Death by a thousand cuts: measuring autocratic legalism in the European Union’s rule of law conundrum

Abstract

Where autocratization through classical coups belongs to the twentieth century, democracies are today primarily demolished through “autocratic legalism”, a governing technique destroying democracies deliberately and incrementally within the law itself. As a result, it often goes unnoticed by hiding in judicial robes. This makes it harder to categorize regimes and necessitates a greater analytical sensitivity of the indices that many decision-makers – like in our case the European Union – have come to rely on when monitoring and attempting to protect democracy. By exemplifying the workings of autocratic legalism in Hungary and Poland, we firstly discuss what is needed to measure this new type of autocratization and how some of the leading indices fall short in this regard. We secondly discuss how relying on less adequate indices like Polity5 and Freedom House makes it more challenging for authorities like the EU to monitor, criticize, and sanction violations of democratic principles. In arguing that an index like V-Dem would offer a better foundation for tackling the Union’s rule of law conundrum, we stress that the EU’s problems are only in part due to the use of mediocre indices but also linked to increased politicization of democratic backsliding in the EU.