Contesting Rights Denial, Institutional Defects, and Systemic Autocratic Legalism: Legal Resistance in Guatemala and Nicaragua

A substantial body of research shows that abuses of the law facilitate autocratization. Less is known about law and resistance to such autocratization, specifically beyond the role of courts and judges. This paper applies an agency-centered focus and asks when and how civic and political actors, such as repressed NGOs, human rights defenders, or journalists, dismissed judges or legal scholars, canceled political parties, or political prisoners’ families, resort to the law to counter autocratic practices. Drawing on comparative politics, judicial politics and legal mobilization studies, the paper proposes “politics of legal resistance” as a theoretical framework. Legal resistance is initiated by institutional outsiders who consciously employ formal legal procedures to counter autocratization on behalf of state entities or agents. Such resistance develops in 3 different modes: (1) resistance against selective rights infringements, such as denial of due process or cancelations of oppositional formal entities, (2) resistance against autocratic rulings and institutional defects, such as repressive laws or reforms of electoral law and the constitution, and (3) resistance against the overall regime, including demands for democratic removal and denunciations of criminal responsibilities of autocratic state actors in specific crimes. These modes of resistance are considered to ground on combinations of manifold domestic and international legal procedures and thereby address substantive issues of political participation, civic space, and access to justice. The project selects Guatemala and Nicaragua as typical sites of legal resistance, that expose similar patterns in socio-historic matters and current autocratic legalism, similar patterns of legal resistance, but variation in specific actor constellations and regime sequences during which legal resistance is deployed as an answer to autocratization, between autocratic consolidation and democratic revival. The study relies on a mixed-methods approach that brings together original legal texts and expert interviews from field research. The data collection and analysis follow two key steps: First, mapping those legal procedures that have been applied by resisters to counter autocratic abuse, and second, differentiating the underlying mechanisms, actor intentions, and the interactions between modes of resistance towards an overall process of politics of legal resistance across sequences of regime change. As such, and using methods of protest data analysis, the coding applied facilitates to identify variation and patterns in core attributes of legal resistance such as the types of legal procedures at the national and international levels, the modes of resistance, and the autocratic abuses and regime sequences to which the legal resistance respond, the responsiveness of institutions addressed, and the actors' perceived effects.