Academic journal article Iowa Law Review

Stealth Authoritarianism

Academic journal article Iowa Law Review

Stealth Authoritarianism

Article excerpt

I. INTRODUCTION

"For my friends, everything. For my enemies, the law."

Óscar Benavides, former Peruvian President 1

Authoritarianism brings to mind repressive dictators to the likes of Adolf Hitler, Joseph Stalin, and Saddam Hussein. Historically, authoritarians deployed their massive security apparatus to torture and murder dissidents, jail journalists, rig elections, and shut down courts and legislatures. They disregarded laws and constitutions and systematically engaged in numerous extra-legal and extra-constitutional efforts to eliminate horizontal and vertical checks on their power and perpetuate their rule.

The Cold War ushered in an era of expansive democracy-promotion programs intended to detect and eliminate these transparently authoritarian practices.2 The United States enacted numerous laws and regulations to promote democracy, and by 1998, it had set up democracy-promotion programs in more than 100 countries.3 Non-governmental organizations ("NGOs") also joined the democracy-promotion chorus, working on the ground to ensure the implementation of democratic laws, constitutions, and legal institutions.4 Democracy clauses were placed in international agreements to sanction regimes that assume power through extra-legal means.5 Those measures significantly raised the costs of maintaining transparently repressive regimes and led to the elimination of many authoritarian governments. In the late 1980s and the early 1990s, dictatorships collapsed across post-communist Europe, Asia, and Latin America.6 According to the Freedom House, the percentage of countries determined to be "not free" decreased from 46% in 1972 to 24% in 2012.7 At the same time, multiparty elections-the centerpiece of democracy- spread across the globe.8

The post-Cold War international crackdown on transparently authoritarian practices provided significant incentives to avoid them. Much like a virus that mutates to adapt to new antidotes, authoritarians or would-be authoritarians9 learned to play by the same rules that exist in democratic governments. Although laws have always been valuable tools in an autocrat's arsenal, modern authoritarians began to deploy, to a much greater extent than their historical predecessors, the same laws and legal institutions that exist in democratic regimes for anti-democratic purposes. In so doing, the new generation of authoritarians cloak repressive measures under the mask of law, imbue them with the veneer of legitimacy, and render authoritarian practices much more difficult to detect and eliminate. In the modern era, authoritarian wolves rarely appear as wolves. They are now clad, at least in part, in sheep's clothing.

The scholarly comprehension of authoritarianism has failed to keep pace with the evolution of authoritarian regimes. The burgeoning literature on authoritarianism has focused primarily on traditional, more transparent mechanisms of authoritarian rule. These mechanisms include overtly defying or disregarding laws and constitutions;10 imposing emergency laws or martial law; silencing dissidents through harassment and violence;11 shutting down newspapers and television stations; banning publications;12 manipulating the vote count through vote buying, intimidation, and electoral fraud;13 disregarding or evading term limits;14 packing courts and other state institutions with loyalists;15 establishing direct control over the media and civil society;16 and amending or replacing constitutions to eliminate checks and balances on their power.17

As voluminous as this literature is, it suffers from a blind spot. The existing scholarship has been preoccupied with fairly transparent mechanisms of authoritarian control detected relatively easily by both domestic and international actors. But there exists comparatively little scholarship on the new, more subtle, mechanisms of authoritarian control that rely on the same legal rules that exist in regimes with favorable democratic credentials. …

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