PALcast

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

Today, Fabio talks to Konrad Sartorius, Caleb Wisinger, and David Taitano – three students in the Masters of International Affairs program at the University of Oklahoma.

Konrad and Caleb attended a course on Autocratic Legalism taught by Fabio. With David, they built on what they learned with Fabio to develop a project for another course, which they named Democratic Legalism. In such project, they mapped vulnerabilities in the US constitutional order, which would make the country more susceptible to autocratic leadership, and proposed legal changes aimed at fortifying the resilience of the US system against such threats.

The episode begins with a discussion on what drew these students to studies of democracy, and how much attention they had paid to the nexus between law and democracy before interacting with Fabio. The episode moves onto a discussion about their project: what points of vulnerability do they identify in the US constitutional system and what remedies do they propose to fix those?

Fabio and his students then engage in a very lively conversation about the role and the limits of law in safeguarding democracy – recognizing that closing gaps in constitutional design alone may be insufficient to shield a country like the US from authoritarian leadership, but also that there are still strong and important reasons why we should care about building such legal resilience in democracies.

Like three others episodes in this series, this one offers yet another compelling illustration of how impactful the discussions promoted through this podcast and the PAL project can be in the academic, professional, and civic lives of students.

Today Fabio talks to Deepa Das Acevedo (Emory University Law School), Mohsin A. Bhat (Queen Mary University of London School of Law), and Mayur Suresh (SOAS School of Law). 

The conversation hinges mostly around the piece the guests wrote to the PAL project, titled “Authoritarianism in Indian State, Law, and Society" and published in 2022 in the World Comparative Law journal. In that piece, the guests argue that political change in India under Modi and the BJP does involve a degree of “autocratic legalism”, according to the conception that we began working with on this podcast and in the PAL project. To concentrate power and govern without constraints, Modi and the BJP do make use of incremental and malicious changes in constitutional and statutory law. But that alone is insufficient to fully characterize the Modi moment and its relationship with law. This moment, they argue, is further based on an ideology (Hindu nationalism) that combines ethnic and religious components and is backed up by mass mobilization.

In the interview, the guests unpack this argument and debate how it adds to the framework of studies on autocratic legalism, which up to this point, both the host and the guests agree, had been too focused on the state and power concentration in the hands of a single individual (the autocrat), overlooking the connections between the state and society and the broader social or economic hierarchies that current authoritarian leaders have also helped entrench. 

Fabio and his guests also discuss the methodological premises of their work (the orientation they share toward “law as it is lived on the ground”), which has enabled them to spot these specific dimensions of the phenomenon we have been trying to better understand in our project. And they finish with discussions about the prospects for resistance to Modi and the BJP and attempted predictions about how the story of Indian democracy may unfold.

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

Today, Fabio talks to Raquel Pimenta.

Raquel is a law professor at the FGV Law School in São Paulo, which has been the primary site of PAL research in Brazil. Their team, which Raquel helped lead, has just produced a forthcoming edited book on Bolsonaro’s rule and its relationship with the law, which comprises 13 chapters and involved 22 contributors. 

In this episode, Fabio and Raquel discuss the work she did to organize the Brazilian leg of the PAL project, which can be inspirational to listeners seeking to do something similar in their institution or country.

Fabio and Raquel also discuss some contributions stemming from studies of Brazil under Bolsonaro to scholarship on law and democratic backsliding. But they spend most of the time exploring Raquel’s own addition to such scholarship, featured in a special issue of the VRÜ/World Comparative Law journal.

Raquel's article, coauthored with FGV Professor Marta Machado, revolves around the existence of “zones of authoritarianism” within Brazil's incomplete “rule of law,” which predated Bolsonaro's rise to power. Bolsonaro, rather than constructing entirely new authoritarian structures, simply expanded upon these pre-existing zones to govern as he saw fit.

They finish with a discussion about Bolsonaro’s defeat and what the reconstruction of Brazilian institutions has been like after him. 

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

PALCast episode featuring Sofia Rolim (cited): https://spotifyanchor-web.app.link/e/m2fbBs3RsEb

PALCast episode featuring Oscar Vilhena (cited):

https://spotifyanchor-web.app.link/e/GFJYG04RsEb

PALcast host, Fabio de Sa e Silva, explains what he and his guests will be discussing during season 3 of PALcast. His primary focus will be on the papers published by PAL collaborators in a special issue of the World Comparative Law journal, released in early 2023. This special issue includes in-depth studies on Brazil, India, South Africa, Hungary, and the United States. It also features two cross-cutting pieces, written by him and Kim Scheppele, in which they try to derive lessons our project may have generated to the larger field of studies on autocratic legalism. Here is a link to the special issue:

https://www.nomos-elibrary.de/10.5771/0506-7286-2022-4/vrue-verfassung-und-recht-in-uebersee-jahrgang-55-2022-heft-4

Fabio also plans to explore some themes that have emerged from PAL research findings as significant to a deeper understanding of autocratic legalism. These include religion, political economy, and informal legality, and their connections to legal assaults to democracy. Lastly, he plans to interview scholars who are leading several other projects similar to PAL, which sprung in the sociolegal community. In those conversations, he plans to compare and contrast our approaches, methodologies, and findings.

For more information on the PAL project, go to www.autocratic-legalism.net