PAL Researcher Reviews the Literature on Law and Illiberalism

This article has been published in advance by the Annual Review of Law and Social Science

Fabio de Sa e Silva
October 2022

In democratic backsliding, threats to democracy no longer come from abrupt, radical ruptures promoted by those who are close to, but outside of, state power. They come from those who win elections and, while in office, systematically undermine accountability institutions and minority rights. Zakaria used the term illiberal democracies to describe these regimes where popularly elected governments are divorced from political freedoms and accountability. Law is not absent from these stories. Rising autocrats seek to make their moves legal and use law—as a weapon or as a shield—in attempts to amass power and suppress opposition. Authors coined the term autocratic legalism to describe these power-grabbing tactics that operate through law. Others use different concepts, such as constitutional retrogression or abusive constitutionalism. I review this growing body of literature and outline a research agenda on the encounters between law and illiberalism.

Expected final online publication date for the Annual Review of Law and Social Science, Volume 18 is October 2022. Please see http://www.annualreviews.org/page/journal/pubdates for revised estimates.