On New Autocrats, Imitation and Flattery

Guest Blogger

 For the Balkinization symposium on Rosalind Dixon and David Landau, Abusive Constitutional Borrowing: Legal globalization and the subversion of liberal democracy (Oxford University Press, 2021).

Kim Lane Scheppele

            Oscar Wilde could well have been talking about a new generation of autocrats when he penned the aphorism that “imitation is the sincerest form of flattery.”  

Earlier generations of dictators toppled constitutional-democratic governments by ordering tanks into the streets.   But coups are largely a thing of the past.   The new generation of autocrats topples constitutional-democratic governments by ordering lawyers into action to write copycat constitutions and copycat legislation designed to subvert the rule of law.   By imitating liberal constitutionalism (even as they are undermining it), the new autocrats indirectly acknowledge that “[liberal] democracy is the only game in town.”   They wouldn’t do what they do if they didn’t recognize the normative power of the model that they mimic.    

New autocrats aim not at revolution through force but at subversion through mimicry.  

            Abusive Constitutional Borrowing by Rosalind Dixon and David Landau documents the rise of autocratic legalism by showing how new autocrats now “borrow” constitutional ideas and structures from “good” constitutional systems in order to use them in “bad” ways (hence the “abuse”).    From Venezuela to Poland, from Rwanda to Thailand, from Hungary to Ecuador, from Fiji to Israel, the pattern is clear.   Aspirational autocrats win elections – often freely and fairly the first time – and then set about to destroy the bases of constitutional democracy that allowed them to come to power in the first place.    As these autocrats dismantle constitutional democracy, however, they take pains to keep up appearances, which masks to both domestic democratic publics and international observers what is really going on.  By the time that constitutional democracy is fatally wounded, it is often too late to revive it. 

            Dixon and Landau build their powerful argument by developing a normative model against which to test the transformations they document.   They identify a “minimum core” of constitutional democracy that includes regular, free and competitive elections; respect for basic rights and freedoms; and the protection of the institutions that guarantee both.  Then they assess the changes that they document against that framework.  Their model is elegant, helpful and admirably neutral among different forms of liberal constitutional order.  For example, they don’t give pride of place to “free speech” as American analyses often do, nor do they check for “separation of powers” which can often be rather hard to identify in parliamentary systems.   Their thin theory of constitutional democracy provides a clear anchor for their idea of “abuse.”  In their framework, constitutional-democratic norms used to undermine constitutional democracy are deployed “abusively.”

            Dixon and Landau illustrate abusive constitutionalism with cases from all over the world.   In the countries I know well, their accounts are spot-on, which leads me to trust their accounts of the places I know less well.   I doubt that anyone working in this increasingly crowded field knows as much about as many places as they.   With Landau’s deep knowledge Latin America and Dixon’s detailed knowledge of many Asian cases (and more), plus their prodigious reading of everything in sight on all of the countries they track, they work from deep understandings of many cases at once.   The footnotes alone are worth close attention as they are a rich source of inspiration for further reading. 

            The alarm Dixon and Landau sound about the declining fate of constitutional democracy is well argued and urgent.   Constitutional democracies the world over are falling victim to aspiring autocrats.    By alerting constitutional experts to the reality and pervasiveness of these stealth attacks on constitutional democracy and providing a framework to use in diagnosing what is happening, Dixon and Landau hope to generate both professional concern and political action to stop the backsliding.

            Because there is no such thing as a perfect book, however, let me quibble about the title of the book: Abusive Constitutional Borrowing.  In my view, all three words are problematic in ways that suggest how the authors might have improved their argument inside the book. 

            First – borrowing.   I know that borrowing is the way that most of our field discusses the movement of ideas from one legal space to another.   But, as I wrote nearly two decades ago: 

Borrowing, in its most literal sense, means that the borrowed good in question belongs to someone else, and one intends to give it back. Moreover, manners dictate—and custom or law often require—that one ask and be granted permission to borrow something in the first place. Borrowing implies that a borrowed good is in one’s possession temporarily and that, as the property of another, one should treat it with care and attempt to restore it in the condition in which it was initially lent. One holds the thing borrowed by grant of a favor, not by right.

             In the cases that Dixon and Landau elaborate in their book, autocrats take (without permission) ideas from other places and use them in ways that break the ideas and bend them to the autocrats’ will.   Autocrats don’t treat these ideas as if they had any obligation to keep them in good working order.   Precisely the opposite.  Moreover, very often countries from which the ideas are taken object to the “abusive” uses without having any way to stop the abuse.  If you had lent something to people who then broke it, you could probably call them to account.  Not so here.  Borrowing is not what is going on. 

            As many who contributed to Sujit Choudhry’s 2007 edited volume argued, the “migration of constitutional ideas” is a better metaphor for conceptualizing this process.  We live in an era of migration, in which migrants are often transformed in the process of moving – sometimes for the better and sometimes for the worse.   Migrants are either well-treated or abused depending on where they go.  But “migration” is a placeholder for a whole set of movements whose overall assessment relies on many contingent facts. 

Moving from metaphor back to the study of legal ideas, the migration of legal forms can include the movement of both constitutional and “anti-constitutional ideas,” as I argued first with regard to national security laws that multiplied after 9/11.  Some ideas are pushed by sending countries and international organizations onto reluctant receiving countries while others are eagerly grabbed by receiving countries with or without the blessings of their originators.  As they travel, legal concepts can move from being highly supportive of constitutional democracy to undermining constitutional values at the next stop – and vice versa.    Just as migration describes many different sorts of reasons for travel, types of transformations and varying outcomes, so legal migration may be a better framework for understanding why legal ideas move, how legal ideas are changed as they travel and how they are transformed in the process.

If Dixon and Landau had thought explicitly in terms of migration, they would realize that it is not so easy to distinguish abusive from non-abusive uses of legal ideas.  Almost all ideas change as they move even without any malign intent from those who move the ideas from one place to another.   The purpose of a norm in one place may not be that norm’s justifiable (or good) purpose in another.   But that doesn’t make the new use abusive. 

For example, when the Hungarian Constitutional Court claimed to be following the German Federal Constitutional Court in the 1990s, the Hungarian judges no doubt thought that German judges declared laws unconstitutional all the time, because those were the cases they knew.  In fact, the German court was far less assertive in practice than the Hungarians thought.  The Hungarian Constitutional Court, however, declared nearly one-third of all the laws they reviewed in those early days unconstitutional, in an effort to make the constitution as real in daily life as it was in Germany.  But was that abusive borrowing? 

The Dixon and Landau emphasis on “abuse” implies that one should focus on the relationship of the norm to a single underlying purpose.   The Hungarian judges win on intent because they were trying to strengthen Hungarian constitutional democracy.  But many people argue even now that the hyperactive Court stunted democracy, ultimately weakening it.   A focus on effects in context rather than on purposes of norms may be better at showing where constitutional democracy runs off the rails and how it can be put back on track again. 

            Second – constitutional.    In stable legal systems, the idea of “constitutional” is relatively well-behaved.    A set of norms is placed above the others, becomes entrenched with more difficult amendment rules and is binding on all in their purview.   But in legal systems undergoing autocratic transformation, the idea of “constitutional” is anything but stable.  The autocratizing governments in both Hungary and Poland captured their constitutional courts first, so that no one could tell them that what they were doing was unconstitutional.   They then scrambled what “constitutional” meant so that topics regulated by the constitution were overridden by ordinary laws or even by executive decrees without a peep from the constitutional courts.  Constitutionalism has been destroyed from below by a parade of executive orders and ill-conceived laws, all occurring beneath the radar of “constitutional” law but hollowing out the constitutional order nonetheless. 

For example, Viktor Orbán declared a “state of migration emergency” in 2015 (which is still in effect six years later) and then another “state of medical emergency” in 2020 (again, still in effect).  Even though the Hungarian constitution (including the new one he rewrote in 2011) has a long section regulating states of emergency, Orbán simply acted in both cases as if the constitution had nothing to say on the subject.   The Constitutional Court said nothing either.  Eventually (in late 2020), Orbán changed the constitution to retroactively legalize what he had done and to give himself more room for issuing decrees without consulting the parliament.  But if one had only focused at the constitutional level, one would have missed the way that Orbán used other layers of law to consolidate his power until the constitution was formally changed five years into the use of extraordinary emergency powers.  One might say the same about the way that the PiS government in Poland has attacked the independence of the judiciary by passing statutes in clear violation of the constitution allegedly in force and by installing loyalists in a new disciplinary chamber of the Supreme Court, all without touching the constitution and all without a peep from the Constitutional Tribunal.

To analyze how democratic-constitutional governments become autocracies, then, it is important to monitor the whole legal system and not just the most “constitutional “parts.   When I made this comment at a panel on the book, Ros Dixon responded by saying that she and David Landau of course were interested in more than constitutions, narrowly defined.  And indeed the book has examples where sub-constitutional laws are discussed.   But I do think it is better for analysis of the problem of budding autocracies to be more explicit about the fact that inverting the hierarchy of norms within a legal system may be one of the ways that autocrats upend the constitutional order, particularly when they are consolidating power.    Focusing our attention on the constitutional level alone may miss how autocratic consolidation works. 

Finally – abusive.    Dixon and Landau clearly define “abusive” and stick strictly to that standard throughout the  book.   But fixing abstract normative standards against which autocrats’ conduct is assessed plays into the autocrats’ game. 

The autocrats read what we write and adjust accordingly.  Like US law school deans who game the system to score high on the US News rankings, autocrats know that their international reputations (and flows of foreign investment) rest on surface compliance with external standards.   If we give autocrats the precise normative standards that we will judge them by when those standards are merely means to the ends that we care about, it will provide autocrats a checklist for how to keep up appearances while still undermining constitutional democracy.   If, however, we insist on measuring effects of autocratic rule – like whether people are free to be authors of their own lives or whether they can change governments when they want to – then we measure what we ultimately care about in a manner that is less gameable by autocrats. 

As I was writing this review, an example popped up in Hungary.  Six otherwise incompatible political parties have pledged to work together to defeat Orbán in the Hungarian parliamentary election in 2022. They are holding primaries in fall 2021 to determine which one candidate from the opposition will stand alone against Orbán and his loyalists in each district so that the anti-Orbán vote is not divided.    Four hours into the first day of primary voting, the servers tallying the votes were hit by a distributed denial-of-service (DDOS) attack, requiring postponement of the election.   Opposition-affiliated computer experts quickly traced the hack to Chinese sources.  The Hungarian government denied any involvement. 

Did Hungary fail the free, fair and contested election criterion that Dixon and Landau develop as crucial to their analysis?    Not on a formal review of the situation.  Six parties were competing freely and the government made no overt attempt to interfere.  An external hack halted the proceedings, not the Hungarian government.    The problem wasn’t unique to Hungary.   Potential DDOS attacks were flagged in the US in the last election to warn the public.   The effect of such a warning was to make  DDOS attacks could look like something that could happen to any democratic government at election time.

With the DDOS attack in Hungary, however, the opposition believes it knows precisely what is going on.   In recent years,  China and the Orbán government have been cozying up to each other and China will get what it wants in Hungary only if Orbán wins next year.    You can see why China might want to do Orbán “a favor, though.”   Before this most recent attack on the integrity of elections, Orbán had done everything he could in the last two election cycles to adjust the law to rig the elections in his favor.   It seems that Orbán will stop at nothing to stay in power even if he endures the charade of elections.    A DDOS attack on the first primary day, especially when China seems to be the source of the attack, looks like something from the Orbán playbook.

But what is a normative democracy rater to do?   Should the democracy rater just believe that bad things sometimes happen to good democracies?   Or should the democracy rater understand, as Oliver Wendell Holmes famously wrote in The Common Law, that “even a dog distinguishes between being stumbled over and being kicked”? 

The Hungarian election hack example illustrates that, in the new autocracies, actors other than the government in question – private actors, foreign actors – are often the primary agents who speed the path to autocracy.   If oligarchs friendly to the prime minister buy up the independent media and turn them into propaganda outlets for the government or if the private sector refuses to hire people affiliated with opposition parties or if foreign governments friendly to the governing party hack into opposition primaries, is the autocratizing government to blame?    Is this constitutional abuse?

If we focus not on abstract criteria but on what the system feels like to those who are in it, we might better understand when constitutional democracy is being undermined.   An election is clearly not fair when it is hacked by a foreign government working under the table with the powers that be and a media environment is not conducive to democratic debate if the main private news outlets are all signing from the government’s song sheet.  But a focus on constitutional norms and their purposes may not flag these cases as problems.   We need to look at the whole context rather than creating and deploying checklists of norms that a government can game by outsourcing its bad behavior to others. 

In fairness to Dixon and Landau, many of the cases they elaborate in the book are quite textured.  Among other things, they are not fooled by the normative outsourcing that autocratic governments do.  But the idea of constitutional abuse is less flexible than the idea of studying deleterious effects for the practical realization of constitutional democracy, and I worry that their normative checklist provides another gaming opportunity for autocrats.

All that said, Dixon and Landau have provided a very important and useful focal point for the next round of debate about democratic decline.   Should we proceed by developing norms and identifying abuses of the norms?  Or should we proceed by identifying practical harms and finding remedies?    If I take a different view of the matter than Dixon and Landau, it is not because I haven’t learned an immense amount from them.   We differ over how best to study (and to turn around) the alarming things happening in altogether too many constitutional democracies today.    But Dixon and Landau have done us all a great service by documenting the problems and offering a creative framework for understanding what is going on.  Abusive Constitutional Borrowing should be on everyone’s reading list.   And let the debate begin! 

Kim Lane Scheppele is the Rockefeller Professor of Sociology and Public Affairs at Princeton University. You can reach her by e-mail at kimlane@princeton.edu.