By Fernando Casal Bértoa
Spain’s political struggles reveal how democratic erosion increasingly unfolds through boundary–pushing legal tactics rather than overt authoritarian ruptures. These dynamics illuminate a broader pattern in which the letter of the law is upheld while its spirit is strategically hollowed out.
The days when many democracies were violently wiped off the map through wars or military coups seem to be a thing of the past. Recent coup attempts in Armenia, Peru, and South Korea, as well as assaults on parliament in Brazil and the United States, have failed. Nonetheless, as the latest Democracy Report 2025 by the renowned Varieties of Democracy Institute shows, the global quality of democracy has declined to Cold War levels, reaching its lowest point in 50 years. An end to this decline is not in sight. Spain—identified in the same report as one of 20 countries at risk of autocratization—is, as we shall see, clear proof of this continuous democratic backsliding, a process I’ve also examined in an earlier article. As Turkish journalist in exile Ece Temelkuran rightly points out in her book, How to Lose a Country, the end of democracy today “does not happen with one spectacular Reichstag conflagration, but is instead an excruciating, years-long process of many scattered, seemingly insignificant, little fires that smolder without flames.”
In their new work, The Tyranny of the Minority, Harvard University professors Steven Levitsky and Daniel Ziblatt analyze non-violent ways to attack democracy. They focus on actions that, while in accordance with the letter of the law, deliberately undermine its spirit –“constitutional hardball,” as Professor Mark Tushnet coined the term more than two decades ago.
According to Levitsky and Ziblatt, there are four ways in which politicians weaponize law to weaken a democracy: exploiting legislative loopholes, using law excessively or unduly, enforcing law selectively, and engaging in “lawfare.” Political actors susceptible to engaging with such actions include not only so-called populists but also leaders of mainstream parties.
The first example of constitutional hardball in Spain has been the approval of the so-called “Amnesty Law,” aimed at extinguishing the criminal liability of all those responsible for organizing illegal independence referendums in Catalonia in 2014 and 2017. This law, whose constitutionality has been upheld by the Spanish Constitutional Court (CC) on the grounds that “the legislator may do anything that the Constitution does not explicitly or implicitly prohibit,” has been harshly criticized by both the Venice Commission and the European Commission. Among other concerns, these institutions faulted the law for (1) being overly vague, and therefore threatening the separation of powers; (2) constituting a self-amnesty that does not correspond to the general interest; and (3) having been approved urgently and without the necessary guarantees a law of this category requires.
Excessive or undue use of the law is another strategy employed by those playing constitutional hardball. The suspension of parliament during the COVID-19 pandemic, declared illegal by the CC, provides a clear example of such inappropriate use of the legal instruments (e.g., on the state of alarm, exception, and siege), in this case to violate MPs’ political rights. The government also abused the pardon, a tool originally designed for “exceptional” cases. Instead, Pedro Sánchez’ government employed it for political propaganda purposes in the case of Juana Rivas, to favor party members and allies like two socialist former presidents of Andalucia, or to “self-pardon” parliamentary associates such as the Catalan leaders condemned for sedition, whose “democratic values [were] at the antipodes of what can be expected from someone who aspires to be pardoned in accordance with the parameters outlined by law” (the Supreme Court dixit). We should also not forget the excessive (almost every two weeks), hasty (e.g. using “omnibus” decrees), or botched (e.g., Franco’s exhumation) use of decree-law. This instrument was conceived for cases of “extraordinary and urgent need,” not as an everyday legislative tool of the government.
Another way to corrupt a democracy is the selective enforcement of laws, either by avoiding their application or by implementing them subjectively to harm a rival.
The parliament’s speaker, Francina Armengol, has been heavily criticized by the opposition for blocking or postponing up to 40 legislative proposals, including initiatives already approved by the Senate. Similar patterns can be observed in multiple government legislative bills. For example, the new civil service laws are intended to shield appointed officials. These include the so-called “Begoña Law” (on protection against abusive legal actions), the “Bolaños Law” (for judicial efficiency), or the “Falcon Law” (on official secrets), which aim to protect the presidential entourage from ongoing judicial investigations. The renewal of the Attorney General’s mandate against the opinion of the General Council of the Judiciary, the selective application of the “Transparency Law” (with thousands of violations), the withdrawal of institutional advertising from media outlets critical of the government, and the capture of more than 40 public entities by members of the Socialist Party and its allies are additional examples of the crooked use of law and institutions by the Spanish government.
Finally, “lawfare” refers to the strategic creation of ostensibly impartial laws, as well as the manipulation of judicial bodies, to persecute the opposition under the guise of legality. There could not be a clearer example of how the judiciary can be instrumentalized than the way in which the current Prime Minister rose to power in 2018. Sánchez relied on a single sentence that a so-called “progressive judge,” José Ricardo de Prada, had included in a ruling by the Spanish National Court (SNC) to justify a motion of no confidence against the then-ruling People’s Party. This sentence in the SNC’s judgment was later overturned by the Supreme Court. The selective use of the Attorney General’s Office, not only to defend the President’s family, but also to attack the President of the Autonomous Community of Madrid, may likewise constitute a case of lawfare. Not in vain, the Attorney General has just been banned from his post for two years by the Supreme Court after being found guilty of leaking confidential information.
As Levitsky and Ziblatt warn in their latest book, democratic decline in the 21st century cannot be understood without “constitutional hardball.” It takes place gradually, through a series of measures supposedly designed to, as the Spanish government has publicly announced, improve the “independence of the Prosecutor’s Office,” create a “more agile, accessible, and digital justice system,” combat “media mudslide” and corruption, or enhance “social coexistence and cohesion.” Without bloodshed, without arrests, without exiles… criticism of legal measures is dismissed as alarmist, if not partisan. Slowly but surely, democracy is eroding, almost imperceptibly… until there is no turning back.
A longer version of this article was first published in Spanish in El Mundo.
Fernando Casal Bértoa is an Associate Professor at the University of Nottingham and Research Affiliate at the CEU Democracy Institute, Budapest.
This article is published under the sole responsibility of the author, with editorial oversight. The views expressed do not necessarily reflect those of the editorial team or the CEU Democracy Institute.
