Document Type

Article

Publication Title

University of Pennsylvania Journal of Law & Public Affairs

Abstract

Democracies are declining worldwide. Lawmaking and judicial review can help to stabilize democracies and protect fundamental rights. But these safeguards can also be misused to facilitate democratic backsliding and empower “legalistic autocrats” who deploy law to circumvent constitutional restraints on their power. This Article compiles empirical data from more than 140 countries to provide a framework for understanding how autocrats repurpose national security law to consolidate power in weak democracies. The Article demonstrates that policymakers worldwide enact amorphous national security statutes. Meanwhile, courts cite deference to executive authority and political questions as they abdicate their responsibilities for judicial review of national security laws. Legalistic autocrats exploit this statutory vagueness and judicial deference to undertake actions counter to democratic principles. The convergence of autocratic politics, statutory vagueness, and judicial deference fosters the emergence of a dangerous liaison that can be described as dark law. In the shadow of consolidated state enforcement powers, dark law allows autocratic leaders—operating under the guise of defending national security—to circumvent limitations on their authority and selectively investigate, detain, prosecute, and imprison disfavored groups.

First Page

643

Last Page

686

Publication Date

4-2021

Creative Commons License

Creative Commons Attribution-NonCommercial 4.0 International License
This work is licensed under a Creative Commons Attribution-NonCommercial 4.0 International License

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