By Alexander Gelfand
UW Law scholars seek to understand understand—and resist—authoritarianism.
In an article published last year in the Wisconsin Law Review, University of Wisconsin Law School Professor Heinz Klug noted that members of the School’s faculty have, in recent years, gained increasing recognition for their “contributions to debates over both domestic and international constitutionalism and democracy.”
Their timing could not be better.
Over the past two decades, much of the world has fallen into what Stanford political scientist Larry Diamond has dubbed a democratic recession, characterized by a gradual loss of freedoms and the rise of a new breed of autocrat.
Democratic scorecards calculated by organizations such as Freedom House and the Economist Intelligence Unit, which rate the robustness of electoral processes, political rights, and civil liberties, show significant reversals in countries from Afghanistan to Zambia. Even North America and Western Europe—home to the world’s oldest and most developed democracies—show worrying signs of democratic backsliding.
These declines in democracy are often linked to illiberal populists (think Hungary’s Viktor Orbán or Turkey’s Recep Tayyip Erdoğan) who win competitive elections, then go on to eviscerate by law the constitutional and institutional checks on their powers—a phenomenon known variously as autocratic legalism, electoral authoritarianism, and rule by law.
Yet if autocracy, authoritarianism, and antidemocratic movements appear to be on the rise everywhere, nowhere are they exactly the same. Understanding how autocrats and authoritarian regimes interact with the law—how they weaken the independence of the judiciary or manipulate electoral and constitutional systems to their advantage—is crucial to developing effective strategies for resisting them.
Here, five UW Law School faculty with expertise in autocracy, authoritarianism, and the law share their insights into what, exactly, is going on—and what can be done about it.
Roman Z. Livshits & William Voss-Bascom Professor of Law & Political Science
It’s often assumed that authoritarianism and rule of law are mutually exclusive.
In fact, said Kathryn Hendley, “the story is much more complicated.”
Since the 1980s, Hendley has used fieldwork, surveys, and focus groups to study how Russians perceive their legal system. Her work reveals much about how autocracy shapes legal institutions, and how it affects people’s attitudes toward democratic principles such as judicial independence and equal treatment under the law.
Among other things, Hendley has shown that while ordinary Russians are wary of going to court over cases that have political overtones or involve tangling with the wealthy and the well-connected, they are willing to do so to resolve more mundane disputes.
And they often come out on top: in Russia’s justice-of-the-peace courts, which handle simple civil, administrative, and criminal cases, private plaintiffs enjoy a better track record than the state.
As a result, Hendley said, “the law can still mean something if you are an ordinary person.”
Alas, her work offers little hope that legal professionals will lead the charge for greater democracy in Vladimir Putin’s Russia.
“There is a small group of incredibly courageous lawyers. But most people are keeping their heads down.”
She has found, for example, that Russians who are motivated to study law by a desire to change and improve society are also more likely to support Putin’s policies. She also noted that the Russian system of legal education remains an undergraduate enterprise based on rote learning—and is therefore an unlikely breeding ground for pro-democracy activists.
“There is a small group of incredibly courageous lawyers,” Hendley said, pointing to those who represent government protesters and opposition leaders. “But most people are keeping their heads down.”
Evjue-Bascom Professor in Law
A native of South Africa, Heinz Klug participated in the struggle against apartheid and spent eleven years in political exile before returning home to help his country make the transition to a constitutional democracy. More than thirty years later, Klug feels that South Africa is at a turning point, balanced between the antidemocratic tendencies of its politicians and the democratic resilience of its institutions.
Klug has analyzed the antidemocratic tactics employed by former South African President Jacob Zuma and his allies to shield themselves from prosecution on charges of corruption. These include lawfare, or the deliberate use of litigation to protect malfeasance; and state capture, which Klug described as “a process by which people in authority put people into institutions who will be loyal not to the system but to them, rather than people who are committed to the institutions or the constitution.”
For example, to make himself untouchable, Zuma strategically placed loyalists in key posts within the national intelligence, tax, and prosecution agencies. He also sought to undermine the Public Protector, an independent administrative oversight body that has the power to investigate, report on, and remedy improper conduct in all state affairs.
“You don’t want to reinvent the wheel.”
Klug said South Africa’s courts pushed back against these autocratic maneuvers with some success, and he is currently studying the history and practice of legal resistance to authoritarianism to better understand how democracies around the world can protect themselves.
Klug plans to survey the use of measures ranging from cultural boycotts to economic divestment and trade sanctions, all of which were employed in the anti-apartheid struggle—and which find echoes in current efforts to pressure Russia to change its conduct of the war on Ukraine. He is also interested in the legal tactics that were employed by abolitionists in the 18th and 19th centuries.
There are limits to such methods: they take time to work, and the domestic costs they impose can make them difficult to implement. (Witness the economic pain that the West has endured by imposing sanctions against Russian oil and gas.) Still, said Klug, they can be extraordinarily powerful. And studying how governments and social movements have fought authoritarianism in the past can give us the tools to do so today.
“You don’t want to reinvent the wheel,” he said.
Voss-Bascom Professor of Law and Dean of International Studies Emeritus
David Trubek, who is a senior advisor to the Project on Autocratic Legalism (PAL)—a group of international scholars that studies how rising autocrats use law to consolidate power and how law can be used to resist them—says the new wave of authoritarians lacks the totalitarian tendencies of their 20th century predecessors.
Rather than sweeping aside existing legal structures and institutions, this modern breed of aspiring dictator instead reshapes them to cement power—and avoid having to compete in fair elections ever again.
“The new autocratic processes proceed to some extent through established legal channels,” Trubek said. “They don’t try to completely reverse the constitutional order and create a new order, like the Nazis or the Communists did. They try to manipulate the existing order, which means that they deal with the law in a very complicated and sophisticated way.”
Trubek is collaborating on a PAL project called Global Resistance to Authoritarian Diffusion, or GRAD, aimed at evaluating the ways in which states, international courts, and non-governmental organizations support resistance to authoritarianism around the world. These include carrots, such as foreign assistance initiatives aimed at bolstering democracy abroad, and sticks, such as sanctions and human rights litigation.
“The new autocratic processes proceed to some extent through established legal channels. They try to manipulate the existing order, which means that they deal with the law in a very complicated and sophisticated way.”
Toward that end, Trubek recently co-authored a paper that considered whether sanctions imposed on Russia were likely to influence Vladimir Putin’s war on Ukraine. And his research on Venezuela, where sanctions have inflicted considerable economic pain without shifting the behavior of either Hugo Chávez or his autocratic successor Nicolás Maduro, highlights why it is best to prevent authoritarianism from gaining purchase in the first place.
“Once an autocratic regime takes hold, it is extremely difficult to dislodge,” said Trubek.
Professor of Law and Director of the Global Legal Studies Center
With its long list of autocrats and would-be dictators—Hugo Chávez and his successor Nicolás Maduro in Venezuela, Jair Bolsonaro in Brazil, Daniel Ortega in Nicaragua, Andrés Manuel López Obrador in Mexico—Latin America would seem to be a hotbed of authoritarianism.
But as Alexandra Huneeus points out, the situation is more complex than it might first appear.
Admittedly, the current crop of Latin American strongmen have much in common, including a predilection for abusing the language of law, rights, and constitutionalism to disguise their will to power.
“They use it to mask what they’re really doing, which is riding roughshod over the balance of powers and the independence of the judiciary,” said Huneeus, who studies human rights across the region.
“If you’re not going to respect the local courts, you’re not going to respect the international courts, either.”
Chávez, for instance, was quick to denounce as corrupt any judge who failed to toe his government’s line—and just as quick to pack Venezuela’s highest court with loyalists who would do his bidding.
But not all Latin American countries are equally susceptible to authoritarianism.
In Huneeus’s native Chile, the same public disaffection that led voters to elect illiberal populists elsewhere in the region instead led to calls for a new constitution to replace one written during the dictatorship of General Augusto Pinochet—the result, perhaps, of the country’s relatively strong democratic institutions and its relatively low levels of corruption.
The region even has a unique transnational tool for supporting constitutional rights and the rule of law: the Inter-American Human Rights System, which includes a court that adjudicates cases and a commission that holds hearings and issues statements.
The system has successfully pressured countries such as Mexico and Colombia to improve their behavior. But its ability to restrain authoritarianism is limited by the respect it commands among individual autocrats, as evidenced by Chávez’s decision to withdraw Venezuela from the court in 2012—a decision that Huneeus did not find surprising.
“If you’re not going to respect the local courts, you’re not going to respect the international courts, either,” she said.
George Young Bascom Professor of Law and Director of the East Asian Legal Studies Center
How can you tell when a country is sliding into authoritarianism? What factors are most important to safeguard democracy? And just how vulnerable is the United States to autocracy?
Decades studying Asian legal systems have given John Ohnesorge a unique perspective on these questions.
The region includes authoritarian states like China, Vietnam, and North Korea; struggling democracies such as Thailand and the Philippines; and success stories like Taiwan, South Korea, and Japan that transitioned from authoritarian regimes to vibrant democracies.
Drawing on these and other examples, Ohnesorge emphasizes the importance of distinguishing between genuine threats to democracy and threats to particular policy agendas. Elected leaders who use the law to undo projects of either the left or right might raise people’s ire, but their actions aren’t necessarily indicative of creeping authoritarianism.
For Ohnesorge, that requires attacks on rights and institutions directly related to elections—attacks that are meant to prevent the people from choosing their leaders, and to keep power from changing hands.
Yet relying on a purely procedural definition of democracy, in which those who win elections can do whatever they want, can lead to unjust outcomes.
“That’s why the American system has been a model for so many countries,” said Ohnesorge. “It’s a liberal democracy, meaning that there are core individual rights.”
An independent judiciary is therefore key to maintaining democracy; for if the courts won’t defend citizens’ rights and enforce election laws, politicians become free to hollow out vital institutions, leaving only a veneer of sham democratic processes in their wake.
“That’s why the American system has been a model for so many countries. It’s a liberal democracy, meaning that there are core individual rights.”
That, said Ohnesorge, is precisely what happened in South Korea under the military dictator Park Chunghee. The country possessed the hallmarks of a multiparty democracy, including opposition parties, a Supreme Court, and a constitution. But the regime had so rigged the electoral system that it couldn’t lose, and so thoroughly intimidated the judiciary that the courts posed no real threat to its power.
Could something like that happen in America?
Ohnesorge doubts it. The cultural norms that support democracy, including the professional ethos shared by lawyers and judges, are too deeply entrenched here for an autocrat to easily seize control. And our federal system of government would make it difficult for one to consolidate power—especially without military support, which remains highly improbable.
“I suppose there are some people who would like to do that here,” Ohnesorge said. “But I think the odds of succeeding are pretty close to zero.”