What shape do constitutions take in authoritarian regimes, when governmental power is not limited? Can even “sham” constitutions generate state legitimacy? If so, how? These related questions guide Ginsburg and Simpser's edited volume, Constitutions in Authoritarian Regimes. This book begins with a concise introduction in which the editors explain why constitutions matter and what they do for authoritarian rulers. Specifically, constitutions solve “problems of governing” (p. 3) by creating incentives for different political actors to do “what authoritarian rulers wish them to do” (p. 2). These documents can also help to set up governing institutions and build public trust. The political functions of authoritarian constitutions include coordinating competing oligarchs and subjects, establishing “focal points,” and even imprinting on rulers and citizens a set of common values, such as the boundaries of permissible and impermissible discourse (Ibid.).
The remaining ten chapters are divided into four parts that showcase either theoretical frameworks or empirical cases. Two chapters focus on authoritarian constitutionalism, three on constitutional design, two on the contents of authoritarian constitutions, and three on the consequences of authoritarian constitutions. Generally, the overarching themes relate to the pathologies of authoritarian rule, why authoritarian constitutions exist, and how they might serve or harm democratic transition.
Five of the chapters expose the democratic potential of authoritarian constitutions. Tushnet (Chapter 3) looks to Singapore to show how rules found in authoritarian constitutions commit even autocrats to particular courses of action, which may encourage stability and predictability. Using the Polish communist constitution of 1952, Przeworski (Chapter 2) shows how, even if autocrats are not good at following rules, constitutions set out structures for how a government operates and the relationship between its constituent parts. Similarly, Hale (Chapter 10) turns to Kyrgyzstan, Moldova, and Ukraine to argue that democratic transition may come about even in highly paternalistic regimes in which rules are not always followed. Drawing on dozens of presidential elections in authoritarian regimes between 1946 and 2008, Gandhi (Chapter 9) shows how constitutions may drive democratic transition by bringing about multiparty elections. Related quantitative research by Elkins, Ginsburg, and Melton (Chapter 7) suggests that authoritarian and democratic constitutions are converging in form, particularly through their provisions of rights and judicial independence, which also suggests new ways to understand democratic transition.
Authoritarian constitutions have insidious and darker sides, too. Law and Versteeg (Chapter 8) reveal that, with limited exceptions, authoritarian governments are likely to use constitutional rights provisions as “shams” or “window-dressing,” which creates a gap “between what a country promises … and how it … behaves” (p. 187). Drawing on the role of constitutions as “operating manuals,” Albertus's and Menaldo's quantitative analysis (Chapter 4) of the effect of constitutions on regime survival in Latin America between 1950 and 2002 reveals that constitutions actually “help[ed] dictators consolidate power, increase investment, and boost economic development – all while generating a steady flow of rents for themselves…without empowering challengers” (p. 53). In that way, governments can use constitutions to create “autocratic coalitions” that keep dictators in power (p. 79). Similarly, Negretto (Chapter 5) draws on Latin American dictatorships from 1900 to 2008 to argue that constitutions are critical for military rulers seeking major social transformation. And Stilt's analysis (Chapter 6) of Egypt's 1971 constitution and its 1980, 2005, and 2007 amendments illustrates how the governing document helped to cultivate images of Anwar Sadat and Hosni Mubarak as “just and pious” presidents who believed in the rule of law and the protection of private property—contrasting to Nasser's earlier “excesses” and helping to preempt opposition (p. 134).
By examining the diverse roles that constitutions play in authoritarian states across time and space, Constitutions in Authoritarian Regimes offers a helpful extension of recent work on the functions of courts and judges in non-democratic states (Reference CheesmanCheesman 2011; Reference Ginsburg and MoustafaGinsburg and Moustafa 2008; Reference HilbinkHilbink 2007; Reference MassoudMassoud 2013; Reference MoustafaMoustafa 2007; Reference RajahRajah 2012; Reference SternStern 2013). Some of the volume's findings confirm recent conclusions on the political economy of authoritarian rule (e.g., that states use constitutions, like courts, to promote foreign investment). Some of the volume's findings also deepen our understanding of the pathologies of authoritarian rule (e.g., that constitutions can help build ruling coalitions of power or modernize the images of dictators). Ultimately, the provisions of authoritarian constitutions are surprisingly similar to those in democratic states, as clauses in both kinds of constitutions take on one of the following four political roles: “operating manual,” “billboard,” “blueprint,” and “window-dressing” (p. 15).
The book does not attempt to answer all questions about the functions of constitutions in non-democratic states. First, the case studies focus largely on the domestic functions of constitutions, while recent research suggests that national constitutions may also play important regional or international roles (Reference CopeCope 2013). Second, constitutions are not the only place to look when trying to understand authoritarian legality. In this regard, the final chapter (Chapter 11), which is Xin He's examination of the Chinese Communist Party, suggests that searching for political openings in authoritarian states may necessitate studying political and legal discourse beyond constitutions, including party practices, documents, and speeches. Finally, while the book's introduction provides an excellent summary of the cases that follow, a conclusion to the book would have helped to illuminate those cases’ implications for the field of comparative constitutional law, including on the increasingly prominent role of religious law in authoritarian constitutional development.
Bucking trends in public law scholarship focused on the United States constitution, Constitutions in Authoritarian Regimes is required reading for those who care about law in non-democratic states. The volume's chapters draw on a variety of political contexts and epochs to advance sociolegal knowledge of the unexpected places and ways that constitutions matter—paving the path toward a new generation of scholarship on comparative constitutions.
