This episode focuses on comparisons of soft authoritarian regimes and the phenomenon of autocratic legalism. How do the uses and abuses of law play a role in dismantling liberal democracy from within and cementing authoritarian rule? Listen to hear how countries including Turkey, Hungary and the United States are using legal means to illiberal ends, and how resistance could be organized.
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Glossary
Gerrymandering
(14:00 or p.4 in the transcript)
In U.S. politics, gerrymandering is the practice of drawing the boundaries of electoral districts in a way that gives one political party an unfair advantage over its rivals (political or partisan gerrymandering) or that dilutes the voting power of members of ethnic or linguistic minority groups (racial gerrymandering). The term is derived from the name of Gov. Elbridge Gerry of Massachusetts, whose administration enacted a law in 1812 defining new state senatorial districts. The law consolidated the Federalist Party vote in a few districts and thus gave disproportionate representation to Democratic-Republicans. The outline of one of these districts was thought to resemble a salamander. A satirical cartoon by Elkanah Tisdale that appeared in the Boston Gazette graphically transformed the districts into a fabulous animal, “The Gerry-mander,” fixing the term in the popular imagination.source
Shalini Randeria (SR): Welcome to "Democracy in Question," the podcast series that explores the challenges democracies are facing around the world today. I'm Shalini Randeria, rector and president of Central European University in Vienna, and senior fellow at the Albert Hirschman Centre on Democracy at the Graduate Institute, Geneva. This is the second episode of season 7 of "Democracy in Question," and I open with a discussion on the links between legal and constitutional means being currently used to dismantle democracy from the inside. Today, I'll focus on comparisons of soft authoritarian regimes using legal means to illiberal ends in Turkey, in Hungary, but also in the United States. I'm really pleased to welcome Kim Lane Scheppele, the Laurance S. Rockefeller Professor of Sociology and International Affairs in the Princeton School of Public and International Affairs at Princeton University.
Kim was the founding co-director of the gender studies program at my university, the Central European University. So, she has a long association with us. In 2014, she received the Kalven Prize from the Law and Society Association for Scholarship, that has had an important influence on the development of social legal studies. And in 2016, she was elected to the American Academy of Arts and Sciences. She’s currently working on two books. Her book, "Destroying Democracy by Law," examines how a new generation of autocrats around the world is consolidating power using the law, or, abusing the law. This phenomenon of autocratic legalism will be the focus of our discussion. as I discuss its pernicious effects in Hungary, Turkey, and the United States with Kim today. But she's also working on another book, titled "Hungary's Constitutional Transformation: From Communism through Liberalism to Autocracy," which compares the 1989 constitutional revolution in Hungary with the new constitutional order that replaced it in 2011/2012. So, Kim, it's wonderful to have you back on the podcast once again and thank you so much for joining me here today in Vienna.
Kim Lane Scheppele (KS): It's lovely to be here, and lovely to see you again.
SR: I'll discuss with Kim how law has become central to the toolkit used by elected authoritarian leaders to hollow out liberal democracies from within, by cloaking their tactics in legal forms and legal reforms. This is the phenomenon Kim has termed "autocratic legalism,"[i] that lends legitimacy to moves towards the perpetuation of authoritarian power, be that in Venezuela, Brazil under Bolsonaro, Erdoğan in Turkey, Orbán in Hungary, Israel under Netanyahu, or Trump's presidency in the United States. Kim treats Hungary as an archetypical case, but I'll ask her to explain how the term is applicable to the United States, which sees itself as a shining example of democracy and rule of law. So,we'll take a historical detour as well, to discuss the renewal of faith in liberal democracy and rule of law as the remedy against authoritarian rule following the end of communist regimes in the 1990s, which saw then the global spread of liberal constitutionalism.
How did it then come to pass that law is being used and abused today to transform many a liberal democracy into an electoral autocracy in so many parts of the world? How is accountability being eroded, political freedom undermined, and minority rights being attacked by removing what Kim has called “the liberal content from constitutionalism”? And beyond these constitutional changes, we can also observe sweeping pushbacks against women's rights, environmental protection, racial and gender justice, for example, in the United States recently. How are recipes for these kinds of regressive changes being borrowed from one country to another, not only by autocratic rulers but also by right-wing conservative civil society organizations, which are linked together in strong transnational coalitions? And finally, can there be global resistance to authoritarian legal diffusion? Or, can this kind of resistance only be organized nationally?
So, Kim, in an influential article in 2018, you argued that quite a few recent examples of democratic decline are largely driven by what you call "autocratic legalism." These are democratically elected leaders who may at first sight not seem to pose a threat to democracy and to the rule of law. And this is largely because they're engaged in what one could call a constitutional coup. No tanks are out in the streets, but what they do is really cunningly deploy the law, using it to dismantle the spirit of law and constitutionalism itself. They're, of course, aiming to consolidate their own power, and doing away with institutional checks and balances, but they're also doing away everywhere with the rights of democratic publics, and especially of minorities.
So, to remind our new listeners, when I talked to you three years ago, we already discussed on the podcast several examples where we could see the features of what I call these new forms of soft authoritarianism.Why don't we just start with a summary of your main argument about autocratic legalism, and with the recent Turkish elections. Why do authoritarian rulers like Erdoğan need to rely on the law and on constitutional changes? And how are these systematic but piecemeal legal reforms that he's been carrying on over the last decades put in place in a way that create incoherence, and make, of course, for much easier manipulation, which is not noticed at first?
KS: Well, thank you. And that's a big question. So, let me start by just saying that the new autocrats want to be seen as democrats. If you look at autocratic takeovers in the 20th century, tanks in the streets, revolution, a violent takeover, you have no doubt that there's a government that has changed, and the new government is bent on destroying civil liberties, political liberties, etc. And, of course, going after minorities. The new autocrats know that history, and they don't wanna seem to be repeating it. So, the way that democratic governments fall now, is often through, the first time, a free and fair election that brings somebody with autocratic aspirations to power.
Now, one thing I've been doing is going back and looking at the speeches of these aspirational autocrats in the first time that they're elected. And they never say, "I will bring you autocracy. I will destroy your freedom."They campaign against corruption. They campaign against austerity programs. So, the first election campaigns look extremely conventional. People don't understand that what they're voting for is someone who's going to come in and make every election thereafter not free and not fair. These autocrats pose as democrats. And then, if you've been swept into power by a democratic wave, what do you do to prove that you're actually responsive to the people who elected you? You change all the laws, because that's what you promised, right? So, the new autocrats come in, people don't know they're autocrats yet, they engage in a huge amount of lawmaking. Sometimes they replace the constitution. Sometimes they just have a wave of statutes.
So, it takes a very long time for democratic publics to see what's going on. It takes even longer for international organizations to see what's going on. Because, for the first years, the autocratic democratproudly announces, "You know, I was swept into power with an overwhelming vote of the people, and I am just carrying out the people's will." Now, in many cases, they're inventing what the publics demand. So, there's actually a new very good book by one of my former colleagues, Larry Bartels, that I'd like to recommend. And it's called "Democracy Erodes from the Top."[ii]And he shows, based on European public opinion data, that there was no demand for populist leaders in the countries where these populist leaders came to power. He has a particularly good chapter on Hungary and Poland where he shows that there was not a massive demand for stopping immigration. There was not a massive demand for all these policies that Orbán has become famous for, or that Kaczyński has become famous for in Poland. Instead, what you see is that the leaders create the demand. They're not responding to a demand. And that's one of the first elements. So, why do they rely on law? Because it's how they hide. Every democrat is supposed to use the law. It all is borrowing the formsof legitimacy that we take to be associated with democratic governments. And that's why they can hide in plain sight for so long.
So, then, how do we tell that they're doing something dangerous? This is where you have to look at the content of the laws that they pass. It's not enough to say they won an election and they pass laws. And very often, the content of those laws removes all of the checks on executive power. They remove the ability of courts to oversee what the executive is doing. They turn parliaments into rubber stamps. They capture independent institutions, like, everything from election commissions to central banks. And the point of capturing them all is so they directly respond to the will of the autocrat.
So, what they do, with whipping up, hatred against minorities, for example, is they're distracting attention from the autocratic consolidation of power. Of course, language has effects. The reason why the liberal opposition will get very upset about these campaigns is that, you know, a campaign of hate against minorities will produce hate against minorities, and that's not a good thing.But these autocrats know that liberals will respond to those kinds of appeals, and they will be distracted by those kinds of appeals, and not notice that the judicial appointments process has changed, that the election commission has been captured. So, again, it's, the way that autocrats capture power is by taking advantage of the least visible parts of a constitutional system, and twisting them all, to keep the autocrat in power forever.
SR:One of the points which you've made is that the script is similar, and borrowed, liberally, or we should say, actually illiberally, from one country to the other. We'll come back to the European examples. But do you think there's danger of another far more successful game of imitation, which unites illiberal political actors across the Atlantic? So, if you recall, Steve Bannon famously called Orbán "Trump before Trump." And Orbán's people, of course, have forged close alliances with many groups in the penumbra of Trump, as well as with the DeSantis camp.
Orbán even hosted the CPAC in Budapest several times, participating in ultra-conservative events in the U.S. as a keynote speaker, etc. So, the kinds of things you've just described, capturing courts, packing courts, banning books, rolling back women's rights, etc., is almost happening in sync on both sides of the Atlantic. What do you think will happen after the 2024 elections? Could the United States veer further in the direction of dismantling rule of law and liberal democracy, and that would lead to even more convergence and cooperation with elected illiberal leaders and anti-democratic leaders in many countries in Europe?
KS: We cannot say that the U.S. is a safe place for democracy anymore. We're still very much in the trenches of fighting, between one political party that actually believes in the rotation of power and limitations on power, limitations on executive power, and on maintaining the rights of minorities, and one party that has tried to lock itself into power, even though it has not won the majority of the popular vote in, I think it's one election out of the last six. And so, the Republican party in the U.S. does not have a majority behind it, even under the best of times. If you look at Donald Trump's popularity, his base is about one-third of the U.S. public. And DeSantis and the other contenders have even fewer supporters. So, the question is, how, if you don't have majorities, you wind up getting into power?
And the answer is that the Republicans, going back 50 years now, have been steadily changing the election laws, to allow them to win elections when they don't have majorities. In the U.S., national elections are run as 50-state elections that get added up. So, the election rules are set at state level, and the Republicans saw that way before the Democrats, and they started campaigning to winstate parliament elections, basically. Once they won them, they used that leverage to gerrymander states. So, once you get the state houses, then they draft the rules for the federal elections.
So, you've got now, in all these Republican states, elections that are tilted enough toward the Republican side that, at federal level, a Democratic presidential candidate has to get 5% to 7% more of the national vote to be guaranteed winning. That's at the presidential level. At the House of Representatives level, the Democrats have to win...the estimates are 7% to 10% more of the public vote to get a simple majority in the House. So, we already do not have a level playing field, and it's in those rules that we worry that Trump may come to power again. So, the first time, I mean, in some ways, despite all of the chaos that Trump caused, it could have been worse. So, the thing about Trump is that he's undisciplined, knows no law, and is not a legalistic autocrat.
He hated working with the Congress. He passed one big tax cut, and that was it. He loved to give executive decrees. And of course, the thing about executive decrees is that the next president can un-executive the un-decree, and it goes away. So, Trump entrenched, actually, very little during his time in office. He packed the courts, he just outsourced that to another group. But, in terms of the kind of legislation that he passed, most of what he did could be easily rolled back. The Republicans learned a lesson. They're not gonna let that happen again. So, you mentioned Steve Bannon. So, one of the things that Bannon had proposed, that Trump enacted by decree on his way out the door, but that he could easily do again if he comes back in, was to take the civil service.
Modern states are bureaucratic states. And what makes the bureaucracy follow the law is its neutrality. Well, that's not enough for the autocratic legalists who come in and they want the civil service rooting for them. And they also want the civil service to be rooting for them even if they were to lose an election, so that they don't really lose. So, this is what Orbán did in Hungary, and now Steve Bannon's recommending it for the U.S.
So, what Orbán did in Hungary,when he came to power in 2010, Hungary was under an IMF austerity program. They were ordered to cut the state budget. So, Orbán suspends the civil service law, fires huge numbers of civil servants, says to the IMF, "You see? I'm doing what you want." Then he steals all the private pensions, pays off the IMF, hires his own people in, and they get civil service protection. All the people he fired were people with the political opposition or people who were not with him. And he replaces them with a lot of party loyalists, who now get civil service protection. So, Steve Bannon sees that. Now he's got this plan. It's called Schedule F. So, this is, I won't get you into the weeds of American bureaucracy, but different classifications of civil servants, A through E.
Bannon's proposal, which Trump enacted by decree, but which the Republicans will enact by law if they can now, is to enact a civil service category called Schedule F, into which they have planned to move something like a third to a half of the current civil service. And this removes them from the protections of the civil service law and allows them to be fired at will. Bannon has been running these boot camps for thousands of Republican trainees to go into these positions, so that they've got their loyalists staffing the federal bureaucracy, so that it is no longer neutral between the political parties. So, this is really serious, and it started with Orbán, and you see it coming, through Bannon, to Trump. They've got a lot of connections directly with the Orbán government, and they're importing into the U.S. things Orbán perfected first in Hungary.
SR:We’ve seen in the last weeks several Supreme Court judgments, judgments which dismantled Biden's plan for student loan debt forgiveness, judgments which run counter to gender and social justice, against LGBTQI rights, women's reproductive rights. We saw Roe v. Wade a few months ago, but also the Supreme Court judgment against affirmative action. So, what we are seeing here is a systematic dismantling of hard-won minority and women's rights over the last decade. And the Democratic] Congresswoman Alexandria Ocasio-Cortez called these rulings, and I quote her, "A dangerous creep towards authoritarianism," where she thinks the Supreme Court has assumed legislative power. And these are highly politicized decisions, along very predictable ideological lines, by judges appointed by President Trump. Do you think they will, with these decisions, destroy the legitimacy of the Court?
KS: Yeah. So, this is really Donald Trump's legacy. So, he may not have been very disciplined about changing most of the law, except for the fact that he packed the courts. The Republicans have also been, over the years, much more focused on judicial appointments than the Democrats have been.
Trump got three judges in four years. Obama got two judges in eight years. And that means that basically, it is a packed court, because it's not just that you have judges named by Republicans, but you have extremist judges named by Republicans. So, these are judges who have not honored precedent, and not honored consistency even across their own opinions. Because what constrains judges is precedent, consistency, coherence with existing law. And these are judges that will just slash and burn their way through whatever is there. And so, what we've seen is that this, now, 6-to-3 Republican majority contains judges who see their mission as overturning what has been really 70 years of, not just progressive precedent, because that just makes it sound purely political.
The U.S. has been in step with every democracy in the world in terms of expanding the promise of equality, and turning it into reality, for disadvantaged, ethnic, and racial minorities, for women, for people who have, shall we say, fluid genders, and so on. Also expanding voting rights. Also expanding due process rights for people who have been accused of crimes. Across the board, the U.S. Supreme Court was working in the same direction as almost all courts in democratic systems everywhere in the world. Now, the U.S. Court is one of the only ones in the world that is taking all these steps backwards. Not just steps. They're leaps, and they're running.
So, I don't even know what we're teaching when we're teaching constitutional law anymore. And this is what happens in autocratic systems, where suddenly, the court is packed with political ideologues, who come in with a political agenda, they don't act in a particularly judicial manner, and there goes constitutional law.
So, you know, there we are, and this is really the big dilemma, because the Supreme Court has an outsized role in the U.S. The only way to overcome its constitutional decisions right now is to amend the Constitution. And that's just politically impossible, because the amendment process is so difficult. So, what we're starting to see are people saying, including constitutional law professors, saying, "Maybe we shouldn't comply with the decisions. Maybe the decisions are just illegitimate, or..."
SR: Civil disobedience.
KS: Civil disobedience. I mean, this week, when the affirmative action decision came out, the one that said that, you know, universities may not take into account the race of an applicant in order to balance a class or achieve diversity, overturning 50 years of case law, immediately, you sawmany university presidents coming out with statements saying, "We're gonna find a way to do it anyway." Which is not what you might consider an overwhelming vote for compliance, right? They're gonna say, "You've given us some loopholes. We will take advantage of it. We will try another strategy and make you tell us no again." Which is saying, "We're not on board with this decision. And while we won't directly violate it, we will violate it in spirit any way we can." That was the reaction this week. So, now we have a court that will be followed only in the narrowest way, only where people feel like they have to. And I think we're hitting a point where decisions of the court may not stick.
SR:To take up another point, Kim, which you just made, which is about the skewing of electoral laws and rules. The question that I was thinking about while you were discussing the wide-ranging electoral law changes which have been made in Hungary, in Turkey too, in the United States as well, what does an oppositional party or coalition of opposition parties do when that happens? Because civil disobedience would mean, in that case, to say, "The game is rigged. We are not playing this game at all." And you say, "Okay. So, we don't contest elections under these conditions if they are rigged and they are skewed." And so that participating under these unequal conditions ismaintaining the illusion of a democracy and rule of law. But if they don't participate in the elections, they are out of the political realm. So, how do you see a change coming about here at all?
KS:This is the biggest problem, because when I work on this, I have many colleagues in political theory who have extremely elaborate definitions of democracy and what it means. And I have a very simple one. Can you still change the government through elections? And in Hungary now, and in Turkey now, the answer is no.And so, this puts the opposition into a very difficult position. And for a while, the opposition had no role in legislation in Hungary starting in 2010, at the beginning, the opposition would just walk out of parliament. So every single vote was unanimous, in favor of the government's position. And I remember trying to get international news organizations to cover what was happening in Hungary. And what I would go back and tell the opposition was, it's really impossible to get journalists excited about unanimous votes in the Hungarian parliament, right?
So, you have to think about doing something theatrical, right? Something that draws attention to the hopelessness of the opposition. You have to be in there participating somehow. And so, what I worry about is when oppositions decide that they will play along, knowing they'll lose, but they act like it's real.
So, this is where I think the opposition has to be there participating, as you say, because it has to be a contested space. There has to be some debate, and contestation and drama, for journalists to pay attention, okay? But, I think it's really important for the opposition, in these campaigns, not to pretend like they can win, but to instead campaign in order to call attention to the way the system is rigged. Because it turns out the election monitors are not very good at spotting all of that. And a lot of this is because of what I call the Frankenstate problem.
So, the Frankenstate problem comes, if you think about, you know, it's obviously a reference to Frankenstein. Frankenstein's the doctor. How does he make a monster? He goes around and he digs up bodies from a cemetery, and then he attaches the torso of one to the arm of another, to the leg of another, to the head of a fourth. And this is how he makes the monster, right? So, this is what autocrats do, with all their laws, but particularly with election laws. So, in Hungary, for example, Orbán takes American gerrymandering, matches it with British first-past-the-post elections, matches it up with the then German system, where the election districts varied by up to 30% in size. Then he matches that up with Berlusconi's so-called winner compensation rule. And then you sort of go through all the Hungarian election rules, and every single rule, if you take it by itself, has a correspondence in some country that isn't too bad yet.
And that's how the election monitors tend to approach their task. They go through and they say, "Well, yes, there's gerrymandering, but a little gerrymandering happens in a lot of political systems, so I guess that's okay." What really matters is what happens when you stitch all the body parts together. It makes this Frankenstein, or what I call a Frankenstate monster, because the way the election rules intersect produces only one outcome. And Erdoğan's done that in Turkey as well. Orbán's done that in Hungary. Increasingly, the Republicans are doing that in the United States. And then you no longer have free and fair elections.
SR: At the end of your essay on autocratic legalism, you are making a strong plea for civic duty, about civic mission, to educate the citizenry about the tools of law. And as you quite rightly point out, let me quote you there, you say, "We need to stop taking for granted that constitutions can defend themselves, and law itself is just too important to leave it to the lawyers." The problem which I now begin to recognize is you elaborate on what has happened through many years of systematic manipulation, use, abuse of the law, is, that once the red line has been crossed, the question is how to inculcate, how to undo the damage, but how to inculcate this kind of civic educational component into the citizenry?
Because one of the institutions they all capture are also universities. And one of the things they do is then change textbooks, change curricula, outlaw disciplines. So, in a way, what you then get are ordinary citizens who resign themselves to the state of affairs. So, you can get indifference, you can get feelings of apathy, hopelessness, and you do still get, interestingly, in Turkey for example, or even in Poland, quite a bit of grassroots mobilization around court cases, still. And people are defiantly kind of demonstrating solidarity with one another during trials. So, what could a viable politics of resistance look like?
KS:Such a good question, because, you know, by the time these autocrats have centralized control, they've also damaged civil sector. They've damaged universities, they've damaged ordinary education, so that, sort of, democratic principles are not being taught. So, this is where I do think transnationalism really helps, that civil sector groups from societies that have not yet been captured can help the ones in the societies where they're really under some kind of threat. What are the avenues that we could use to our advantage, to try to figure out how the citizenry can also respond, using the tools of power, which is to say using also the tools of law? Now, in the EU, for example, many civic sector groups were very accustomed to taking cases to the Strasbourg Court [European Court of Human Rights].
And the Strasbourg Court has been very good on many of these issues. The problem with the Strasbourg Court is that it has very weak enforcement powers. So, one thing I've been trying to do in Hungary and in Poland... Doesn't help Turkey yet because it's not in the EU. But EU law is actually way more powerful, because there are enforcement mechanisms. There are substantial monetary sanctions you can bring to bear against member states. And so, one of the questions is whether civil sector groups can learn to leverage EU law in addition to European human rights law. So, I've been suggesting that we should do boot camp courses on EU law, so people are better at spotting which issues they can actually use to get the cases out of the national judicial system, into the European courts, to be able to then use that as pressure back on their national governments.
So, in areas, and there are parts of the world, the Inter-American system, the European system, the African regional human rights system, you can sometimes use the transnational courts to kind of come back at and put pressure on your regime. I think, again, you wanna use whatever mechanisms you've got at your disposal. And this is where I think of, sometimes, a kind of reverse federalism. So, maybe you start with the part of the country that is still sympathetic. So, in many countries, you know, the defense of autocracy is coming from less-educated people in rural areas. So, you start mobilizing the cities.
Also, you're building up a leadership corps, by trying to, you know, get your people to be able to engage in complex governance problems in cities, so they demonstrate they could lead a country if the option came open. And then I've been, you know, trying to say, for example, in the EU, or in the Inter-American system, but I think in the EU, why don't we fund cities from EU money, instead of just funding these autocratic national governments?
SR:So, directly fund?
KS: Directly fund the civil sector from outside, you know, to think about ways of leveraging the embeddedness in international institutions. But even if you're not embedded in international institutions, to start with the cities, and work out from there. Like, so, maybe the public law courts, the constitutional court is gone, but maybe you can actually reach cases through the civil law courts. For example, one thing that's happened in the U.S. which has been really interesting, because we have thismedia disinformation campaign, Fox News and all of the Republican, sort of, echo-chamber media, many of which are producing news that is based on lies, really. So, what happened after the last election was that this voting machine company, Dominion, decided to sue Fox News, which is the official channel of the Republican Party, for defamation, for saying that its machines were not reliable. And they actually won a huge judgment. And this defamation case, private-law case, right?
SR: And a huge fine.
KS: And a huge fine, right? So, you know, thinking about those avenues, like, maybe you don't have constitutional law on your side, but you may have defamation law on your side. You may have some other legal way in. There may be a contracts claim you can press. There may be a property claim. I mean, so, this is where, again, the reason for using law is that law is the language of power. And you can use, you know, many other languages for developing and supporting a political opposition, but ultimately, law is the language of power.
Maybe you have to have these courses out in the streets in a public square, if the universities are captured. So, you know, I focus on law, not because I think it's the only thing. But I worry that the civil sector ignores the power of law too much, and they leave law to the autocrats. That's the playing field that we're not playing on. Youhave to get into a game as complicated as the one they're playing and try to see if there's any way to get an advantage.
SR: What you've described is a bottom-up approach here, using the law. Now, let's look at the EU, which you also talked about, which has finally woken up to the fact that it should be doing something about both Hungary and Poland violating a lot of EU law. So, it started Article 7 proceedings, but it's also triggered its rule-of-law mechanism, which does impose much more efficient economic sanctions, not just symbolic ones. For me, the question here is can you really restore the rule of law from above? With both of these countries still members of the EU, can the EU defend itself even from internal threats to its own democracy?
KS: This is such a good question. So, you know, first, I think the EU was very slow to wake up to what was happening inside the member states, and they were even slower to figure out what they could do about it. So, the main thing they're doing now, which I think has some promise, it's the only thing so far that has made these governments do anything to change, is that they're withholding all of the funds, all the cohesion funds, all the funds except agricultural funds, to Hungary, which is about somewhere between 28 and 36 billion Euro. And they're withholding 110 billion Euro from Poland until these governments change things. Butthe question is whether the reforms will actually be responsive, or whether they'll just be window dressing. And I'm very worried that the commission is gonna give up on these countries, and say, "Oh, your cosmetic reforms are sufficient," without really changing things.
So, you know, can you change from above? You can't change everything from above. Democracy is ultimately a process that has to be bottom-up as well. But what you can do, if you restore some modicum of independence to courts, if you could do, and I wish the EU would get involved in this, which it hasn't. Hungary's a surveillance state. You have to dismantle the surveillance state, try to get some independent courts back, try at least to provide some safety net for the opposition. And then you might be able to develop some bottom-up movement. So, I do think that there's some changes you could make that would assist the opposition in recovering, you know, some competitive position, you know, internally. But it's not everything.
But the question that you asked, the second question, is something the EU has woken up to even later. You've got these guys under the tent. You know, they're inside the lawmaking institutions, and the EU is still set up so that many of its sanctions require unanimity. Including sanctions against Russia for what it's doing in Ukraine, including, actually, by the way, sanctions against China, for what it was doing in Hong Kong and with the Uyghurs. Hungary vetoed those resolutions too. So, many things that require unanimity still. And Orbán in particular, and, you know, the PiS government secondarily, are realizing that they can leverage their votes on these unanimity files, to get stuff they want somewhere else.
We have this bigger danger coming up. Starting July 1st, 2024, which is a year from now, Orbán and his government become the rotating presidents of the Council. For 6 months. Followed by Poland. And the EU has not thought far enough ahead about what happens when the agenda in the Council... Because that's the main thing these presidencies do. They set the agenda. And that agenda, for a year, is gonna be set by the rogue states.
So, I think that the EU would be within its law and within its rights to deprive, certainly Hungary, of its role in the rotation. Again, a number of us have been campaigning for this for some time. The Dutch have something called the Meijers Commission, which is an advisory body to the Dutch Parliament, advising them on matters of EU and European human rights law. And the Meijers Commission just came out with a report a couple of weeks ago, saying, "Here's how it would be legal under EU law to deprive Hungary of its role running the Council." This is where you need political will, you need the other member states to sign on, because it turns out that the Council can change the rotation by a qualified majority, 55% of the states with 65% of the population. It does not require unanimity. Poland and Hungary can't veto it. It's serious that these countries are in the EU, affecting the EU processes as well.
SR: Last question, Kim, and that is about the organization of resistance to autocratic legalism, both political resistance, resistance using the law, of which you've given so many really vivid and important examples. Can it only be organized nationally, or should there be an EU-wide, or should there be really a transnational resistance that needs to be organized against authoritarian diffusion? Because what you've also shown very, very clearly is the borrowing from one to the other, of a toolkit, a script. So, it's not just the rhetoric, but it's also the legal toolbox, so that actually, one could be better prepared elsewhere for what is coming one's way.
KS:Transnational organizing is absolutely essential, because the autocrats rely on having what they're doing visible only in one state. So, somebody has to be able to say, to the civil society of another country, "Here's what happened to us. This may happen to you." And one place where you see transnational organizing really at its best is right now with what's happening in Israel. So, the Israeli government comes in, they immediately start to attack their Supreme Court.And they have a system identical to Hungary's, in the sense that it's a unicameral parliamentary system. There's no upper house, there's no federalism, there's no independently elected president.
The only check on that system was the Supreme Court. Ditto with Hungary, with the constitutional court. So, Netanyahu comes in with his new right-wing coalition, and they immediately propose to dismantle the independence of the judiciary. And what was interesting was that immediately, people in Israel recognized, "We've seen this before." So, within a week or maybe two weeks of the legislation first being, unveiled, I start getting calls from all my Israeli law professor friends, saying, "Will you do a Zoom, like, immediately on how this worked in Hungary. What happened?"
So, I did it. So, other people who know the Hungarian situation, you know, the Polish situation, have been counseling exactly the Israeli opposition. And one of the things we all said was, "You've gotta get people out to the streets before the law passes." Because once it's law, it's law, right? And your only moment to really push it back is to get out there before it passes. Get mass demonstrations, try as much as you can to get people who would be in the base of the people who are now in, of these parties that are now in the government.
It wasn't just the Israeli left that was out there, but they tried to get people from all of these moderate conservative parties to join them, as well as more extreme conservatives who still believe in constitutional government. And they've been getting hundreds of thousands of people in a small country out to the streets, every single Saturday night. I think it's 25 weeks now, but, you know, month after month after month, including after the government said, "Well, we're gonna shelve it for now and we'll come back to it later." The people are still going to the streets, saying, "Not yet, not yet. Don't bring it back. We're still here. We're not demobilizing until you say that you are not gonna do it."
And so far, they haven't done it. The government has held off. And I think that level of movement in the streets is useful, but I also think that the Israelis wouldn't have done it without knowing that this is part of a broader thing. And for those of us who saw democracies fail one after the other, to say, "Don't make the same mistakes. You know, do it differently this time. Do something else." You know, and there has been all this transnational communication around resistance, and the Israelis are doing it the way the Hungarians and the Poles should have. But the Hungarians and the Poles didn't understand it was happening, because they were, you know, among the first. So, again, transnational coordination is crucial in this process.
SR: Thank you so much, Kim, for this fascinating and wide-ranging conversation, which has a really, really valuable comparative perspective on both the use and the abuse of law, but also of constitutions, for dismantling liberal democracy from within, and cementing authoritarian rule, but also for some really,reallyinteresting ideas about how resistance could be organized, both bottom-up, and transnationally, and from a institutional scale above the nation-state. So, thanks so much for being here with me today.
KS: Thank you so much for having this series, and for educating everybody. That's part of the process. Thank you.
SR: Let me summarize a few points from my conversation with Kim Lane Scheppele on the transformation of liberal democracies into electoral autocracies. Autocratic legalism, as we heard, is the process by which democratically elected leaders perpetuate their power using legal and constitutional means to illiberal ends. The use of parliamentary majorities, or abuse rather, to enact legal changes in this direction gives these changes a cloak of legitimacy. It allows the systematic dismantling of liberal principles, separation of powers; the attack on minority rights may go unnoticed until it is often too late. A comparison of Turkey, Hungary, Poland, and the United States shows not only the use of similar strategies but also of explicit borrowing across these soft authoritarian regimes, which are all well-linked with one another. Contrary to the claims of Orban or Kaczyński that they are merely voicing the grievances of the Hungarian or the Polish people and responding to popular demands, autocrats in fact first invent, for example, the fear of immigrants, which they then instrumentalize, a point that Ulrike Flader also made last fortnight about the recent Turkish election campaign[iii].
In my earlier interview with Kim Scheppele in season 1 of this podcast[iv], she had analyzed decades of gerrymandering and voter suppression in the United States which has skewed the outcome of elections systematically. And so did Tim Snyder argue in season 1[v] just before Trump was voted out of the White House, elections in the United States are free but can hardly be called fair. For as we heard today Republicans no longer believe in basic principles of democracy, namely a peaceful transfer of power after the polls. Kim also pointed to the pernicious effects of packing the courts in Hungary, Poland, but also how partisan ideological decisions erode the legitimacy of the Supreme Court in the US paving the way for creeping authoritarianism. She also argued, however, that law can be an effective instrument to combat the hollowing out of liberal constitutional principles both at the national and transnational scales. Kim too suggests that the EU could have done much more to stop democratic backsliding within the EU by using the legal sanctions at its disposal, which have finally been deployed against both Hungary and Poland. But ultimately authoritarianism will be defeated at the ballot box by educated, vigilant citizens using their vote but also their knowledge of law to defend and also to deepen democracy.
This was the second episode of season 7. Thank you very much for listening. Join us again for the next episode in two weeks' time, when I'll discuss the relationship of democracy and demography, by focusing on reproductive rights. I'll interview Alejandra Gutierrez, social anthropologist and Peruvian feminist activist, about the ongoing mobilization against two decades of forced sterilizations in Peru.
Please go back and listen to any episode you might have missed. And of course, let your friends know about the podcast if you're enjoying it. You can stay in touch with the work of the Central European University at www.ceu.edu, and with the Albert Hirschman Centre on Democracy at www.graduateinstitute.ch/democracy.
[i]Scheppele, K. L. (2018). Autocratic Legalism. The University of Chicago Law Review, 85(2), 545–584. https://www.jstor.org/stable/26455917
[ii] Bartels, L. M. (2023). Democracy erodes from the top: Leaders, citizens, and the challenge of populism in Europe. Princeton University Press.
[iii]Randeria, S (Host). (2023, June 26) Ulrike Flader on Turkey at the Crossroads(Audio podcast). Retrieved from: https://www.ceu.edu/article/2023-06-28/ulrike-flader-turkey-crossroads
[iv] Randeria, S (Host). (2020, November 26) Undermining Democracy by Democratic Means: how can we stop it? (Audio podcast). Retrieved from: https://www.iwm.at/node/2838
[v]Randeria, S (Host). (2020, October 8) A Trumpian Blip or a Fundamental Flaw in American Democracy? (Audio podcast). Retrieved from: https://www.iwm.at/node/2824