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
Recommended Citation
Stephen Cody, Dark Law: Legalistic Autocrats, Judicial Deference, and the Global Transformation of National Security, 6 U. Pa. J. L. & Pub. Affairs (2021).
Creative Commons License
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