in association with the Centre for Socio-Legal Studies and Wolfson College, University of Oxford

The Authoritarian’s New Clothes:

Tendencies Away fromConstitutional Democracy

Gábor Attila Tóth

The Foundation for Law, Justice and Society

The Social andPolitical

Foundations ofConstitutions

Policy Brief

www.fljs.org

The Foundation for Law, Justice and Society

© The Foundation for Law, Justice and Society 2017

The Social and Political Foundations of Constitutions

Constitutions take various forms in different societies, but essentially determine how policyissues, often of fundamental social importance, are to be decided and implemented.Constitutions and constitutionalism are usually studied either doctrinally, as the source offundamental legal doctrine, or conceptually, as the subject of philosophical methods ofanalysis. The approach of this programme offers a third way: the study of constitutions andconstitutionalism in their social context, emphasizing their social character and role, theirsocial goals, and their links to other parts of society, especially economic and politicalaspects.

Drawing on the research and literature of politics, economics, and sociology, theprogramme examines the concept and practice of representation, the legislative processand the character of modern administrative government, and the role of the judiciary inshaping constitutional instruments such as bills of rights.

n Modern authoritarianism, a form of government, is multifaceted. As a broad term, it

refers to arbitrary governmental authority. The common feature of authoritarian states

is the enforcement of obedience to a central authority at the expense of personal

freedoms, rule of law, and other constitutional principles.

n Although contemporary authoritarians have not entirely abandoned the mechanism of

their ancestors, authoritarianism has been undergoing a reinvention in recent years.

The most salient new feature of authoritarianism is that, under a façade of

constitutionalism, it claims to abide by democratic principles.

n Many authoritarian regimes, from Azerbaijan and Russia to Turkey and Venezuela, feign to

be normal constitutional democracies, legitimizing themselves through popular elections

and referenda. Incumbents are typically elected leaders who adopt constitutions and laws

that apparently correspond to legal systems in democratic countries.

n In such systems, the seemingly democratic constitutional norms are merely protective

camouflage, designed to create systematic advantages for the incumbents. The practice

of voting is controlled by those in power, and rival political parties are either

non-existent or severely constrained. As a result, citizens are not offered a free and fair

choice among various competitors in elections.

n Given the lack of legal importance and applicability of authoritarian constitutions,

which are political declarations only, existing institutional checks within the

constitutional system are illusory. Constitutional courts, for example, may play a

legitimizing role instead of fulfilling their task as final guardians of fundamental rights.

n Authoritarian governments do not necessarily prohibit civil society organizations,

preferring instead to impose administrative burdens and found pro-government

quasi-NGOs to oppose them.

n Authoritarian leaders typically exercise their constitutional power arbitrarily,

disrespecting both other branches of government and independent civil organizations.

The key indicators of a developing authoritarian government may include degrading

the role of parliament by reducing it to mere decorative status; attacking the

independent judiciary; limiting the powers of the constitutional court; curtailing civil

liberties and freedom of the press; and introducing arbitrary emergency measures by

invoking threats posed by financial crisis or terrorism. Therefore, authoritarian power

holders are difficult to replace in a democratic way.

n The prospects for a culture of constitutional democracy currently in peril depend not

only on institutional checks and balances but also on the dynamic of a strong civil

society.

Executive Summary

THE AUTHORITARIAN’S NEW CLOTHES . 1

2 .THE AUTHORITARIAN’S NEW CLOTHES

More than half of the countries in the world are farfrom what we would consider ‘normal’ constitutionaldemocracies. Many of them are under authoritariangovernments or even tyrants. One-third of thepopulation of the globe has never experiencedconstitutional democracy within open and freesocieties. What is more alarming is that, in contrastwith previous waves of democratization that havespread across the globe, authoritarian tendencieshave led to the disintegration of liberal democracies.Numerous thinkers warn that the twenty-first centurycould become a century of authoritarianism as a resultof the institutional erosion of democracy (Diamond,Plattner and Walker 2016). The cases of Russia, Turkey,Hungary, Poland, and many other countries epitomisethis phenomenon, in which the country in questionadopts constitutional transformations that moves itever further from, rather than toward, democraticprinciples. Countries from Azerbaijan to Venezuelademonstrate that, when a populist leader gainsconcentrated power, a reshaped constitution mayserve authoritarian aspirations. What’s more, as theemerging Trump administration in the United Statesshows, even a democratic system with a longpedigree of democratic traditions has not beenentirely immune to the outbreak of authoritarianpolitical ideas and practices.

In reaction to unsettling constitutionaldevelopments allied with the decline of globalfreedom, a new school of thought has emerged toaccount for the fact that many such emergingregimes ostensibly behave as if they wereconstitutional democracies, but, in fact, aremajoritarian rather than consensual; populist insteadof elitist; nationalist as opposed to cosmopolitan; orreligious rather than secular.

Historically, authoritarian leaders murdered orviolently suppressed opponents, imprisoned

journalists, suspended legislation, and abolishedcourts. Autocracy as a political system meantnothing more than the limitless and arbitrary powersof a single ruler. The power holder is not constrainedeither by legal norms, institutional checks, or the willof citizens at the ballot box. There might, however,be de facto limits, such as tyrannicide, coup, revolt,or foreign intervention.

In comparison with its despotic or tyrannicalpredecessors, modern authoritarianism is amultifaceted phenomenon. The twentieth centurygave birth to totalitarianism, a new type ofautocracy, both in Nazi Germany and in the StalinistSoviet Union (Arendt 2004). While identifying atotalitarian system might seem straightforward (aruler with absolute power, coercion imposedthrough violence, strong mobilizing ideology, thepeople fully subservient to the state, single-partyregime, and militarism), authoritarianism, as aweaker form of autocracy, can be much moredifficult to distinguish from weaker forms orpractices of democracy (Linz 2000; Borejsza andZiemer 2006; Levitsky and Way 2010). Althoughauthoritarian constitutional systems varyenormously in terms both of their politicalbackground and legal features, some commonelements of authoritarian transition can be detected.

Façade constitutions

The constitutional rules and institutions inauthoritarian systems are often not fundamentallydifferent from those to be found in constitutionaldemocracies. A good example might well be theSyrian Constitution, which reads as follows: ‘1. Freedom shall be a sacred right and the state shallguarantee the personal freedom of citizens andpreserve their dignity and security’. In contrast withconstitutional democracies, typical authoritarian

The Authoritarian’s New ClothesTendencies Away From Constitutional Democracy

THE AUTHORITARIAN’S NEW CLOTHES . 3

constitutions are solely paper constitutions oftencharacterized as ‘semantic camouflage’ or ‘façadeconstitutions’.

As regards key legislative, executive, and judicialbodies, authoritarian constitutions typically do notserve as normative benchmarks; they are onlydescriptive maps of powers (Ginsburg and Simpser2014). Moreover, in authoritarian systems, theconstitution may lack legal relevance, because allpolitical power, including that of revising theconstitution, resides with the leader(s) of the rulingparty. It is thus political practice rather thanconstitutional regulation as such which distinguishesthe one from the other. Examples of suchconvergence include the extensive use of executivepowers to legislate by emergency decree, theunwillingness of the legislature and the courts tocheck this practice, and the broad interpretation ofconstitutional limits on free speech to prosecutejournalists and other vocal opponents. For instance,the 1993 Russian Constitution is not fundamentallydifferent from the 1958 French Constitution (whosepresidential form of government it has adopted), yetit functions entirely differently; for this reason, inorder to understand how an authoritarian system isreally governed, the actual political practice must beexamined, rather than the constitutional text.

Besides being a descriptive map of powers, theconstitution of an authoritarian system — if nottechnocratic — indicates ideological or religiouscommitments. It may find its foundations in religiousconsiderations. The Constitution of Egypt isillustrative: it declares that ‘Islam is the religion of thestate’, and ‘the principles of Islamic Sharia are theprinciple source of legislation’. The HungarianConstitution mentions that ‘we are proud that … ourcountry became part of Christian Europe’, and ‘weacknowledge the nation-preserving role of theChristian faith’. Such a declaration does not simplyrecognize the historical role of religion, butexpresses that the Constitution is based upon atraditional faith. Consequently, it identifies itself withthe moral and political foundations of a certain faith,in spite of the fact that citizens may be a plurality ofethical and religious division.

Authoritarian constitutions may also reflect racial orethnic preferences. The constitutional concept of thenation, the very subject of a constitution, may be

identified as an intellectual and spiritual communityin many instances. As an example, the South AfricanConstitution under apartheid ensured fundamentalpolitical, liberty, and equality rights — not for all, butfor certain racial groups only. A differentcharacteristic can be that the constitutional textinsists that there is one single ethnic nation thatbelongs together, regardless of the habitualresidence and effective link to the state of othergroups, while those resident citizens who belong tonational minorities of the given state are notincluded in the category of nation. These concepts ofthe nation diverge from those egalitarianconstitutional standards that admit that modernnation states are multi-ethnic societies.

Ruler(s)

Authoritarianism can be frequently identified withthe name of the person exercising dominion. At thedawn of the twenty-first century, many potentatescontrol constitutional systems across the globe.Examples of states which are frequently depicted asauthoritarian systems include Azerbaijan underIlham Aliyev, Belarus under Alexander Lukashenko,the Philippines under Rodrigo Duarte, Russia underVladimir Putin, Syria under Bashar al-Assad, Turkeyunder Recep Tayyip Erdoğan, and Zimbabwe underRobert Mugabe. Hungary, an EU Member State ledby Prime Minister Viktor Orbán, can be seen as anexample of rising authoritarianism. However, inPoland, Jarosław Kaczyński, the authoritarian leaderof the governing Law and Justice Party and de factoleader of the country, occupies no key position withconstitutional competences. This kind ofpersonalized regime can be easily identified in termsof a charismatic leader whose authority derives fromthe force of personality. Charismatic dominationrests on the general belief that the leader isendowed with exceptional powers or qualities, notaccessible to the ordinary person, and public officialsare required to show personal devotion to the ruler.

In contrast to the personalistic rule of authoritarianindividual leaders, a new type, bureaucratic-militaryauthoritarianism, emerged in Latin America in the1960s: first in Brazil and Argentina, then in Chile andUruguay. The main feature of these systems was thatthe military as an institution led the country,frequently by a rotation of presidency. This type ofsystem lacks the dominion of ideology or

nationalism, but entails fierce repression. Thebureaucratic-military system has its roots — withpersonalistic supremacy — in interwar periodPoland (Józef Piłsudski, First Marshal) and Hungary(Miklós Horthy, Admiral and Regent) as well as inFrancoism (Spain) and Kemalism (Turkey). Secular,military-led authoritarianism also appeared strikinglyin Greece, the Middle East, North Africa, and theAsia-Pacific region. Although bureaucratic-militaryauthoritarianism had almost vanished in SouthAmerica by the early 1990s, new forms of secular,populist authoritarian systems, sometimes withmilitary leadership, have appeared in many regionsof the world.

Another type of an authoritarianism exists in thePeople’s Republic of China, a ‘socialist state under thepeople’s democratic dictatorship led by the workingclass’, where single-party rule by the CommunistParty stands in for a single commanding leader.Finally, the authority of the Kim dynasty, threegenerations of rulers in North Korea, is closer tototalitarianism, a stronger form of autocracy, than toauthoritarianism. The Preamble of the Constitution,by way of illustration, mentions the ‘great leaderComrade Kim Il Sung’ no less than sixteen times.

The leadership of an authoritarian system is complex,but, in essence, two subtypes and their amalgam canbe differentiated. One of them is charismaticauthority, whereby apparent exceptional personalsuperiority qualifies a politician as the ultimate leaderof a state. Under certain circumstances, anothersubtype can be traditional authority, wherebyinstitutionalized practices (for example, dynasticsuccession, a true balance of power within the rulingclique) confer public power on the leader.

Hegemonic voting practices

Modern authoritarian systems rarely reject decision-making processes by which the people chooseindividuals to be members of legislative bodies or tohold other public offices. On the contrary, manycontemporary authoritarianisms legitimizethemselves as ‘democracies’ through elections.However, voting practice in authoritarianconstitutional systems is hegemonic by nature,meaning that such systems are without, or deficientin, many constituting elements of free, fair, and

competitive elections required by both internationallaw and principles of constitutionalism. By virtue ofthis, authoritarian heads of government may keepthe process and outcome of the vote under strictcontrol.

‘Elections without choice’ are commonly associatedwith harsh authoritarianism. For example, Soviet-type Central and Eastern European countries werecharacterized by a single-party system (Hungary,Romania) or a dominant-party system(Czechoslovakia, Poland) without the possibility ofcompetitive elections. Citizens with voting rightswere allowed to vote, but only for the candidates of,or a party-list dominated by, the ruling party. As forcontemporary constitutional systems, the People’sRepublic of China’s Constitution proclaims that thecountry is ruled ‘under the leadership of theCommunist Party of China’. The parliament of China,the highest level of constitutional institution, ismeant to be the National People’s Congress, which isnot an elected body, but composed of delegatesfrom provinces, autonomous regions, municipalities,and the armed forces. Only Local People’sCongresses at the lowest level are elected directly bythe voters. Although, ostensibly, China is amultiparty state, in reality, minor parties andindependent candidates cannot form a democraticopposition because of governmental intervention.

Today, many authoritarian systems constitutionallyretain multiparty elections and provide scope foractivities of opposition movements. What makesthem distinctive is that the election is managed so asto deny opposition candidates a fair chance. Legalnorms and practices ensure the dominance of theruling party. The governing party may enjoy undueadvantage because of partisan changes in electionlaw, unequal suffrage, gerrymandering of electoraldistricts, a rise to the electoral threshold, restrictivecampaign regulations, far from independentassessment of the election, and biased mediacoverage that blurs the separation between politicalparty and the state. The constitutional struggleagainst authoritarianism, particularly in Africa andLatin America in recent decades, has often focusedon the introduction of presidential term limits, andthe attempts of autocrats to have these term limitsremoved, by constitutional reform and/or byreinterpretation of the term limit by the

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THE AUTHORITARIAN’S NEW CLOTHES . 5

constitutional court (e.g. Peru). This scheme has beenused in Burundi and Rwanda, where controversialthird terms entrenched the position of theincumbent presidents. Modification of voteridentification and registration laws may result in defacto disenfranchisement (e.g. Zimbabwe underPresident Mugabe). Electoral laws may unfairlypromote voting by the diaspora (e.g. Senegal), orhinder the voting ability of émigrés (e.g. Venezuelaunder Chavez). Even landslide victories forauthoritarian leaders, or their parties, may beattributed to a range of tools at the disposal ofincumbents, such as manipulation of the public bymass media (Russia), open electoral fraud, orstrategic delays to scheduled elections (Lebanon).

Authoritarianism often goes hand in hand withpopulism. In many countries, the relative popularityof the ruling party derives from the global trendtoward populist leaders who exploit popular anti-system and anti-establishment sentiments; but it isalso typical that a significant section of the massmedia is de facto captured, including de jure

takeover of public media, and the general public issystematically manipulated by the government.Leaders of the opposition parties and socialmovements are frequently characterized asbetraying their nation, or agents of external powers.As a consequence, while many authoritarian systemsappear to be majority backed by the electorate(through both popular votes and referendums), thiselectoral success is often based on one-sidedmodifications to the constitution and electoral laws,and subsequently, unfair elections.

Shortfall of institutional checks

Although the constitutional structures ofauthoritarian states inevitably consist of the threemain parts — the legislative, the executive, and thejudicial branches of government — they are notbased upon the principles of separation of powersand the rule of law. Modern authoritarianism mayestablish the entire set of formal institutionsassociated with constitutional democracy, yet theseserve as either a tool of authoritarian imposition, or afaçade of representation (Schedler 2013: 54–61).

Structurally or in practice, constitutional powers areutterly unbalanced. The executive branch —

especially the head of the executive: the monarch(e.g. in Saudi Arabia), the generalísimo (e.g. in Spainunder Franco), the president (e.g. in Turkey underErdoğan) or the prime minister (e.g. in Hungary) — issuperior in power. Formal and actual power maydiffer significantly, as in Russia under the presidencyof Medvedev, or formal governmental dominancemay be subordinate to informal party dominance, asin the People’s Republic of China. Another typicalexample of this is the far-reaching influence of thepolitburo, the principal policymaking body of theCommunist Party in Soviet-type communist regimes.

Clearly, constitutional democracy may take variousinstitutional forms. It may be a monarchy or arepublic; it may have a presidential or aparliamentary system; it may be a federal or a unitarystate. Nonetheless, comparative surveys ofgovernmental systems reveal that some presidentialsystems have difficulties sustaining democraticpractices. Under a range of cultural and socialconditions, a parliamentary system is moredemocratically robust than a presidential one.Depending on political traditions, culture, and theelectoral system, the transformation of the executiveand the legislative branches into a presidentialsystem may lead to authoritarianism, yet this is notnecessarily the case. To illustrate: although both the1958 French and the 1993 Russian Constitutionswere seen as reactions to parliamentary paralysis,with aspirations for a strong executive, Frenchpolitical and constitutional practice managed tomaintain constitutional democracy over the longterm; whereas, by contrast, since the relatively liberalbeginnings of Jelzin era Russia, the country underPutin has moved dramatically toward theauthoritarian practices of the post-Glasnost era,although there have been minimal changes to theconstitutional text itself.

An important stepping stone to authoritarianismseems to be the broad and/or ill-defined powers,including emergency powers, of the executive, the'guardian of the Constitution'. In a constitutionaldemocracy, a state of emergency should provideonly temporary conditions for exercising otherwiselegitimate power. A temporarily modifiedconstitutional democracy means that someconstitutional rights are restricted, but the mainpurpose of the state of emergency is to restore the

democratic legal order and the full enjoyment ofhuman rights. In a regime that seeks to distanceitself from liberal democracy, the ruler’s declarationof a state of emergency serve to institutionalize anarbitrary executive power unhampered by legalconstraints, thus creating a long-standing specialpower beyond the rule of law. As the constitutionaldevelopments in Turkey show, by referring toterrorist threats and other imminent dangers, thehead of the executive can successfully initiate awide-ranging constitutional amendment, leading toa sovereign-led authoritarian system.

Populist authoritarian leaders often invoke the ‘willof the people’ to undercut the role of theconstitutional judiciary, the institutional safeguardto protect the rule of law and individual freedoms.Weaker legal ties mean, however, that it is not onlythe judiciary but also other democratic institutionsthat are undermined. It becomes possible tosidestep representative government if the popularwill is not legally constructed or channelled, butrather the echo chamber of a dominant leader.Consequently, populist authoritarian leadershipemerges at the expense of not only constitutionaljudiciary but also of parliamentarism.

As an alternative to representative democracy,several authoritarian forms of government prefercorporatism to competitive multiparty systems.Although authoritarianism has never availed itselfexclusively of a corporatist model, and corporatismhas never been exclusively an authoritarianattribute, in many cases, non-democraticconstitutional systems grant large interest groupssuch as business corporations, trade unions,professional organizations, churches, or universitiesa representative constitutional function.

Some transforming systems reportedly replace therole of the constitutional judiciary withparliamentary sovereignty. In practice, constitutionaland statutory regulations, as well as constitutionalconventions, are ‘reformed’, and result in politicallyexpedient modifications to anything from thepersonal composition (‘court packing’),competences, and institutional and financialindependence of the constitutional court inquestion (Landau 2013; Tushnet 2015). By way ofexample, this is precisely how the Hungarian and the

Polish Constitutional Courts were neutralized.Decisions of the constitutional Justices, appointedaccording to the will of the authoritarian leader, maycontribute to the reinforcement of the system. Theonly exception is Kyrgyzstan, where theConstitutional Court was abolished with theadoption of the Constitution of 2010, when some ofits powers were transferred to the Supreme Court.

As the record of the Russian Constitutional Courtdemonstrates, altered but not abolished tribunalsmay serve as a tool of authoritarian imposition.Vladimir Putin deployed constitutional review tohelp centralize and consolidate his authoritarianpower. Moreover, authoritarians occasionallytolerate painful judgments to construct a façade ofconstitutionalism, provided that the judiciary doesnot threaten the core of authoritarian institutionaldesign (as was the case with the judiciary in Egyptunder President Mubarak). Invariably, the aimbehind such constitutional changes is to safeguardand promote the interests of a particular politicalforce without constitutional balances (Varol 2015:1689).

Restricted individual and collective rights

Many authoritarian constitutions formally declarefundamental rights for their citizens, but these arerarely legally enforceable. A common tactic is toconstruct a constitutional catalogue of fundamentalrights, ostensibly based upon the internationalstandards arising from the UN’s UniversalDeclaration of Human Rights and regional humanrights treaties. Yet the constitution will in factcontain a number of sections in direct contradictionwith international human rights law, typically,recognizing certain fundamental rights, but only tothe extent that these rights serve the interests of theruling political group or class.

Democratic transitions go hand in hand with therecognition of constitutional liberties. As arepresentative case, the protection of individualrights and democracy demands more and not lessfree speech after a successful constitutionaltransformation. Comparatively, authoritarian leaderstend to restrict it by capturing media. Althoughcriminal prosecution is still a tool forauthoritarianism, political leaders often opt for a less

6 . THE AUTHORITARIAN’S NEW CLOTHES

THE AUTHORITARIAN’S NEW CLOTHES . 7

blunt approach, opting to sue journalists and civilrights activists for defamation to silence dissent,rather than resorting to imprisonment, or blatantprohibitions or suppressions of journals, books, films,or websites. Freedom of speech and the press can bedenied or restricted in the name of any one of theruling class, the dominant religion, or protection ofthe head of state. It seems clear that, whererestrictions on free speech protect the ruler(s) inparticular or the executive in general, or indeedmembers of the majority (citing, for example, thedignity of a nation, a country, or a dominant ethnicgroup), instead of members of vulnerable socialgroups, such regulations constitute one aspect of anauthoritarian approach. In this way, the generalpublic is subject to systematic manipulation by thegovernment.

Similarly, racial or ethnic exclusions as well asrepression of civil society are among thecharacteristics of authoritarian constitutionalsystems. Although civil society organizations arerarely prohibited, many regimes from Algeria toVenezuela have adopted discriminatory, inflexible,and costly requirements for the registration andreporting of civil society groups. Likewise, ‘foreignagent’ laws have been used as a tool ofauthoritarianism; their primary aim being to curbcooperation between international and domesticNGOs (Belarus, Israel, Russia). Moreover, in manyregimes, government-organized non-governmentalorganizations (GONGOs) have been set up and/orfinanced by the executive in order to imitate civilsociety, promote authoritarian interests, and hamperthe work of legitimate NGOs (Egypt, Hungary, Russia,Syria, Turkey).

Comparative assessment

Contemporary authoritarianism can be positionedbetween totalitarianism and democraticconstitutionalism. Although authoritariangovernments often pretend to be democratic, theirmain features are incompatible with the principles ofdemocratic constitutionalism and of limitedconstitutional government. In other words,authoritarianism can be characterized by chronicshortcomings: narrowed political pluralism, absentor inadequate democratic institutions, denied orunenforceable fundamental rights, lack or shortfall

of constitutional checks and balances, andoppression of non-governmental organizations.

Many states considered to be on the road fromauthoritarianism to constitutional democracy appearto be turning back toward an authoritarian statearchitecture. Even though Europe is todayconsidered to harbour the most democraticconstitutional systems, during the past century, thiscontinent experienced the most inhuman,totalitarian forms of autocracy. What is more, aftermany waves of democratic transitions, authoritariantendencies have have emerged once again in Centraland Eastern Europe. Russia, having abandoned stepsto implement parliamentarian design after thecollapse of the Soviet Union, has becomeunquestionably a presidential autocracy. Azerbaijan,Belarus, Russia, Tajikistan, and some other post-Soviet states, indeed, much of Eurasia, constitutes anauthoritarian stronghold. In Turkey, followingKemalism and a chapter of secular, military coups, aset of institutions associated with constitutionaldemocracy were implemented, yet in recent years,the country has been turning toward a form ofauthoritarianism with some attributes of religiousfundamentalism.

In the Arab world, in line with revolutionary methodsof constitution-making, secular dictatorships werenot replaced by democratic constitutionalism, but byregimes closer to religious fundamentalism. In theMiddle East, Islamic absolute monarchy meanshereditary autocracy along Islamic lines, as can beseen, for example, in Saudi Arabia. The constitutionalrecord of Latin America may be characterized byboth bureaucratic-military authoritarianism andpeaceful transitions out of it. At present, Venezuela isjust one of a number of states in the region in whichpopulist heads of government are misusing theconstitutional system so as to remain illegitimately inpower. There is a long-standing authoritarianconstitutional regime in China under the rule of theCommunist Party, while a different ideology-basedauthoritarianism — theocracy — has beenestablished in the Islamic Republic of Iran.

The birth of the confederal United States of America,subsequently replaced by a federal butconstitutionally limited government, is seen as areaction to European monarchical and church-based

authoritarianism. Nevertheless, the democraticsystem of the US has not been entirely immune tothe outbreak of authoritarian political ideas andpractices.

The decay of liberal democracy and the rise ofauthoritarianism are often associated with thespread of populism across the globe. Contrary toconventional wisdom, populism — as politicalconcept and worldwide tendency — is not only anti-elitist or anti-liberal but also anti-democratic. Byrejecting political pluralism, deliberative proceduresof democracy, and institutional checks, populistleaders claim exclusive moral representation of ‘thepeople’ (Müller 2016). If a populist achieves thedesired aim — a strong executive power, unhinderedby legal constraints — the system will unavoidablybecome an authoritarian state.

Far beyond constitutional order, many authoritariansystems fall as a consequence of violent upheaval.Constitutional transformations rarely come withoutpersonal consequences for those at the helm.Authoritarian heads of states stand to lose not onlytheir constitutional power and political influence butalso their personal freedom through imprisonmentor exile, or, indeed, their lives, through assassinationor execution. Yet despite clear empirical evidence ofauthoritarian tendencies on each continent, it is alsoclear that peaceful, coordinated transformationsfrom authoritarianism to constitutional democracycan occur. The future of democraticconstitutionalism depends not only on institutionalchecks and balances but also on the continuedefforts of a strong civil society and the commitmentof an international community of stable democraticnations.

8 . THE AUTHORITARIAN’S NEW CLOTHES

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Borejsza, J. W. and Ziemer, K. (eds) (2006) Totalitarian

and Authoritarian Regimes in Europe: Legacies and

Lessons from the Twentieth Century. New York, Oxford:Berghahn.

Diamond, L., Plattner, M. F. and Walker, C. (eds) (2016)Authoritarianism Goes Global: The Challenge to

Democracy. Baltimore, Maryland: Johns HopkinsUniversity Press.

Ginsburg, T. and Simpser, A. (eds) (2014) Constitutions

in Authoritarian Regimes. Cambridge: CambridgeUniversity Press.

Landau, D. (2013) ‘Abusive Constitutionalism’ 47 U. C. Davis Law Review, pp. 189–260.

Levitsky, S. and Way, L. A. (2010) Competitive

Authoritarianism: Hybrid Regimes after Cold War.

Cambridge: Cambridge University Press.

Linz, J. J. (2000) Totalitarian and Authoritarian

Regimes. Boulder, London: Lynne Rienner Publishers.

Müller, J. W. (2016) What is Populism?

Philadelphia: University of Pennsylvania Press.

Schedler, A. (2013) The Politics of Uncertainty:

Sustaining and Subverting Electoral Authoritarianism.Oxford: Oxford University Press.

Tushnet, M. (2015) ‘Authoritarian Constitutionalism’100 Cornell Law Review 2, pp. 391–462.

Varol, O. O. (2015) ‘Stealth Authoritarianism’ 100 Iowa Law Review pp. 1673–742.

The Foundation The mission of the Foundation is to study, reflect on,and promote an understanding of the role that lawplays in society. This is achieved by identifying andanalysing issues of contemporary interest andimportance. In doing so, it draws on the work ofscholars and researchers, and aims to make its workeasily accessible to practitioners and professionals,whether in government, business, or the law.

Gábor Attila Tóth is Associate Professor ofConstitutional Law and Human Rights at the ELTEUniversity, Budapest and the University ofDebrecen, and Alexander von Humboldt ResearchFellow at the Humboldt University, Berlin.Previously, he gained visiting fellowship to theNew School for Social Research, New York; a DAADresearch fellowship to the Humboldt University;and an Oxford scholarship from the British Council.Between 2000 and 2010 he worked as adviser tothe Constitutional Court of Hungary. In 1994 hewas founder of the Hungarian Civil Liberties Union.He is author of numerous articles and eight books,including the edited volumes Constitution for a

Disunited Nation (CEU Press, 2013) and Human

Rights (Osiris, 2003).

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