Bureaucratic Law and Manifestly Illegal Measures: The Legal Anatomy of Autocratic Policy Tools

Abstract In European countries that are still considered liberal democracies such as The Netherlands and Belgium, one finds multiple cases of authorities executing policies targeting migrants that are manifestly illegal. The measures are illegal because they typically lack sufficient statutory basis or violate higher legal norms. The illegality is manifest because legal advisors of the government or courts have already found the measures illegal. The measures constitute autocratic policy tools within the meaning proposed by the editors of this special issue, because they deliberately exceed the legal limits set by treaty law, constitutional law and ordinary legislation, concentrating public power in the hands of the executive. According to the legal literature on autocratic rule, a typical feature of autocratic policy tools is the use of legal instruments enabling governments to portray their policies as in compliance with the law in order to get legal legitimacy, which in turn helps them win the support of the population and international actors. But when it comes to manifestly illegal measures the prospect of a legality bonus is absent. By the same token the manifestly illegal measures constitute a deployment of law, albeit in an unobvious way. But why do authorities cast the manifestly illegal measures in a legal form if they cannot benefit from the legality bonus? Why not simply operate completely outside the law? What kind of law can cope with measures that are overtly illegal? How can authorities afford to operate without legal legitimacy? The answer is bureaucratic law.