Legal authoritarianism in low-capacity states: Examining emergency response and typologizing tactics

Authoritarianism is on the rise—but scholars have widely noted that many of today’s authoritarians are different from those of the past. Instead of using brute force, these “legal authoritarians” manipulate law to forward their illiberal aims, for instance to redefine terms like “human rights” or to form regional associations that facilitate trade and protect sovereignty. To date, research on these regimes has focused heavily on Russia, China, Hungary, and Poland. However, most of the world’s authoritarians operate in very different contexts from these cases—we might call them “low-capacity” in the sense that they may not be able to reliably monopolize violence, and may lack the international standing to set regional, let alone international, agendas. These authoritarians must be especially creative if they are to survive and thrive, combining legal authoritarian tactics with diverse and longstanding modes of authoritarian governance ranging from overt repression to patrimonial practices. As such, these contexts can serve as sites of authoritarian innovation. Their prevalence and distinct context make these regimes important to study both empirically and theoretically. The paper examines with three propositions central to understanding legal authoritarianism today. First, because this type of authoritarianism is defined by legal structures and practices, some have argued that it constitutes a state form, rather than just a set of tactics. Second, these authoritarian rulers are characterized by their recognition and instrumentalization of the inherent ambiguities of law. They often take advantage of gaps between the letter and spirit of the law, or law on the books and law in practice. Third, this produces a diverse set of outcomes in which authoritarians in otherwise weak positions weaponize law. For example, by creating a migrant crisis on the EU’s border, Lukashenko placed substantial pressure on EU immigration law. Other countries including Rwanda and Uganda have leveraged international justice mechanisms, and donor support of them, to centralize power in the aftermath of war. This paper examines how several legal authoritarians in low-capacity states respond to global crises, such as migration, climate collapse, and post-conflict reconstruction, to create a typology of tactics associated with legal authoritarianism. Crisis moments help reveal whether and how law works to constrain executive power. The international nature of these crises also helps foreground links between global and local politics, helping examine whether legal authoritarianism can be said to constitute a state type, as well as if and how the authoritarian instrumentalization of law differs domestically and internationally. The paper includes cases from Belarus (migration), the Democratic Republic of Congo (climate collapse), and Uganda (post-conflict reconstruction), and explores a diverse set of tactics including operationalizing vague statutory provisions that can be strategically reinterpreted; creating a bricolage of laws that mean otherwise liberal rules have an illiberal outcome; making law’s jurisdiction fluid so that different laws can be applied at different times; encouraging forbearance; creating new rules that take a liberal form but promote illiberal outcomes; or making the status of law uncertain by saying one thing and doing another.