UCLA School of Law

This essay, a revised and expanded version of my keynote address at the California Western School of Law’s 2026 Spring Symposium on the Rule of Law: A Global Examination of Government and Institutional Power, explores the relationship of authoritarian populism to the rule of law. Unlike its universal record of democratic backsliding and assaults on the separation of powers, there is a certain ambiguity in both the practice of authoritarian populist regimes and the literature on it with respect to this issue. While the ways in which such regimes are hostile to the rule of law are routinely and properly emphasized, some influential commentators have also identified and underscored their general legalistic approach to governance and preferred employment of procedurally valid forms of legal and constitutional change. Since these might be thought of as laudable, rather than nefarious, traits from a rule of law perspective, this seemingly bifurcated reality and analysis calls for a closer look.

The essay argues that authoritarian populist regimes have more of a selective approach towards the rule of law than an unrelentingly and wholly hostile one. While they violate certain of its key components, for a variety of reasons they mostly adhere to some others so that, overall, there is significant rule of law backsliding rather than complete rejection.  In other words, there is a rule of law equivalent to the survival of minimally free and fair elections. To be clear, the goal of the essay is not to defend or rehabilitate the authoritarian version of populism but to help understand it, as a highly visible contemporary regime type that falls somewhere in between normal governments in democracies (including ordinary, or non-authoritarian, populist governments) and fully authoritarian ones.

To this end, the essay also considers how, if at all, this relationship to the rule of differs from those in fully authoritarian systems. To help answer this question, it identifies three types of such regimes that are distinguished by their approaches to law: the “dual state,” so-called “rule by law,” and authoritarian rule of law. Finally, the essay posits a rule of law-lawless governance spectrum and locates various distinct regime types, including authoritarian populism, on it. This spectrum reflects the position that adherence to the rule of law is not a simple yes or no binary. Rather, there are a series of gradations representing diminishingly robust and eventually less than minimalist compliance with the rule of law in between the poles.