On the Interdependence of Liberal and Illiberal/Authoritarian Legal Forms in Racial Capitalist Regimes…The Case of the United States

Abstract

Scholars conventionally distinguish between liberal and illiberal, or authoritarian, legal orders. Such distinctions are useful but often simplistic and misleading, as many regimes are governed by plural, dual, or hybrid legal institutions, principles, and practices. This is no less true for the United States, which often is misidentified as the paradigmatic liberal constitutional order. Historical and critical scholarship, including recent studies of law under racial capitalism, provide reason to identify American law as a dual state in which legal forms that govern property ownership, contract relations, and civil liberties of free citizens differ from the more illiberal, authoritarian legal forms that rule over subaltern populations, particularly racialized, low-wage workers, Indigenous populations, the poor, immigrants, and women. This dual state, we argue, did undergo changes to adopt more procedurally liberal, professional, overtly deracialized legal forms after World War II, but these changes masked more than tamed the continuing illiberal, authoritarian violence that targeted marginalized citizens. While constantly changing, the American legal system is best understood not as a singular liberal order but instead as a hybrid system of mutually constitutive liberal and illiberal and authoritarian legal practices. Expected final online publication date for the Annual Review of Law and Social Science, Volume 17 is October 2021. Please see http://www.annualreviews.org/page/journal/pubdates for revised estimates.

Distinctions With a Difference: Illiberalism and Authoritarianism in Scholarly Study

“…If we pretend that coercion is constitutive of illiberalism, this bodes ill when differentiating it from liberalism, which of course often uses coercion for egalitarian or market-creating purposes (Polanyi, 2001;Wilkinson, 2021). Indeed, one point of continual difficulty, especially in critical scholarship, is the problem of theoretically acknowledging coercion and state power in clearly democratic and even liberal regime contexts (Gallo, 2022;McCann and Kahraman, 2021).…”

“…The problem of terminological deployment is not a novel concern, and other scholars have noted it from very different disciplinary perspectives. In an issue of the Annual Review of Law and Social Science , McCann and Kahraman (2021), for example, have argued that critical legal theorists tend to conflate “illiberal” and “authoritarian” legal orders. Noting this, their work seeks to disentangle this confusion by separating illiberal law (“characterized primarily by the denial of core rights status and rights protections to large swathes of legal subjects”) and authoritarian legal orders (“limited accountability to the subjects over which law rules”)—in doing so, they helpfully acknowledge the conceptual problems motivating the discussion here from a critical perspective (McCann and Kahraman, 2021: 484).…”

Introduction to the Research Handbook on Law, Movements and Social Change: On "legitimate political discourse" in the global twenty-first century

“…Its use in colonial regimes is a particularly important tell, for many Euro-American empires have claimed to be democracies "at home" while imposing their rule abroad (see, e.g., Atiles-Osoria, 2012;Baxi, 2000). As Lynette Chua argues in the second chapter of this Handbook and elsewhere (Chua, 2019a; see also Mickey, 2015), democratic societies contain authoritarian "enclaves" and vice versa, spaces within which social control is tighter and more pervasive than in the regime at large, or looser and more permissive (see, e.g., Jung, 2021a;McCann & Kahraman, 2021;McCann & Lovell, 2020). And from many critical perspectives, these enclaves depend on each other, the freedom of the one dependent on the control of the other (Madlingozi,Chapter 15 in this Handbook; see also Madlingozi, 2017;McCann & Kahraman, 2021).…”

“…As Lynette Chua argues in the second chapter of this Handbook and elsewhere (Chua, 2019a; see also Mickey, 2015), democratic societies contain authoritarian "enclaves" and vice versa, spaces within which social control is tighter and more pervasive than in the regime at large, or looser and more permissive (see, e.g., Jung, 2021a;McCann & Kahraman, 2021;McCann & Lovell, 2020). And from many critical perspectives, these enclaves depend on each other, the freedom of the one dependent on the control of the other (Madlingozi,Chapter 15 in this Handbook; see also Madlingozi, 2017;McCann & Kahraman, 2021). This often occurs through the police (Destine, Chapter 17 in this Handbook) and surveillance mechanisms (Arnold, Chapter 4) that differentially target marginalized people, but in ways that are cleansed by the purported rationality and objectivity of law (Farid, Chapter 6).…”

Good Bye, Liberal-Legal Democracy!

“…The other sources look more closely and explicitly at the role of law in processes of democratic backsliding. These texts include the seminal articles on autocratic legalism (law-centered tactics used by rising autocrats to concentrate power) by Javier Corrales (2015) and Kim Lane Scheppele (2018) and emerging studies of Brazil, India, South Africa, Hungary, and the United States (Ginsburg and Huq 2018;McCann and Kahraman 2021; Verfassung und Recht in Übersee/World Comparative Law, forthcoming; Vieira et al, forthcoming). These works present different perspectives and insights, but here I focus on two of their main contributions to the literature analyzed in this essay.…”