I. SITUATING AUTHORITARIAN CONSTITUTIONALISM

Authoritarian Constitutionalism: Comparative Analysis and Critique is a collection of essays written by a diverse group of scholars and edited by two leading comparative constitutionalists, Helena Alviar García and Günter Frankenberg. It features two global phenomena which have recently drawn great attention among comparative constitutional law scholars: the arguably global tension of (liberal) constitutionalismFootnote 1 and the wide spread of authoritarianism.Footnote 2 In this regard, the book is timely and important. It contributes to the growing scholarship on authoritarian constitutional practices as a response to the global situation of constitutionalism and authoritarianism.Footnote 3

The authors assembled in this book ‘investigate and submit to critique the idea that authoritarian constitutionalism – its rhetoric and political techniques – is a phenomenon in its own right’ (p xi). Structurally, the book includes rich theoretical and empirical accounts. Frankenberg begins the book with a useful introduction to the theme, an identification of the features of authoritarian constitutionalism (opportunism, power as private property, participation as complicity, and the cult of immediacy), and a theorization about authoritarian constitutions as archetypes and texts (governance script, program, identity card, and showcase) (p 1–36). Alviar García then conceptualizes and analyzes neo-liberalism as a form of authoritarian constitutionalism: the inclusion of neo-liberal ideals (eg, deregulation and economic privatization) in the constitutions (p 37–56). The remaining chapters of the book explore authoritarian-constitutional manifestations in national and regional contexts: transformative constitutionalism in South Africa; network constitutionalism in Central Asia; the evolution of China's authoritarian constitutional system; incremental authoritarian practice in Japan; challenges to authoritarian constitutionalism in Latin America; iconographic practices of authoritarian constitutionalism in Venezuela; authoritarian temptations in France's Bonapartism and Hungary's Orbanism; the formalist approach in Arab constitutionalism; and finally authoritarianism in liberal democracies in North America and Europe.

In my view, the book's methodology and epistemology have four welcome features: the approach is non-Western, non-court-centered, contextualized functionalist, and pluralist. First, the book covers a wide range of jurisdictions in North America, Europe, Latin America, the Middle East, and Asia. The book, therefore, contributes to the continued jurisdictional expansion of comparative constitutional law beyond Western democracies or similar institutional settings. Second, the book discusses a range of constitutional issues: constitutional ideologies, constitution-making, constitutional amendments, and economic constitutional issues. In this aspect, the book contributes to the continued substantive expansion of comparative constitutional law beyond courts and judicial review. Third, the book considers authoritarian constitutionalism as a global phenomenon, but localizes constitutions within the social, political, and economic surroundings from which these constitutions emerge. In this regard, the book contributes to the methodological expansion of comparative constitutional law beyond functionalism and universalism. Finally, the book is open to epistemological pluralism. Scholars adopt different theoretical perspectives (eg, neoliberalism, formalism, materialism, network theory, and infrastructure power theory) to articulate different conceptual constructions of authoritarian constitutional practices.

I contend that a single concept of authoritarian constitutionalism may not aptly capture the complicated authoritarian-constitutional varieties found in practice. For example, various phenomena such as constitutionalist practice in China (ch 4), authoritarian practice in the United States (ch 8), and constitutionalizing authoritarianism in Egypt (ch 13) may be better captured by different concepts rather than a single conceptual foil – authoritarian constitutionalism. In the next part of this review, drawing on the rich theoretical and empirical contributions in the book, I demonstrate that there are four authoritarian-constitutional varieties: authoritarian constitutionalism, partially authoritarian constitutionalism, partially constitutionalist authoritarianism, and constitutional authoritarianism.

II. AUTHORITARIAN-CONSTITUTIONAL VARIETIES

This review inevitably confronts two major concepts: constitutionalism and authoritarianism. These concepts are approached at different levels: they can be considered institutional practices, ideologies, or forms of government. Scholars have also attributed different substantive features to constitutionalism (liberal features in the ‘proper sense’ (p 7–8) and non-liberal featuresFootnote 4) and authoritarianism (configurations of ideology and its propaganda (p 6); institutional lack of judicial equality, constitutional protection of individual rights, and representative republican government).Footnote 5

This review does not attempt to enter the controversial debates on these two concepts, but seeks to articulate regime-level conceptions to understand the authoritarian-constitutional variations. At the regime level, constitutionalism and authoritarianism are two competing forms of government. They are different ways to organize and use public power in a given polity. Following Graham Walker, I understand constitutionalism as a form of government committed to principles, rules, and institutions holding those in power ‘accountable to general public standards’.Footnote 6 The general public standards may be individual freedom in the liberal model of constitutionalism,Footnote 7 but can also be something else (eg, economic development, collective material good, civic virtue) in other models of constitutionalism: communitarian, universalist, progressive, or mixed.Footnote 8 In contrast to constitutionalism, authoritarianism is a form of government undermining principles, rules, and institutions holding persons in power accountable to general public standards.Footnote 9

I agree that we should not dichotomize constitutionalism and authoritarianism.Footnote 10 With that, this review identifies four authoritarian-constitutional varieties. The first is authoritarian constitutionalism, the phenomenon characterized by Mark Tushnet. Using Singapore as an extended case study, Tushnet generalizes features of authoritarian constitutionalism. Accordingly, the authoritarian nature of this hybrid model is characterized by the fact that the regime ‘is controlled by a dominant party, makes all relevant public policy decisions, and there is no basis in law for challenging whatever choices the regime makes’.Footnote 11 But the regime is constitutionalist in the sense that it is committed to open discussion and criticisms of its policies, reasonably free and fair elections, the dominant party's sensitivity and responsiveness to the public's views, and reasonable judicial independence.Footnote 12

García states that Tushnet's analysis ‘equates authoritarianism with overt limitations to the exercise of civil and political rights,’ and moves on to argue that ‘excluding certain economic policies and choices from the public deliberation is an authoritarian form of restricting freedom of expression and political participation’ (p 40–41).

My take is that the nature of authoritarian constitutionalism is defined by the equal hybridization of elements of constitutionalism and authoritarianism. The elements that make a regime constitutionalist, according to Tushnet, are the principles, institutions, and rules that make the power holders accountable to the public. What makes the regime authoritarian is that the legal basis for the public to challenge the accountability (not the mere legality or constitutionality) of the public policy decisions made by power holders is absent or extremely limited. The potential consequence of this is that some public policy decisions are made to benefit not the public, but the power holders.

Another variety is partially authoritarian constitutionalism, which refers to a government that is basically committed to, but partially departs from, principles, institutions, and rules holding the power holders accountable to general public standards. This regime is characterized by the hegemony of constitutionalist elements, with a partial inclination to authoritarian elements. Different from the fully authoritarian model, in this model elements of constitutionalism dominate the constitutional design and the politics of the whole polity. While elements of authoritarianism are emerging partially in some aspects of constitutional design and politics, they are not the well-established practices that equally compete with the constitutionalist elements. Several chapters in the book discussing authoritarian elements in liberal democracies (eg, the US and Japan) provide examples of this variation (chs 8, 12, 15).

In contrast to the preceding variety, partially constitutionalist authoritarianism refers to a government that basically undermines principles, institutions, and rules holding power holders accountable to general public standards, but also partially turns to these. This regime is characterized by the domination of authoritarian elements and the partial adoption of constitutionalist elements. Elements of authoritarianism remain hegemonic in constitutional design and politics, but elements of constitutionalism are emerging partially in some aspects of the polity, although these are not well-established practices that overwhelmingly inform the working of the entire polity. The chapter on China provides examples of this variation (ch 4).

The final variation is constitutional authoritarianism, defined as a government adhering to the formal constitutional text to undermine principles, institutions, and rules holding power holders accountable to general public standards. This model has two characteristics. First, the constitutional text itself contains principles, institutions, and rules that facilitate the legitimate use of authoritarian power. These include, for example, provisions that facilitate presidential term limit evasion.Footnote 13 Second, power holders are committed to constitutionality, which means that they use their power in adherence to the principles, institutions, and rules stipulated in a formal constitution. The chapter on Arab constitutions provides examples of this model (ch 13). It should be added that there may be a sham variation of constitutional authoritarianism (chs 1, 13),Footnote 14 which would have two features. First, an authoritarian regime has a formal constitution which includes some normative principles, institutions, and rules (eg social justice, and human rights) that demand the accountable use of public power. Second, such principles, institutions, and rules do not authoritatively inform constitutional politics.

The distinctions between the four variations discussed above are Weberian ideal types; they are conceptual only, utilized for the sake of theoretical clarity and subject to several qualifications from an empirical perspective. Actual regimes will seldom perfectly fit into any of these four conceptual models. Constitutionalism and authoritarianism are matters of degree. They may not be fully realized in any polity. In addition, from an empirical perspective, it may not be easy to gauge the exact extent to which a regime is predominantly constitutionalist or authoritarian, or partially constitutionalist or constitutional. Finally, there may be overlapping practices in reality. For example, an authoritarian regime can be partially constitutionalist and constitutional.Footnote 15

The four variations are mainly descriptive heuristics. One may also ask a set of explanatory questions. Why is a polity equally both constitutionalist and authoritarian? Why does a constitutionalist polity turn to some authoritarian practices? Why does an authoritarian regime turn to some constitutionalist values? Why is an authoritarian regime committed to a formal constitution or to constitutionality, or to both? This brief review does not attempt to provide full answers to these questions, but summarizes several theories on authoritarian constitutions that may be relevant to understanding the authoritarian-constitutional variations. One famous theory has been proposed by Tom Ginsburg and Alberto Simpser, who argue that authoritarian constitutions have four functions: ‘operating manuals’, ‘billboards’, ‘blueprints’, or ‘window dressing’.Footnote 16 Tushnet rejected such instrumentalist accounts of authoritarian constitutions, arguing that ‘rulers might want to make credible commitments but they cannot do so, precisely because they can alter the constitution whenever they want—and the target audiences know that the rulers can do so’.Footnote 17 Frankenberg theorizes that authoritarian constitutions speak to different internal and external audiences, and hence have different functions: instrumental and symbolic (p 8–9). The theoretical debates on the functions of authoritarian constitutions are relevant to understanding the authoritarian elements in the several models mentioned above. However, what accounts for the constitutionalist elements? Tushnet explains that ‘the desire for national glory or national economic development’Footnote 18 may produce the constitutionalist elements. The explanation of authoritarian-constitutional models may have to take into account both an instrumental rational calculus and non-instrumental concerns for general public standards.