From Electoral Autocracy to Democratic Restoration: The Legality/Legitimacy Dilemma

Abstract Electoral autocracies sustain themselves through periodically held, pluralistic elections that are nominally free but manifestly unfair. Yet, on occasion, the opposition prevails in an uphill battle and assumes power. This paper examines cases in which democratic restoration cannot proceed without a supermajority, and the post-autocratic government lacks it. Such a situation presents the government with a dilemma: it either proceeds in strict compliance with the rules that govern legislative procedure, or it does not. If it does, legality is preserved—but at the serious risk that democratic restoration will remain unattained. If it does not, the government may attempt to initiate a transition toward a legitimate liberal democratic regime, but the irregularities involved may undermine legality and, more broadly, the rule of law. This paper addresses the dilemma from the conflict between the requirements of restoring a legitimate democratic regime and those of proceeding in accordance with the norms of legality. It seeks to clarify the nature of that dilemma by introducing two distinctions: one between dilemmas of desiderata and moral dilemmas, and second, between rigid and flexible moral dilemmas. It argues that the post-autocratic government’s dilemma is moral in nature and flexible in structure. With this characterization in view, the paper addresses the question of how that dilemma ought to be navigated.