This paper suggests that one response to growing scrutiny of authoritarian tactics is to turn to sub-constitutional public law, or private law. By using “ordinary” law in ways that seem consistent with formal and procedural aspects of rule of law, autocrats can nonetheless frustrate the rule of law and consolidate power, while also avoiding drawing unfavourable attention to that consolidation. I refer to this phenomenon as “abusive legalism.”
This paper makes three main contributions to the scholarship on authoritarianism. First, it focuses on the use of “ordinary,” sub-constitutional law as a means of maintaining autocratic power, an area which has been under-examined in existing work. Second, it makes the case for a normative critique of such tactics based on a relatively modest conception of the rule of law, rather than from the perspective of liberal democratic norms. Third, it offers a tentative framework for categorising and understanding abusive legalist tactics.