Constitutional Variation Among Strains of Authoritarianism

Constitutions in Authoritarian Regimes (Tom Ginsburg & Alberto Simpser eds., Cambridge Univ Press, 2014), Forthcoming

Washington University in St. Louis Legal Studies Research Paper No. 13-12-01

54 Pages Posted: 16 Dec 2013 Last revised: 14 Mar 2014

See all articles by David S. Law

David S. Law

The University of Hong Kong - Faculty of Law; University of California, Irvine School of Law

Mila Versteeg

University of Virginia School of Law

Date Written: December 15, 2013

Abstract

Authoritarian regimes can make surprising constitutional choices. Many adopt sham constitutions packed with rights guarantees that they do not uphold. Others, however, adopt brutally candid constitutions that forthrightly limit or omit a variety of basic rights. The result is a considerable degree of constitutional variation among authoritarian regimes.

In this contribution to an edited volume, we find that some of this variation can be explained by distinguishing among different strains of authoritarianism. As an empirical matter, we find that constitutional candor is more common among monarchical and military regimes than civilian or party-based dictatorships. As a theoretical matter, we argue that this pattern reflects the divergent strategic incentives faced by different types of authoritarian regimes.

Our empirical analysis compares the constitutional choices of four different types of regimes — democratic regimes, monarchical regimes, military regimes, and civilian or party-based regimes — over the period from 1981 to 2008. Specifically, we estimate a multinomial logit model in which the predictor variable of interest is the type of regime, and the dependent variable is the type of constitution adopted. This regression analysis confirms the existence of statistically significant differences among monarchical, military, and civilian dictatorships that cannot be explained by variables such as economic development, geographic region, or civil war. Even after controlling for such variables, civilian dictatorships are significantly less likely to practice constitutional candor, and more likely to adopt sham constitutions, than either monarchical or military dictatorships.

These findings support our hypothesis that authoritarian regimes are rational, self-interested actors that make constitutional choices on the basis of strategic calculations which vary from one type of regime to another. On the one hand, adoption of a sham constitution offers authoritarian rulers a relatively cheap way of appealing ideologically to domestic and international constituencies. On the other hand, adoption of a candid constitution can help authoritarian rulers to resolve a variety of coordination problems. A relatively candid constitution can be useful to an authoritarian regime as a means of allocating power and resolving conflict within the regime, and of generating self-reinforcing popular beliefs about the ubiquity of government control and the consequences of opposition or dissent. Conversely, a sham constitution can backfire by depriving regime members of a device for overcoming internal coordination problems while simultaneously providing regime opponents with a coordination device of their own.

The three types of authoritarian regimes balance the costs and benefits of constitutional candor largely in the manner that we would expect under this hypothesis. Compared to civilian or party-based dictatorships, monarchical regimes enjoy greater historical legitimacy, while military regimes enjoy superior capacity for coercion. These advantages ought to render monarchical and military regimes less dependent than civilian regimes on ideological approval or international acceptance, and more at liberty to adopt unappealingly candid constitutions. By contrast, because civilian regimes are not as well positioned to flout the expectations of domestic and international audiences, they may weigh the costs of constitutional candor more heavily. Consistent with this account, civilian regimes are in fact less prone to constitutional candor than either monarchical or military regimes.

Keywords: authoritarian, autocratic, dictatorship, constitutions, constitutional drafting, constitutional candor, sham constitution, candid constitution

JEL Classification: H11, K3, K4

Suggested Citation

Law, David S. and Versteeg, Mila, Constitutional Variation Among Strains of Authoritarianism (December 15, 2013). Constitutions in Authoritarian Regimes (Tom Ginsburg & Alberto Simpser eds., Cambridge Univ Press, 2014), Forthcoming; Washington University in St. Louis Legal Studies Research Paper No. 13-12-01. Available at SSRN: https://ssrn.com/abstract=2368049

David S. Law (Contact Author)

The University of Hong Kong - Faculty of Law ( email )

Pokfulam Road
Hong Kong, Hong Kong
China

HOME PAGE: http://www.davidlaw.ca

University of California, Irvine School of Law ( email )

401 E. Peltason Dr.
Ste. 1000
Irvine, CA 92697-1000
United States

Mila Versteeg

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States

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