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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.
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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
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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.
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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
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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
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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
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Today, Fabio talks about the accomplishments of season 2 and what he had to leave for season 3.
He also announces a short break and shares information about this call for paper through which PAL is recruiting collaborators for its next phase: https://autocratic-legalism.net/call-for-papers-sep-22/
If you want to work with us, take a look at the call and submit your abstract. If you know of someone who might be in a good position to work with us, send them the link to this episode or to the call, and tell them we are looking forward to hearing from them! -
In the last two episodes of this season, Fabio interviews two students who were engaged with PAL, and the themes we are exploring through the Project.
Today he talks to Sofia Rolim, a Master's Student at FGV Law School in São Paulo, Brazil, one of the main institutions behind the PAL project. At FGV, Sofia took a seminar on autocratic legalism, led by PAL researchers Marta Machado and Raquel Pimenta. Sofia also became a graduate research assistant, helping with the editorial work needed for a Brazilian book on autocratic legalism, as well as with some of the organizing work needed for PAL in general.
Sofia’s own studies focus on Bolsonaro’s policies in public safety, which have led to an increase in police violence and access to firearms.
In the episode, Fabio and Sofia draw from her organizing and intellectual work in PAL to reflect upon the issues we always reflect upon on the podcast, that is, "what is happening to democracy?" and "what does law have to do with it?". -
In the last two episodes of this season, Fabio interviews two students who were engaged with PAL, and the themes we are exploring through the Project.
Today he talks to Ryleigh Horst, his former undergraduate student at the University of Oklahoma.
Ryleigh did extensive studies about democracy and current trends of democratic backsliding and also stood out for her activist work. In 2021, she helped write a petition submitted to the Inter-American Human Rights Commission, to fight the execution of Julius Jones, a former OU student who received a death penalty sentence in what many understood to be an unfair trial.
In the episode, Fabio and Ryleight draw from her intellectual and political engagement on campus to reflect upon the issues central to this podcast, that is, "what is happening to democracy?" and "what does law have to do with it?". -
Today, Fabio talks to David Trubek, Voss-Bascom Professor of Law and Dean of International Studies Emeritus at the University of Wisconsin-Madison and Senior Global Fellow at FGV Direito SP, the FGV Law School in Sao Paulo.
David really needs no introduction to most PALcast listeners; he is a true icon in law and society and law and development studies. Among his many qualities is his experience putting together large research projects, with scholars from what we now call the “Global North” and the “Global South”, which PAL builds upon and expands.
David has also been a key contributor to PAL. He helped convene the first group of scholars in our project, he gave us mentorship and support, and he is helping to lead one of our project components, titled “transnational efforts to combat authoritarianism” or TRECA, which he lays out in the interview.
This conversation helps highlight PAL's significance as a global sociolegal endeavor and gives proper recognition to David's role as a major driver of our project. -
Today, Fabio talks to Michael McCann, a professor at the University of Washington and former president of the Law and Society Association.
Michael is known for his studies on legal mobilization and recently published an essay (with Filiz Kahraman) arguing that “the distinction between liberal and illiberal, or authoritarian legal orders is misleading”, because most countries, including the US, are “governed by plural, dual, or hybrid legal institutions, principles, and practices”. They also place this duality or hybridity in a political economy context, particularly what they call “racial capitalism”.
Exploring these ideas, Fabio and Michael engage in an insightful conversation, which also touches on issues like the myth of US exceptionalism and how studies of the global south can help illuminate what goes on in the global north.
Michael and Filiz's essay can be consulted at: https://www.annualreviews.org/doi/abs/10.1146/annurev-lawsocsci-111720-012237 -
In this episode, Fabio talks to Swethaa Ballakrishnen, a law professor at UCI with training in sociology and law. Swethaa studies legal globalization and how law and legal institutions create, sustain, and counter different kinds of socio-economic inequalities, drawing from fieldwork in multiple sites. But the interview focuses mostly on the book Swethaa edited with Sara Dezalay, called "Invisible Institutionalisms", which questions the process by which academics give meaning to global legal development and how this sometimes reifies categories and hierarchies. This is a timely conversation for a project like PAL that is set off to produce "global collaborative research" involving scholars in both the "North" and the "South".
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Today, Fabio talks to Tom Ginsburg, a professor of international law and political science at the University of Chicago and the author of "How to save a Constitutional democracy" (with Aziz Huq) and the brand-new "Democracies and International Law". Fabio and Tom discuss how modern autocrats use law to consolidate power, how the US has proven vulnerable to democratic erosion through law, and whether improvements in legal design (domestically or internationally) may help slow or stop these processes.
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PALcast host, Fabio de Sa e Silva, explains what he and his guests will be discussing during season 2 of PALcast. For more information on the PAL project, go to www.autocratic-legalism.net
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Today, Fabio is interviewed by his student Ahmed Abdelaziz, who also helped with PALcast's production. They talk about the motivations, challenges, and joy of producing PALcast season 1 and what is being planned for season 2
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Today, Fabio talks to Kim Lane Scheppele, a Professor of Sociology and International Affairs at Princeton University. Kim has a very special place in the PAL project. She was the scholar who popularized the term "autocratic legalism" in law and society studies and, back in 2019, she gave a powerful speech at the annual meeting of the Law and Society Association, urging scholars to study how law had become part of the toolkit of autocrats. PAL was born that day, in response to her call. Fabio and Kim discussed what autocratic legalism is, how it may differ from populism, and how the practices of legalist autocrats can be resisted and stopped
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Today, Fabio talks to Helena Alviar, a law professor at Sciences-Po law school, in France, after a prolific career in Colombia. Helena wrote many pieces that are being read in the PAL project, such as a study on the "legal architecture of populisms" and one on "neoliberal economics as authoritarianism". Fabio and Helena discussed these research findings, as well as the epistemology she adopts in her studies, grounded in Critical Legal Studies and Law and Development. They end the conversation with a great exchange on gender and autocratization, a theme that we hope will be brought closer to the center of the PAL project
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Today, Fabio talks to Bojan Bugaric, a public law professor at the University of Sheffield Law School, in the UK. Mark Tushnet, Bojan just launched a book entitled “Power to the People: Constitutionalism in the Age of Populism”. Fabio and Bojan discuss different kinds of populism, how they may affect law and democracy, and why it is worth investigating not only the consequences but also the causes of what Bojan calls "authoritarian populism"
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Today, Fabio talks to Anthony Pereira, a political scientist who teaches at the King's College, in London. Pereira is the author of Political (In)justice, a book on how Latin American dictatorships used the law to repress political dissidents, which he then labeled authoritarian legality. Fabio and Pereira discussed how these lessons from the past could be used in efforts to understand present-day autocratic legalism and what Brazilianists got wrong about Brazil.
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Today, Fabio talks to Rick Abel, an Emeritus Law Professor at UCLA. Rick recently published two books on the United States war on terror, which researchers at the PAL project have found particularly useful. The reason is, in these books, Rick shows how a liberal legal order can quickly be turned into an illiberal one, to fight those who are framed as “enemies of the nation”. In the episode, Fabio and Rick discuss what these processes involve and what they tell us about the ability that law and lawyers have, or lack, to protect or to undermine political liberalism
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