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Excerpted From: Michael McCann and Filiz Kahraman, On the Interdependence of Liberal and Illiberal/authoritarian Legal Forms in Racial Capitalist Regimes ... the Case of the United States, 17 Annual Review of Law and Social Science 483 (2021) (3 Footnotes/Literature List) (Full Document)

Scholars have long distinguished between liberal and illiberal, or authoritarian, legal orders. But the basic elements of the distinction are often vague. Democratic and authoritarian political systems traditionally have been differentiated by the modes of transition between ruling leadership groups. Authoritarian polities tend to entrench ruling elites or parties, insulating them against meaningful or fair institutional challenge and competition for replacement. Many authoritarian regimes do feature elections, but the systems are rigged to prevent de facto competition for rule, popular accountability, and regime change. Authoritarian legal orders may or may not feature constitutions, but the legal organization of government ensures more centralized, unitary control by officials; recognizes only limited rights of challengers in society; and relies heavily on surveillance-intensive, often violent modes of social control. The interrelationships between authoritarian governance and authoritarian legal orders are complex and variable but substantial. Together, they typically facilitate practices of state and social elites that undermine both political accountability and respect for human rights (Glasius 2018).

Liberal democratic political orders, by contrast, tend to be characterized by modes of peaceful, orderly transition among leaders, usually in the form of relatively open, fair, and binding elections (Schumpeter 1943). Relatedly, liberal legal forms typically feature constitutional checks and balances among separate governmental branches with overlapping authority, as well as protections for basic rights of property ownership, free speech and association, religious practice, and due process and equal treatment for individuals (Dahl 1971, Glasius 2018). It follows that liberal legal orders not only confine the exercise of coercion by formal rules (Meierhenrich 2018, p. 231) but aim to exercise an “economy of violence,” which is to say, the least coercion that is deemed necessary to protect basic security of individuals and public order. While all legal orders perform a mix of regulatory and adjudicative functions, it is common to distinguish between liberal rule of law, with the United States often cited as the paradigmatic case, and authoritarian or illiberal rule by law (Chua 2014, 2019; Ginsburg & Moustafa 2008).

For the purposes of this review, we follow Glasius (2018) in emphasizing that the key feature of authoritarian legal order is its limited accountability to the subjects over which law rules. Illiberal law, by contrast, is characterized primarily by the denial of core rights status and rights protections to large swathes of legal subjects. Again, authoritarian and illiberal elements of legal rule are often fused, but they need not be.

The simple binary distinction between liberal and illiberal or authoritarian law has been complicated by much recent political experience and research, however. Perhaps most striking have been the many studies of authoritarian political and legal orders that have incorporated various elements of liberal legality into their inherited systems, thus producing hybrid legal orders, especially after World War II. Much of this literature shows that authoritarian regimes sometimes strengthen courts and judicial processes, grant some citizen rights, or pass liberal laws in certain issue areas to attract foreign capital (Moustafa 2007), appease political opponents, mollify human rights claimants, and discourage rebellious uprisings (Gallagher 2017, Rajah 2012, Whiting 2017). In short, liberal rights-based reforms serve to shore up ruling elite power in the authoritarian state, often while providing few resources for constraining state power or protecting citizen rights (Massoud 2013).

LEGAL PLURALISM, THE DUAL STATE, AND RACIAL CAPITALISM

These developments of hybrid legal orders represent variants on the broader category of what scholars characterize as legal pluralism. Indeed, legal pluralism, whereby “two or more legal systems coexist in the same social field,” is a dominant feature of most legal orders worldwide (Merry 1988, p. 870; Swenson 2018; von Benda-Beckmann & Turner 2018). The most widely recognized form of legal pluralism resulted from the politics of colonial administrative rule by which European states expropriated resources and labor in the Global South. Along with imposing European secular law, colonial administrations typically created and promoted customary personal law through selective racialized reconstruction of indigenous traditions and dispute resolution systems to solidify the commodification of land and better control indigenous populations (Dudas 2001, 2004; Merry 1991; Snyder 1981). Swenson (2018, p. 441) explains that “legal pluralism became a defining feature of colonial administrations that sought to harness local dispute resolution mechanisms to help legitimize and institutionalize their rule.”

Our primary interest in this article, however, is the very different version of legal hybridity identified with Fraenkel's (1941) classic conception of the dual state in Nazi Germany. Fraenkel distinguished between a normative legal state that protected property rights and contractual exchanges among the dominant racial group of citizens in the capitalist marketplace and a prerogative state that governed in largely arbitrary, violent ways over “enemies of the state,” those racialized groups who were the stigmatized “civil dead” and denied rights protections. In this way, German legal rule could be said to be at once liberal, for some, and authoritarian and illiberal, for others. Meierhenrich (2018) deserves credit for recently calling attention to Fraenkel's work and, in a separate book-length study, brilliantly applying the concept to South Africa (Meierhenrich 2008), and more generally beyond. Others have picked up and applied the idea as legal hybridity elsewhere, to Singapore (Jayasuriya 2001, Tushnet 2015), Chile (Hilbink 2007), Venezuela (Urribarri 2011), Egypt (Moustafa 2008), and many other polities, although only Hendley (2017) explicitly employs the dual (but nonracialized) state concept.

These studies illustrate that the balance of legal orders in hybrid or dual regimes is highly volatile. Meierhenrich (2008) demonstrates that the liberal elements of South African law provided leverage to challenge and reform the authoritarian legal order sustaining racialized apartheid repression of the Black population. But other hybrid postcolonial regimes that liberalized after WWII often have been overtaken by more illiberal, authoritarian legal forces at various times, as recently in Brazil, Hungary, and Poland. In short, the drift in the balance of liberal and authoritarian or illiberal legal practices in hybrid or dual legal orders over time can go both ways.

We underline that, unlike postcolonial hybrids of modern state and traditional law, the dual state model emphasizes relatively separate but interdependent, mutually constitutive legal orders that are the concurrent products entirely of modern nation state development. Our interest in this article concerns dual legal systems that emerged historically and persist in the present to govern the classic racial capitalist regime of the United States (Melamed 2011, 2015). This framework underlines that official state law developed to structure the terms of property exchange, commercial trade, and capital accumulation beginning in the seventeenth century. At the same time, capitalism historically was built on the inheritance of racial, gender, and religious differentiation and devaluation (Dawson & Francis 2016, Goldberg 2002, Mills 1997, Robinson 2000). Property ownership and citizen status were restricted almost exclusively to men of white, Protestant, European lineage, whereas broad categories of devalued, nonwhite persons, forced into expropriated and exploited labor required to generate surplus value, have been governed by separate forms of illiberal, authoritarian, or repressive law (McCann & Lovell 2020). Racial subordination contributed a structural dimension of capitalist development, but it also became a relatively autonomous force in social relations reflected and enforced by law.

The traditional view of the United States, at least in mainstream political rhetoric, is that populations long subjected to illiberal, authoritarian rule by dominant property-owning groups reflected the incomplete implementation of liberal legalism, or the slow, uneven “march of liberty” (Ginsburg et al. 2018, Hartz 1955, Urofsky & Finkelman 2011). Some people were just forgotten or left outside of law, or “without the law” (Weiner 2006). By contrast, our review of copious historical scholarship aims to demonstrate that large populations historically have been denied basic rights and liberal legal treatment as full citizens not because of oversight or incomplete inclusion. Rather, they were, and remain, willfully, systematically subjected to repressive, violent legal rule that denied basic rights, minimized legal accountability of rulers, and enforced hierarchy (Mills 2008). These latter legal forms often are said to constitute the internal colony of racial capitalist apartheid in America. In short, separate, illiberal and authoritarian legal orders have coexisted with and sustained interdependent liberal legal practices among dominant groups from the start of the racial capitalist state-building project through the present. Just as capitalism and racial hierarchy were mutually constitutive, so have been liberal, illiberal, and authoritarian forms of law (Dawson & Francis 2016, McCann & Lovell 2020). We show these larger patterns in dual or hybrid legal systems through a brief tour of US historical literature.

[. . .]

We could add much more, but the brief review above sketches how the intricate networks of modern American law continue to deny liberal rights status to many people, in many institutional and social sites. Whereas law generally continues to protect the wealthy and white property owners and their contractual relations, law pervasively disciplines large swathes of the semi-free working class and punishes racial minorities, immigrants, and the disposable poor (Wacquant 2009). In short, much law in the United States is both authoritarian, in that it is unaccountable to many of its legal subjects, and illiberal, in that it denies basic rights protections, propertied independence, and justice. As Merry (2016, p. 470) recognized, “The rule of law can mean simply a set of procedures rather than a mechanism to produce substantive justice. Indeed, in the context of neoliberalism, this is increasingly what the rule of law means.” And all this developed well before President Trump tapped into resurgent illiberal American legal traditions of white patriarchal supremacy and heavy-handed prewar authoritarian governance, along with some practices taken from the playbook of contemporary autocrats whom Trump explicitly admired (Mednicoff 2018, Solnit 2019). But the Trump phenomenon demonstrates the significance of recognizing authoritarian and illiberal legal traditions, as they can be tapped and exploited further at any time by rogue populist leaders and their anxious party followers.

The analytical implication of our argument returns us to issues of comparative legal scholarship, though. We applaud the growing inclination of sociolegal scholars to think comparatively and historically about law and legal orders. But we insist on recognizing the misleading distortions of relying on simple binaries among entire unitary systems and among highly developed states in the Global North, which are in fact as plural, complex, variegated, and hierarchical as elsewhere in the world. Comparatively, claims that liberal legal orders offer greater opportunities for contestation over rights and justice are not wholly wrong, but they tend to be highly simplistic and cloak the illiberal and authoritarian elements embedded in ostensibly liberal orders. Far more nuanced historical, institutional, and group-based comparative specification is necessary. For example, although Chua (2014) distinguishes generally between authoritarian and liberal state contexts, her classic study contrasts more specifically the challenges faced by gay rights activists lacking legal protections for speech, assembly, and association in Singapore to comparable activists who benefit from greater protections in the United States, although she notes that those latter rights protections have varied greatly over time in America. Within the United States, moreover, it is not enough just to identify the gaps between liberal legal ideals and practices, the historically incomplete fulfillment or recent demise of liberalism, as many sociolegal scholars and law professors routinely do (Ginsburg et al. 2018). The contemporary US legal system is not the same one that Hitler admired nearly a century ago, but it is not nearly as different as American scholars often posit. In both cases, we as scholars must be clear-eyed about the institutionally and ideologically embedded illiberal, authoritarian traditions that continue to be mobilized to compete with and constrain liberalism, not to mention radical democratic possibilities beyond liberalism (McCann & Lovell 2020). Again, contrary to familiar attributions of liberalism, American law has been and remains a dynamic mosaic of both liberal and illiberal, authoritarian, hierarchical elements.

Studies of the United States in comparative perspective have traditionally been rare, and those that exist have generally compared or identified the United States with other liberal democracies. An important implication of acknowledging illiberal and authoritarian traditions within the US legal system is that there is much to be learned from examining these US dynamics in comparison not only to other ostensibly liberal regimes but also to regimes deemed transitioning, hybrid, or fully authoritarian. Much of the scholarship on state repression, surveillance, and systematic disenfranchisement--as well as mobilization and resistance--in hybrid or authoritarian regimes can enhance our understanding of similar dynamics in the United States (Davenport 2012). We therefore urge scholars of the United States to integrate insights from the growing scholarship on state repression and activist mobilization strategies in authoritarian and hybrid regimes (Chua 2014, Gallagher 2017, Kahraman 2017, Moustafa 2008).

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