by Mayur Suresh
The impetus for this project stems from a disquiet, felt by so many in different parts of the world, of the arrival of authoritarian strongmen who had been elected to power. As Kim Scheppele’s influential article tells us, “By now, we know the pattern” of a charismatic leader elected to power, on the back of a wave of popular disenchantment with the state. This leader promises to wipe away the roadblocks that he says have held the country back: established elites, opposition politicians, entrenched bureaucracies, and legal niceties. Once in power, these leaders seek to use constitutional techniques to cement their power and to sweep away all but the most symbolic of opposition to them.
What would happen if we decentred the constitution and legal processes at the top of the states, in our conceptions of authoritarianism? These strongmen do not just aim to remake the constitutional space at the top of states, but also come to power promising to remake what society looks like. From punitive border policing in the United States, to the banning of the ‘International LGBT movement’ in Russia, to the targeting of indigenous communities and their lands in Brazil, to the persecution of minorities and civil society groups in India, authoritarian leaders have used the law and non-legal violence to demarcate and demonise this purported enemy within. They come to power with the promise of remaking their societies. What are the ways – legal and non-legal – that these authoritarian rulers seek to reconstitute what society looks like?
To be sure, targeting different populations raises important constitutional questions in purported liberal democracies. But they also draw our attention to different orders of laws – from ‘extraordinary laws’ (such as anti-terror laws and citizenship-stripping laws), to ordinary criminal and civil procedures, to zoning regulations, to seemingly mundane rules of courtrooms and local bureaucracies.
This focus on the local life of law in contexts where leaders seek to remake society has several implications. The first is the blurring of the boundaries of what is legal. The targeting of different groups in different communities is often done by the police and bureaucracies, acting hand in hand with different people and organisations on the ground.
The second is, is that it forces us to ask when authoritarianism came about? To re-word Walter Benjamin’s famous aphorism about the tradition of the oppressed, marginalised communities have experienced law as a form of authoritarianism, regardless of who is at the top of the states. The fact is that the use of law to target certain communities coupled with other forms of violence, predates the election of the authoritarian leader.
The troubling implication of this maybe that the stark divisions – between liberal democracy and authoritarianism – may have been too neatly drawn. When viewed from the perspective of everyday life, is it possible to demarcate the moment when a polity based on democracy and the rule of law, slipped into authoritarian times? Is it possible to point to one law as ‘authoritarian’ and the other as ‘democratic’?