Legal scholar Kim Lane Scheppele defines her term ‘autocratic legalism’ as instruments of law being repurposed as weapons of control.
An insidious loosening and dismantling of constitutional constraints, it subverts the principles of democracy. The very instruments designed to protect it are co-opted to dismantle it.
The purveyors of autocratic legalism promise far better delivery and efficiency than the cumbersome check and balances of a democracy. A fallacy, the perpetuation of such a regime hinges on a servile and subdued populace not a free and vibrant one. Most African nations, autocracies for decades, are riven by strife and insecurity and among the poorest globally.
Autocratic legalism leaves deep scars on a nation’s psyche. It erodes trust and dismantles the cogs of a democratic society. One of its primary tactics is to manipulate the electoral framework. Legislation is introduced to enact or amend laws in ways that systematically disadvantage the opposition and entrench the regime’s own power.
This facade of legality is meticulously engineered. Legal scholar Ozan Varol describes this as “stealth authoritarianism”. The spawned structure, with truth and justice as its first casualties, is totally devoid of legitimacy and acceptability.
The recovery process, when it does come, is a slow and arduous one because the ubiquitous damage has been wrought through legal means. Undoing it requires unravelling a byzantine web of appointments, interconnected laws and constitutional amendments.
To paraphrase author Milan Kundera: “The struggle of man against power is the struggle of memory against forgetting”. A timeless lesson, it contends that power structures thrive on controlling history and narrative. What is deemed as defiance, is the essential act of remembering the truth.
By weaponising the legal system against critics, an environment of misinformation thrives. If people start accepting orchestrated narratives, they surrender their present and future to the choreographers at play.
Scheppele identifies a pliant judiciary as a crucial must for autocracy to flourish. An imperative of autocratic legalism is controversial legislation aimed at judicial capture. Once done, it is relegated to being a body to merely legitimise preordained decisions.
Dr Fiona Shen-Bayh is a renowned political scientist specialising in authoritarian regimes and legal systems. Her book ‘Undue Process: Persecution and Punishment in Autocratic Courts’, reveals how the judiciary is weaponised.
Autocratic legalism reframes punitive reprisals of opponents and critics not as reprisals but as a righteous application of law. The dichotomy lies in the muzzled distinction between a legitimate legal process and politically motivated persecution.
This environment enforces fear as the foundation of the system. What could be a more horrifying specter than law ceasing to be a protective shield for the people and becoming a sledgehammer against them?
Montesquieu, a famed political theorist who articulated the concept of checks and balances in a government, describes it thus: “The harshest tyranny is that which acts under the protection of legality and the banner of justice”. This chilling paradox encapsulates autocratic legalism.
Contemporary political scientists identify hybrid regimes as a byproduct of autocratic legalism. Its success is foredoomed because of its inherent illegitimacy, a fundamental contradiction of this system.
Hybrid regimes are caught in a vicious cycle of efforts at garnering legitimacy through increasing autocratic legalism and punitive measures. The result is a vortex of alienation and instability.
A system that stands on the quaking foundations of exclusivity and repression can never deliver on its promise of stability and prosperity. For it, only submission is legal tender. This is the single priority, not inclusive growth.
The detrimental effect sees policies enacted to serve the interests of the power elite and their foreign patrons. The power elite exacts acceptance and loyalty, their foreign patrons’ gouge away more than a pound of flesh. In both cases the sufferers are the impoverished masses.
In this climate of profound uncertainty, a select few are protected, the multitude is vulnerable. Decline in freedom and opportunity leads to an exodus of the most talented and educated. This loss of human capital further hinders economic and social development for decades to come.
Autocratic legalism expounds the illusion of order and fairness. This facade of legality is its most lethal aspect. This rule by law, a precipitator of regression, defiles the very meaning of rule of law. Its aftermath is the decimation of public trust and state institutions, which are drained of any semblance of moral authority.
When political opposition and dissent are suppressed and the right to information is controlled, the state’s monopoly on force is no longer seen as legitimate. This creates a festering ground for radicalisation. People lose faith in their leaders and become susceptible to external influences.
This lethal vulnerability is exploited by enemy groups and states. Their core strategy is to exacerbate existing divisions, sow further discord and turn internal grievances into an implosive weapon against the state.
The long-term consequences of autocratic legalism are catastrophic. Constitutions do not defend themselves; people do. With truth as a lie and justice a tool of the powerful, autocratic legalism’s greatest blight is not the consolidation of autocracy but the vanquishing of a nation’s soul.
The abyss of despair is the loss of will to be free. It is when the soul cowers into itself, sacrificing its voice for self-survival and the illusion of safety.
In the words of Kahlil Gibran, “The freest among you wear their freedom as a yoke and a handcuff”. It is a Faustian bargain indeed when individuals have to secure their wellbeing through silence, fealty and complicity. Deja vu?
The writer is a freelance contributor.
He can be reached at: miradnanazizgmail.com