Reviewed by Tracy Lightcap, Department of Political Science, LaGrange College. E-mail: tlightcap [at] lagrange.edu
This book is a discussion of a real problem of comparative analysis: what is the actual role of institutional restraints on authoritarian governments? This is a relatively recent concern; for much of the 20th century, the answer was easy: not much. Constitutions in regimes run by fascist and communist parties were considered shams and most analysis of them was an ironic contrast between the institutional descriptions in constitutions and their functional operation. Even when the constitutions involved proved useful tools for overthrowing authoritarian regimes (as with the German Democratic Republic), this largely dismissive stance continued.
Since the general collapse of fascism and communism, however, a very different landscape for authoritarianism has emerged, accompanied by a revival of interest in how constitutions work in authoritarian regimes. Here the emphasis, as Ginsburg and Simpser say in their opening essay for this book, is more on why authoritarian governments would generate constitutions in the first place. Ginsburg and Simpser sensibly decided to begin to answer this question by laying out the functions of constitutions:
- They provide operating manuals by setting out rules for decision-making,
- They are billboards advertising the commitments of governments and what the intentions of rulers are,
- They are blueprints showing the direction for policy by the regime in the future,
- They are window dressing that provide normative cover for existing political practices.
The theoretical critiques of the concept of constitutional authoritarianism lead off the book. Adam Prezworski’s essay on Poland asks what is probably the most enigmatic question in the book: given the example of the constitutions in force in the other communist states, why did the Polish United Workers Party (PUWP) actively decide to not enshrine the “leading role” of the party in the 1952 new constitution? Prezworski admits that he cannot answer this question, but his [*403] attempts to do so are interesting. He concludes that so long as the Red Army guaranteed the party’s rule, the formal rules of the new constitution could be readily ignored and usually were. But subsequent events – particular the strike in Gdansk, the formation of Solidarity, and the economic downturn of the early 80s – led opponents to attempt to turn the 1952 constitution into a true operating manual and threatened communist rule in the country. Unexpectedly, an authoritarian regime found itself in a constitutional crisis. Not what one would expect if window dressing was the only function of authoritarian constitutions.
Mark Tushnet’s attempt to correctly conceptualize “authoritarian constitutionalism” is perhaps the most ambitious essay in the book. He combines both normative and empirical perspectives on the appearance of so-called “hybrid” regimes that combine stable autocratic ruling elites with the use of elections. As Tushnet says, the problem is how to conceptualize regimes where elections are held, opponents sometimes elected to office, the dominant party pays some attention to public opinion, and dissent is allowed, but there is little or no danger that the regime will be replaced, where there are no effective restraints on policy decisions, and the level of dissent is controlled selectively. The difficulty in formulating a conceptual framework for such regimes is that there is often little to choose between such constitutions and what is found in democratic governments. Tushnet ends by calling for more research into the forms of constitutionalism to resolve what he shows are still fuzzy conceptual boundaries.
The essays in the book address questions of the design of authoritarian constitutions, their content, and their consequences, using quantitative analyses paired with institutional studies. Michael Albertus and Victor Menaldo examine the “political economy” of authoritarian constitutions in Latin America from 1950 to 2002. They postulate that, by regularizing the privileges and protections for elite factions supporting authoritarian regimes, authoritarian constitutions will extend the life of autocratic coalitions, protect private property rights (for elites, at least) more extensively, increase private investment, and lead to higher levels of economic growth. As with most quantitative studies in the book, they use nested regression models that accommodate possible confounders to test these propositions using a series of sophisticated linear models. Their strongest finding is that, as predicted, formulating and maintaining a constitution does appear to forestall the replacement of autocratic coalitions by democratic transitions. They also find evidence supporting hypotheses that autocratic constitutions enhance property rights protection, economic growth and, with somewhat stronger support, levels of private investment. Overall, this is a useful and convincing study, though one wonders what a more inclusive dataset would show.
Gabriel Negretto’s study of the role of Latin American militaries in making authoritarian constitutions from 1900 to 1990 follows. This is one of the best essays in the book: I found the sophisticated use of both quantitative and qualitative methods in this essay particularly persuasive. Negretto postulates that military regimes have an [*404] overwhelming problem: they are, almost by definition, temporary in nature. But what if the aims of the intervention require both time to accomplish and basic changes to civilian politics in the future? One way to do this would be to promulgate new constitutions and develop ties to new or existing political parties to ease the transition to civilian rule while keeping the new restrictions that the military demands. Negretto combines useful descriptive information, large-N linear models, and case studies to present a convincing case for his hypotheses. As he expected, his models show strong evidence that the length of military rule and the presence of party support for it are strong predictors of the adoption and continuation of constitutions by military regimes, while the presence of well-established political parties in democratic periods is not. As should more often be the case, Negretto follows his quantitative evidence with short case studies of Argentina, Ecuador, and Brazil that ably illustrate how the actual historical sequences work out.
These essays are paired with Kristen Stilt’s able case study of the 1971 Egyptian constitutions and the various twists and turns the country went through as successive military regimes attempted to adapt it to a rapidly changing environment. Stilt’s findings closely track those of the other studies in this section. As she points out, the aims of the Sadat regime – overthrowing the political framework inherited from Nasser, re-calculating the economic tilt of government policy – required much more than a temporary solution. Sadat required a constitution that would accomplish these aims while at the same time solidifying and legitimating his rule, and he was able to get it, albeit with the need for extensive changes in 1980. The subsequent writhing of the constitution under Mubarak as he tried to adapt its creaking framework to an increasingly hostile domestic and international political environment illustrates both that, as Negretto points out, military regimes need constitutions and active political support to survive and provides strong support for Albertus and Menaldo’s finding that writing a constitution can extend the life of an autocratic coalition. No point estimates, however, can substitute for an in-depth analysis like Stilt’s.
The content of authoritarian constitutions is analyzed in two quantitative essays. The first by Zachery Elkins, Tom Ginsburg, and James Melton is an examination of constitutions from 1800 to 2008. Their study looks at whether the content of authoritarian constitutions is different from democratic ones on several dimensions: executive power, judicial independence, constitutional rights, and the scope and detail of their provisions. Surprisingly, they find no difference between authoritarian and democratic constitutions on the scope of executive power. Other findings are more as expected, however. Authoritarian constitutions are liable to lead to less judicial independence, less emphasis on what the authors call “rare rights” (i.e. those present in less than 50% of the constitutions in force at the time), and less specificity in the scope and detail of their provisions. But perhaps the most interesting of all their findings is that the differences they found, though often significant in statistical terms, are slight in substantive ones. As they point out, it may be that institutional isomorphism has forced a convergence of [*405] constitutional provisions, particularly in recent times.
In their chapter on constitutional variation David Law and Mila Versteeg present a useful typology of constitutional types. By looking at intersections of strong or weak de jure protections for rights and strong or weak de facto rights protection, they are able to divide constitutions into four types: sham (high de jure, low de facto), weak (Low de jure, low de facto), strong (high de jure, high de facto), and modest (low de jure, high de facto). They then provide a series of comparisons of constitutional choices from 1980 to 2008 between monarchical, democratic, and autocratic regimes. The changes are informative: autocratic and democratic regimes have changed towards either strong (democracies) or sham (autocracies) constitutions over the period studied. They analyze these descriptive trends by a series of regression models of dictatorship and constitution type, again suitably controlled, that confirm their results. I look forward to more research using their typology of constitutions; there are many research questions it might help answer.
Finally the essays turn to the consequences of authoritarian constitutions. Jennifer Ghandi examines the role of presidential power in authoritarian elections. Here Ghandi is considering multi-candidate elections held by governments that came to power by non-democratic means from 1946 to 2008. She hypothesizes that one of the reasons that authoritarian incumbents can continue in office despite multi-party elections is that opposition factions cannot trust one another to stand by their pre-election promises without a substantive change in constitutional rules. Ghandi looks at three aspects of de jure presidential power: cabinet appointment, cabinet dismissal, and use of emergency powers. Using both difference of means tests and nested regression models, she finds that the power to dismiss cabinets and use emergency powers affect the possibility of opposition coalitions forming. Obviously, the rules of the game matter here.
The two final essays are institutional analyses. Unlike the other studies in the book, Henry Hale is not looking at authoritarian constitutions per se, but rather whether the way power is separated in constitutions formulated during democratic transitions can effect the possible return of authoritarianism. He presents case studies of Ukraine, Kyrgyzstan, and Moldova using process tracing techniques to look at the question. The initial constitutional decisions of the countries involved provide Hale with a close analogy to a natural experiment: Ukraine decided on a mixed-presidential system, much like the one in France, Kyrgyzstan on a strong presidential system, and Moldova on a strong parliamentary system. In each case, the constitutional choices were agreed to by a coalition of factions that ran the transitions in each country. Hale shows that it was the presidential system in Kyrgyzstan and the prime ministerial system in Moldova that led to the re-instatement of authoritarian rule in both while the divided system in Ukraine enabled a chaotic, but democratic, system to arise there.
The final essay in the book is Xin He’s treatment of the constitution in China. He’s work is the only description of a [*406] window dressing constitution in the book. His astute analysis of how the Chinese Communist Party (CCP) has worked around its constitution is both illuminating and depressing. The CCP has wired the country so effectively that the constitution is putty in the party’s hands. But here we need to recall Prezworski’s analysis of the PUWP. As He points out, the CCP has put itself in a situation where the slightest slip-up could lead to the constitution being seen as a true operating manual instead of the sham it is today. Indeed, He gives us a variety of suggestions concerning how this could come about. On this only time will tell.
What can we make of such a wide ranging collection of research on such broad topic, particularly since the topic itself is so new? I can only suggest further work. For instance, some of the research findings appear contradictory. Elkins, Ginsburg, and Melton find little to choose in substantive terms between autocratic and democratic constitutions while the findings of Law and Versteeg suggest that there are substantial differences between them, especially in recent years. In short, I do not think that the quantitative results presented in the book have done enough to undermine the existing narrative of window dressing constitutions in authoritarian regimes. This is too bad since I am also convinced, particularly by the institutional studies in the book, that the quantitative work presented is on the right track. This is a common complaint about new research; it usually raises more questions than it answers. But the unanswered questions are still there. There is clear evidence that authoritarian constitutions influence the internal politics of the countries involved, but the overall picture is not complete.
This brings me to a final problem. When I read Tushnet’s description of authoritarian constitutionalism, I was reminded of Mayor Daley’s Chicago. Was Daley an authoritarian ruler? Not really. He was a machine politician who exploited the advantages of incumbency to the hilt in the tradition of Thomas Jefferson (they called him “Marse Tom” for a reason) and many others in American political history. Tushnet is right; there’s further work to do on many aspects of this. There is a difference – I should know; I’m from Georgia – between machine politics and authoritarian regimes. The work in this volume does not get us past this conundrum, despite the efforts of the authors involved.
At this point, I should come to bottom line about this book. This is new research and I am convinced that it is headed in the right direction. I could see this book as a needed palliative for courses on comparative constitutions or constitutional law to get a serious analysis of authoritarian constitutions on the table. The book puts paid to the idea that window dressing is the only function of authoritarian constitutions. As the studies in this book make clear, that is NOT the case. I think that is both important and useful. More work in the future will be inspired by the work in this book and I anticipate that more scholars will expand this new field. I doubt that the editors were hoping for more.
Copyright 2014 by the Author, Tracy Lightcap.