"The accumulation of all powers, legislative, executive, and judiciary, in the same hands," James Madison wrote in Federalist No. 47 in 1788, "may justly be pronounced the very definition of tyranny." Modern backsliding rarely abolishes the separate branches Madison prized. Instead, it fills them with allies, changes what they are allowed to do, or makes them too frightened to act. Studies of many cases describe a recurring sequence of moves, sometimes called the autocrat's playbook.

Capture the referees

Every democracy depends on bodies meant to be neutral: courts, prosecutors, election commissions, central banks, tax authorities, police and auditors. They act like referees in a match. A government that controls them can investigate opponents, ignore its own wrongdoing and win disputed calls. The methods are familiar. Court packing means enlarging a court so that the government can appoint a new majority. Other methods include forcing out sitting judges, shifting cases to new chambers, or cutting budgets. In Hungary, for example, the retirement age for judges was cut from 70 to 62, removing many senior judges at once. Election bodies can be reshaped by changing who appoints their members. The capture is often legal on paper, which is part of its power: there is no single illegal act to point to.

Sideline the opponents

Modern autocrats prefer not to jail critics en masse, because it draws attention. More common is selective, lawful-looking pressure: tax audits of hostile newspapers, defamation suits against journalists, regulatory fines on businesses that fund the opposition, and criminal cases that keep opposition leaders off the ballot. Scholars and activists in Latin America call one version "lawfare," the use of legal proceedings as a weapon against political opponents. The term is contested, because genuine corruption cases against politicians are also prosecuted, and the defenders of every accused politician cry lawfare. The question to ask is whether the law is applied evenly to allies and rivals.

Rewrite the rules

The third set of moves changes the rules of competition. Electoral districts are redrawn; new rules make it harder for opposition parties to register or form alliances; campaign finance and broadcast rules are tailored to favor the incumbent. The most direct move concerns term limits. Comparative research by legal scholars such as Mila Versteeg and Tom Ginsburg found that presidents who try to stay beyond their limits use several routes: amending the constitution, writing a new one, or getting a friendly court to set the limit aside. In Bolivia, voters narrowly rejected removing President Evo Morales's term limit in a 2016 referendum, but Bolivia's constitutional court ruled in 2017 that term limits violated Morales's human rights, letting him run again. Nicaragua's supreme court cleared the way for Daniel Ortega in a similar ruling in 2009.

Use crises and emergencies

Emergencies, real or exaggerated, offer a fourth tool. Terror attacks, coup attempts, pandemics and economic crises justify decrees that bypass the legislature. Most democracies grant emergency powers, and using them is not in itself backsliding. Warning signs include emergency powers with no fixed end date or legislative review, powers far broader than the crisis requires, and measures that outlast the danger.

Worked example

Hungary after 2010 is the case most cited by scholars of autocratic legalism. In April 2010 Viktor Orbán's Fidesz party, with its ally the Christian Democrats, won about 53 percent of the list vote, which the electoral system turned into two thirds of the seats in parliament. That supermajority was enough to amend or replace the constitution. Within a year a new constitution, the Fundamental Law, was adopted without the support of any opposition party, and it took effect in 2012.

The referees came next. The Constitutional Court was enlarged from 11 to 15 judges, and the rules for nominating judges were changed so that the governing majority alone could choose them. The lower judicial retirement age forced out a large group of senior judges; the Court of Justice of the European Union ruled in 2012 that this was unlawful age discrimination, but most of those judges did not regain their former leading posts. A new Media Council, its members chosen by the parliamentary majority, gained power to fine broadcasters. Electoral districts were redrawn and parliament was cut from 386 to 199 seats.

The results showed in 2014. Fidesz and its ally won about 45 percent of the list vote but exactly two thirds of the seats. International observers from the OSCE reported that the election was well run on the day but that the governing party enjoyed an undue advantage. In 2020, during the pandemic, parliament let the government rule by decree with no fixed end date, which the European Parliament criticized. Orbán's defenders say Fidesz has won repeated free elections by large margins, reflecting real support for its positions on migration, family and national sovereignty. Both things can be true: a government can be popular and still have tilted the field.