8 - Cheating

Summary

In the act of cheating, the cheater (mis)represents himself as conforming with the norms. What prevents constitutional cheating (and resulting arbitrariness) from prevailing in a constitutional democracy is moral and cultural restraint among constitutional actors, resulting from the restrictions and conventions that decent politicians, administrators, and lawyers accept. Moreover, there are institutional mechanisms of constitutional and subconstitutional supervision that patrol the abuse and other misapplications of the law. These are the first to disappear in illiberal democracies. Here the legislative branch and the judiciary engage in professionally indefensible gimmicks. The unfaithfulness to the principles of constitutionalism and the narrowness in interpretation disclose the importance of cheating with law as a central legal and social technique of illiberal democracy. The various legislative and interpretative techniques of legal cheating (circumvention, circularity, denial of facts, denial of jurisdiction, etc.) become systematic in illiberal regimes, undermining public morality.