The Dark Side of Legalism: Abuse of the Law and Democratic Erosion in Argentina,Ecuador,and Venezuela

Abstract

Why do some elected leaders use legalistic strategies to undermine democracy from within? And under what conditions do they succeed in the use of these strategies? In this article, we argue that the abuse of law is at the center of the toolkit of emerging autocrats. Executives use an ample menu of legal tools and mechanisms (laws, constitutional amendments, executive decrees, administrative resolutions, and regulations by federal agencies) to gradually dismantle each of the components of liberal democracy. We show how the co-optation of the judiciary by the executive helps create an appearance of institutional normalcy that enhances regime legitimacy. In an era of democratic backsliding, executives capture or coerce judiciaries to neutralize opposition threats, carry out their policy agenda, secure and distribute benefits among allies, and dismantle various components that make up liberal democracies. To understand how executives have different levels of success in using multiple legal tools and mechanisms to undermine democracy, we compare three Latin American countries with disparate regime trajectories: Argentina, Ecuador, and Venezuela. Our paper situates judicial actors at the center of the legal toolkit of emerging autocrats by studying how (and in what ways) courts become illiberal tools for legal reform and implementation to dismantle liberal democracy gradually. We show how, in these cases, “legal narratives” are used to legitimize the slow undermining of democratic rule.