Authoritarian Constitutionalism

Abstract

Legal scholars and political theorists interested in constitutionalism as a normative concept tend to dichotomize the subject. There is liberal constitutionalism of the sort familiar in Somewhat weaker candidates, because their authoritarianism was stronger, are Taiwan between roughly 1955 and the late 1980s and South Korea for most of the period between 1948 and 1987. Consider this description of Mexico, written in 1991: "Mexico has had a pragmatic and moderate authoritarian regime …; an inclusionary system, given to co-optation and incorporation rather than exclusion or annihilation; an institutional system, not a personalistic instrument; and a civilian leadership, not a military government." Smith, "Mexico Since 1946," in 7 CAMBRIDGE HISTORY OF LATIN AMERICA 83, 93 (1990). The difficulty with using the latter two nations as examples of authoritarian constitutionalism is that the termination of authoritarian rule casts a shadow backwards over our understanding of its operation during its long period of stability. See also text accompanying notes ---below (discussing the literature on the role of constitutional courts when elites believe that the termination of authoritarian rule is likely to occur relatively soon). Note, though, that the Mexican system lasted for more than a half century, as has the Singaporean one. That seems to me long enough to place the systems in a category worth studying. The French Fourth Republic lasted just over a dozen years. (That Singapore may be sui generis is suggested by the fact that Lee Kuan Yew remains the dominant figure in Singapore politics; the regime has not yet had to face a serious question of leadership succession, although the PAP's leaders have been grappling with the issue of second-and third-generation leadership for decades. For a summary of efforts to develop a successor generation of leaders, see MICHAEL D. BARR & ZLATKO SKRBIS. CONSTRUCTIING SINGAPORE: ELITISM, ETHNICITY AND THE NATION-BUILDING PROJECT 66-67 (2008).) 4 the modern West, with core commitments to human rights and self-governance implemented by means of varying institutional devices, and there is authoritarianism, rejecting human rights entirely and governed by unconstrained power-holders. Charles McIlwain's often-quoted words exemplify the dichotomization: "[C]onstitutionalism has one essential quality; it is a legal limitation on government; it is the antithesis of arbitrary rule; its opposite is despotic government, the government of will instead of law," and "[a]ll constitutional government is by definition limited government." 8 This Article explores the possibility, perhaps implicit in a restrained understanding of McIlwain's formulation, of forms of constitutionalism other than liberal constitutionalism. 9 The Article focuses on what I call authoritarian constitutionalism. 10 That discussion is connected to 8 CHARLES MCILWAIN, CONSTITUTIONALISM: ANCIENT AND MODERN 20, 21 (1947). 9 Cf. James D. Fearon & David D. Laitin, Explaining Interethnic Cooperation, 90 AM. POL. SCI. REV. 715, 717 (1...

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