Can populism be good for democracy, or does it always lead to autocracy? In the Season 3 finale of PALcast, host Fabio de Sa e Silva sits down with student intern Daniel Basey to take stock of what the Project on Autocratic Legalism has learned about how rising autocrats use law to gain and keep power.

They discuss PAL's main findings, the upcoming Cambridge handbook, and plans for Season 4. Daniel also argues that economic class helps explain who backs populist movements, from 1930s Germany to Japan today.

Along the way you'll get a reading list on fascism's social base. Learn more at autocratic-legalism.net.

Cited works:

Javier Corrales, The Authoritarian Resurgence: Autocratic Legalism in Venezuela. Journal of Democracy, 26(2), pp. 26, 37-51, 2015.

Kim Lane Scheppele, Autocratic Legalism. The University of Chicago Law Review, 85(2), pp. 545-584, 2018.

Rosalind Dixon and David Landau, Abusive Constitutional Borrowing: Legal globalization and the subversion of liberal democracy. Oxford University Press, 2021.

Ozan Varol, Stealth Authoritarianism. 100 Iowa L. Rev. 1673, 2015.

Fabio de Sa e Silva, Autocratic Legalism 2.0: Insights from a Global Collaborative Research Project, Verfassung und Recht in Übersee 55(4), pp. 419-440, 2022.

Thomas Childers, The Nazi Voter: The Social Foundations of Fascism in Germany, 1919–1933. University of North Carolina Press, 1983.

Thomas Childers, The Social Bases of the National Socialist Vote. Journal of Contemporary History, 11(4), pp. 17-42, 1976.

Arthur Schweitzer, Big Business and Private Property Under the Nazis. The Journal of Business of the University of Chicago, 19(2), pp. 99-126, 1946.

Today, Fabio talks to Sindiso MnisiWeeks.

Sindiso is Associate Professor in Legal Studies and Political Science at the University of Massachusetts Amherst and Adjunct Associate Professor in Public Law at the University of Cape Town (UCT). She is currently finishing a monograph titled “Alter-Native Constitutionalism: Common-ing ‘Common’ Law, Transforming Property in South Africa”.

Sindiso brings a different perspective to debate on the crisis of South African democracy that Fabio had with Dee Smythe, Michelle LeRoux, and Dennis Davis in PALcast's last episode.

As listeners may remember, those guests contended state capture is at the center of South Africa's democratic crisis, whose main “victim” is the “transformative” spirit of that country's constitution even more than the abstract scheme of liberal-democratic governance based on separation of powers and the rule of law.

Sindiso agrees that "state capture” is there and that it compromises the efficacy of the South African state and its ability to meet its constitutional promises. But she argues that South African constitutionalism has a deeper democratic deficit, which derives from colonialism and the way it deprived natives South African from their own laws. This continues through the current constitution, whose interpretation has been driven by understandings of things like property that are “uncommon” to most in the country.

Building on this insight, Sindiso argues that rather than structuring and sustaining democracy from the top down, by putting together and protecting an institutional framework typical of liberal-democracy and constitutionalism, and then socializing the people into those; we should do it from the ground up, by taking seriously “the normative conceptions and convictions of ordinary South Africans”. This is what she calls an “alter-native constitutionalism”.

In the interview, Fabio and Sindiso unpack this notion and discuss how it relates to liberal-democracy and constitutionalism and what would mean, in practice, to take seriously those “normative conceptions and convictions”.

They also discuss how to reconcile her argument with the finding that traditional authority and legality have been historically misused or abused in South Africa. And they finish with a conversation about what she is expecting from the upcoming elections in that country.

Today, Fabio talks to Dee Smythe (UCT honorary), Michelle Leroux (UCT and Wits), and Dennis Davis (UCT Emeritus).

Fabio and his guests focus mostly on the piece that the latter wrote for the PAL project, titled “What Future for Constitutional Democracy in South Africa?,” which was published in 2022, in VRÜ/World Comparative Law. That piece argues that “state capture” by sectors of the African National Congress, so-far the dominant party in South African politics, is at the center of the country’s ongoing democratic crisis. The main victim of this particular form of democratic decay is not just the ideal of liberal-democratic governance, based on separation of powers and accountability, but also – and perhaps more importantly – the promise of deep societal transformation that came along with South Africa's constitution, enacted after the end of apartheid.

Fabio and his guests then spend time unpacking an intriguing feature of democratic decay in South Africa: the “capture of tradition” or the cooptation and repurposing of “traditional leaders” by Zuma to build a more robust scheme of unaccountable governance. They finish with a discussion about the extent to which South African institutions have demonstrated resilience against this “capture,” as well as about the hopes and fears of interviewees regarding the upcoming South African elections.

Link to the VRÜ/World Comparative Law special issue: https://www.nomos-elibrary.de/10.5771/0506-7286-2022-4/vrue-verfassung-und-recht-in-uebersee-jahrgang-55-2022-heft-4?page=1