Text von Lea Ypi
Authoritarianism is on the rise almost everywhere. While progressives are divided and on the defensive, the new right has understood the relation between the law and politics. Amidst the crisis of liberal democracy, authoritarian figures are seeking to reinterpret the law to their advantage. To stem the authoritarian tide, progressives must connect the immaterial concept of the law to politics instead of merely reflexively defending abstract legal concepts.
Contemporary liberal democracy has been recently increasingly challenged by the rise of authoritarian figures in politics. Promising swift, decisive action in response to the many emergencies we face, this concentration of power in the hands of single political actors is fundamentally at odds with the basic principle of legitimation in democratic societies. Unlike pre-modern concepts of legitimacy which grounded political authority on religion, the divine right of kings or the force of convention, the modern idea of democracy is often seen as a collective answer to the problem of anarchy between individuals, an effort to ensure that through a system of rights and obligations the freedom of each is guaranteed in respect of the freedom of all. This distinctively modern way of reflecting on the relation between individual and collective freedom explains why authoritarianism undermines democracy, and why the challenges it poses raise distinctive questions concerning the relation between law and politics in contemporary societies.
In Franz Kafka’s short story ”Before the Law“, a man turns up at the gates of the law. He thinks that since the law is for everyone, he has a right to gain entrance, but meets a powerful gatekeeper who tells the man he must fight him in order to get in. The man prefers not to challenge the gatekeeper. He sits patiently outside the law, spending everything he has to win him over, making polite requests to be accepted but always failing to obtain permission.
Kafka’s story is a good metaphor for thinking about the relation between law and politics. The gates to the law are in theory always open. To be inside the law means to be recognised, represented and protected by the authorities that support and enforce it. Inclusion in the law, however, also requires fighting its gatekeepers, and doing so in the awareness that there are no guarantees of success. Law, in other words, depends on politics.
The right’s assault on the rule of law
Historically, the progressive position before the law has taken many forms, from fighting its guardians to persuading them to compromise, to identifying with them. But regardless of the differences of strategy, there was a shared awareness among progressive political movements that gaining access to rights required an active struggle to challenge the status quo with a positive vision for social change. Democracy was not allegiance to a body of settled norms; it was the name for a process. With the help of that process, previously excluded groups of people – workers, women, people of colour – became subjects with rights. There was little inherently desirable or despicable about the rule of law, it was all down to who the laws represented, and how.
The struggle is not over, but progressives are in retreat. In the ongoing crisis of liberal democracy, only the new right seems to understand the relation between law and politics, often interpreting it in sinister ways. The right, ever more coherent in its ideology and disciplined in its organisation, is increasingly willing to challenge the guardians of the law through a relentless assault on the institutions on which the law relies to be enforced: the courts, the civil service, the press, established norms of international cooperation. In 2020, several judges of the Hungarian Constitutional Court resigned citing executive interference in the court’s operations and the erosion of judicial independence through the appointment of loyalist officials. In January 2021, Donald Trump’s efforts to challenge the results of the 2020 election by pressuring Georgia Secretary of State Brad Raffensperger led to direct pressure to ”find 11,780 votes“ and overturn the election outcome. Consider also the tirades of then Attorney General Suella Braverman against the Human Rights Act, and her remarks about taking power back from the courts in the United Kingdom during her term of appointment. Or the recent steps taken by Italian Prime Minister Giorgia Meloni to initiate constitutional reform that would combine elements from a presidential and parliamentary system to consolidate executive overreach.
All around the world, from Italy to Hungary, from India to the US, the right’s assault on the rule of law, the related undermining of civil servants, judges and civil society activists, its censoring of the press, are all part of a campaign of a progressive assertion of the executive over all other branches of the state. Its ultimate aim is to turn the law into an instrument of rightwing politics, to disempower those who would still see it as a vehicle of social emancipation. What seemed a few years ago like isolated cases of attack on minority rights, as with Viktor Orban’s campaign to restrict NGOs’ ability to assist with asylum claims or the ongoing segregation of Roma people, are now going mainstream. Think about the exponential rise in the assassinations of black people, indigenous leaders and environmental activists in the months following the election of Jair Bolsonaro as Brazil’s president. Or the brutal violence to which members of Muslim communities have been subjected in India, following Modi’s divisive amendments of citizenship laws.
Progressive failings
The novelty of the reorganised right’s assault on legality is that it has a semblance of legitimacy: far right parties are becoming mainstream helped by the votes of the people, and claiming to speak with their voice. As capitalism and democracy continue to come apart, the radical right continues to set the agenda, making its traditional ideology once more attractive to the very subjects it leaves behind, turning ethno-nationalism into the seemingly obvious response to the miscarriages of globalisation.
In contrast, progressives are failing. They are failing because the left in most advanced liberal democracies has either forgotten or failed to communicate the lessons that the new right has learned from it: it has abandoned the critique of the current system, the language of dispossession, the need for political education to advance democratic ideals. It has also abandoned all efforts at international coordination with regard to strategy, means and goals. It has turned liberal parliamentary democracy into an end in itself whilst losing all nuance of what the state is for, and why we need the law.
This is not surprising. Many progressive movements are plural and divided, not just on who to fight, but also over what, and how. In the face of these divisions, it is natural to find common ground in the protection from assault of existing laws and institutions. It is even more understandable when one has helped to shape these institutions, attempting to make them more inclusive over the decades. It is easier to celebrate individual paladins of the law than to create the collective political force required to challenge the crises we face.
An appeal for more politics
The right has managed to both reappropriate the left’s tradition, and renew itself by displacing its own crumbling centre. Reluctant to do the same, the alternatives struggle to emerge. They struggle because we have now divorced politics from law. Our analysis of the state is increasingly reduced to strategic thinking about how to win elections, our understanding of politics is equated to exporting manuals for good governance around the world and our commitment to the rule of law is presented as a self-evident moral claim. But righteous outrage is no substitute for political action. If people think all politicians are corrupt, they are not going to miss them. If laws are widely seen as a tool in the hands of self-serving elites, nobody is going to feel sorry when judges are called traitors, or sympathise with bullied civil servants. The assault on legality will continue to have legitimacy.
For a just democracy to prevail against the tendencies towards authoritarianism, we must not passively defend the rule of law, but actively change how we do politics. The challenge lies in connecting the law – an abstract, seemingly eternal body of rules – to the realm of politics, to show which rules are worth changing and which are worth fighting for.
By the end of Kafka’s story, the man who seeks entrance to the law has become a friend of the gatekeeper. As his death nears, he wonders what would have happened if he had tried to fight. When he is on his last breath, the guardian leaves and the gates of the law are permanently shut. Will those angered by the prevailing of authoritarian norms manage to escape that fate? There is hope, but only.
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