often adopt the "trappings" of democracy, such as constitutions, to legitimise their rule.

Authoritarian constitutionalism, a term developed by legal scholar Mark Tushnet, refers to authoritarian regimes that utilise constitutions to consolidate their power. Unlike democratic constitutions, these constitutions do not limit executive authority, but they may serve various functions, including legitimising the regime and signalling its intentions. Tushnet cites Singapore as an example of an authoritarian constitutionalist state.

Authoritarian constitutionalism, as a concept, has been criticised as misleading and politically dangerous. Roberto Niembro, for instance, argues that the term emphasises the tension between the exercise of power, a lack of accountability, and how ruling elites execute and mask their violence under constitutional forms.

Authoritarian constitutionalism, in this view, is a critical tool to understand and expose these functions, rather than justify them. Niembro's concept primarily describes how authoritarianism spreads in constitutional legal systems, highlighting that these developments oppose, rather than fit within, the normative concept of constitutionalism.

Constitutional authoritarianism, on the other hand, is a category of authoritarianism that misuses and distorts constitutional institutions to stabilise governments politically. It is a factual description of how constitutional law is applied in semi-authoritarian regimes, rather than a normative concept of constitutionalism.

The role of constitutions in authoritarian states

The concept of "constitutional authoritarianism" was developed by legal scholar Mark Tushnet, who distinguishes between authoritarian constitutionalist regimes and liberal constitutionalist regimes. Authoritarian constitutionalist regimes are characterised by dominant-party states that impose sanctions on political dissidents, allow for open discussion and criticism, hold reasonably free and fair elections, reflect responsiveness to public opinion, and create mechanisms to manage dissent. Singapore, for instance, has been cited as an example of an authoritarian constitutionalist state.

Constitutions in authoritarian states can serve various purposes. They can act as an "operating manual", outlining the functioning of the government, or as a "billboard" signalling the regime's intentions. Authoritarian constitutions may also serve as a "blueprint" for future regime plans or as "window dressing" to obfuscate and disguise a lack of freedoms. These constitutions can help legitimise, strengthen, and consolidate regimes by coordinating government actions and defining popular expectations.

Authoritarian regimes often adopt the "institutional trappings" of democracies, including constitutions, to maintain and strengthen their power. Some authoritarian constitutions may even include rights guarantees, but these are not upheld in practice. This phenomenon is referred to as "sham constitutions". Conversely, some authoritarian regimes adopt "brutally candid constitutions" that forthrightly limit or omit basic rights.

The adoption of a sham constitution allows authoritarian rulers to ideologically appeal to domestic and international constituencies at a relatively low cost. On the other hand, candid constitutions can help resolve coordination problems, allocate power, and reinforce beliefs about government control and the consequences of dissent.

It is important to note that authoritarian regimes exhibit significant variation. For instance, personalist dictatorships are characterised by weak institutions, narrow support bases, and a lack of unifying ideologies. They tend to be more repressive and are more likely to take coup-proofing measures. Additionally, the stability of some authoritarian regimes, particularly in the Middle East, has been attributed to their possession of valuable natural resources, enabling them to co-opt their citizens by distributing rents rather than investing in them or representing their interests.

Examples of authoritarian constitutionalist states

Constitutional authoritarianism is a concept developed by legal scholar Mark Tushnet, who distinguishes it from liberal constitutionalism. Authoritarian constitutions successfully coordinate government action and define popular expectations, ultimately consolidating the regime's grip on power. Unlike democratic constitutions, they do not set direct limits on authority.

Singapore

Mark Tushnet cites Singapore as an example of an authoritarian constitutionalist state, connecting it to the concept of hybrid regimes. Singapore's constitution, while providing for elections, concentrates power in the hands of the ruling party, with the opposition facing various forms of harassment and voters exposed to disinformation.

Post-totalitarian states

The Russian Federation and Soviet Eastern Bloc states in the mid-1980s are examples of post-totalitarian authoritarian regimes. While these states retained totalitarian institutions, they exhibited reduced repression, less personalised leadership, and lower levels of mass mobilisation.

South Korea under Park Chung-hee

South Korea under Park Chung-hee has been characterised as a bureaucratic-military authoritarian regime. This type of regime is governed by a coalition of military officers and technocrats who act pragmatically within a bureaucratic framework.

Sub-Saharan Africa

While there has been only one totalitarian dictatorship in sub-Saharan Africa (in Eritrea), the region has witnessed highly personalistic regimes. Examples include Zaire (now the Democratic Republic of the Congo) under Mobutu Sese Seko (Joseph Mobutu) and Uganda under Idi Amin. These regimes were marked by absolute power exercised by the leader, with other institutions severely weakened and existing largely in name only.

Southern United States after Reconstruction

The Southern United States after Reconstruction is cited as a prominent example of a subnational authoritarian enclave within a national democratic government.

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The transition from authoritarianism to democracy

Constitutional authoritarianism is a term coined by legal scholar Mark Tushnet, who distinguishes it from liberal constitutionalism, which is more familiar in modern Western contexts. An authoritarian constitution can help consolidate a regime's grip on power by inhibiting coordination on different sets of arrangements.

While economic development has been argued to increase the likelihood of democratization, scholars also acknowledge that it is insufficient to conclude that development directly causes democratization. Other factors, such as the role of actors and agency, can play a significant role in shaping the outcome of democratic transitions.

Historical examples of transitions from authoritarian rule to democracy include the post-World War II era in Western Europe, where defeated Axis powers Nazi Germany, Fascist Italy, and Imperial Japan were replaced by democratic constitutions. Additionally, mass uprisings against autocratic rule, as seen in the Philippines in 1986 and Sudan in 2019, present opportunities for democratic transition, although they are not always successful, as illustrated by the case of Burma/Myanmar in 1988.

The process of democratization often involves navigating complex decisions, such as engaging in formal politics, prosecuting former regime elites, and encouraging political pluralism. These decisions are crucial for preventing authoritarian relapse and consolidating a sustainable democratic system.

The characteristics of authoritarian regimes

Authoritarian regimes are non-democratic systems of government where power is concentrated in the hands of a single leader or a small elite, and there is no established mechanism for the transfer of executive power. Authoritarianism is marked by indefinite political tenure, often with power centralised in a single party.

Authoritarian regimes often adopt the "trappings" of democracies, such as constitutions, which may serve as a way to legitimise and strengthen the regime. These constitutions do not set direct limits on executive authority, and they do not provide for the protection of civil liberties or political rights. Most authoritarian regimes impose restrictions on the freedoms of speech, assembly, movement, and travel, and censor the media.

While some authoritarian regimes hold elections, these are not free and fair, with the incumbent using tactics such as disinformation to manipulate public opinion and ensure victory. A token opposition is often allowed to exist, but its members are imprisoned, harassed, or co-opted.

Authoritarian regimes are often characterised by personalism, with power concentrated in the hands of a leader who exercises nearly absolute power. The other institutions of the state, such as the judiciary and legislature, are severely weakened and exist only in name.

Some scholars argue that economic development increases the likelihood of democratisation, while others argue that it can boost support for authoritarian regimes in the short to medium term.

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