—David Landau, Florida State University College of Law
[Editors’ Note: In this forum on Egypt and New Perspectives on Constitution-Making, three young scholars of comparative constitutional law – Ozan Varol, Will Partlett, and David Landau – discuss their recent work on constitution-making and democratic transitions, focusing on Egypt. The work offers counter-intuitive predictions about the pace and design of the process, as well as the role of undemocratic actors like the Egyptian military in the transition.]
The Egyptian democratic transition has been widely panned by the media, NGOs, and scholars. Almost everyone has criticized the military’s continuing role in the state, and many have complained that the military – along with the courts – is making decisions that block or slow the activity of democratically-elected institutions. The conventional wisdom seems to be that the country needs a more rapid transition to democracy and that the military needs to fully withdraw from political life immediately.
Inside the country, electorally ascendant political forces, particularly the Freedom and Justice Party of the Muslim Brotherhood, are furthering this critique. They have complained bitterly about attempts by the military or courts for example, to temporarily suspend the Constituent Assembly, to impose conditions on the constitution-making process, and to dissolve the elected Parliament. All of these actions are facially very easy to attack – non-elected and autocratically tinged actors appear to be taking actions to stamp out the fledgling democracy. Moreover, as Varol has recently noted, the military often takes action to consolidate or advance its own autonomy, power, and financial position. The Egyptian case is no exception: the military has, inter alia, demanded a continuing role in the state and control over its own bloated budget. All of this makes for an easy case that the transition has been derailed or is on the verge of derailment.
Yet I believe that recent work by my colleagues on this forum, Ozan Varol and Will Partlett, as well as by myself, is a fundamental challenge to this perspective. That challenge in some sense rests on classic strands of comparative politics that have been at least partially forgotten. A set of critics of the overly-optimistic modernization theory, led by Sam Huntington and writing around the 1960s,noted that democratic transitions were difficult, and that creating mass participation prior to creating institutions to contain it often had disastrous results. Another wave of research working on transitions to democracy in the 1970s and 1980s argued that they had to be carefully crafted arrangements between supporters of the old regime and the new order, or they would risk falling back into dictatorship. The really dumbed-down translation of this tradition: democracy is hard, and democratic transitions involve making difficult choices.
These points lost some force with the end of the Cold War and thus the loss of major alternatives to democratic development; they may also have been affected by the expansion of human rights discourse to include rights to democracy and the avoidance of unconstitutional interruptions to the democratic order (as in the Inter-American framework). But undemocratic regimes haven’t gone away by any means; they have often just learned to masquerade as democracies. Levitsky and Way have identified a number of cases of what they call “competitive authoritarianism” – regimes where the incumbents adhere to the forms of democracy and in fact face real competition, but where they also systematically stack the deck in favor of themselves and against challengers. Chavez’s Venezuela is a classic example in Latin America; so are many of the regimes in the former Soviet Union, at this point likely including Russia.
There are, I think, two big points coming out of our shared recent projects. The first, as I have argued in “Constitution-Making Gone Wrong,” is that constitution-making in cases like Egypt should aim at avoiding worst-case outcomes like undemocratic or competitive authoritarian regimes, rather than focusing on achieving moments of deliberative democracy. In other words, this is a paradigm case where institutional design should focus on the second-best.
Transitions can easily get derailed, and democratically-elected forces themselves can be the cause of the derailment. The Venezuelan constitution-making process in the late 1990s is a good example from Latin America: the new President Hugo Chavez used the constitution-making process to quickly dismantle democratic institutions and to consolidate a competitive authoritarian regime. He used the rhetoric of constitutional politics to delegitimize institutions like the Supreme Court, the Congress, and the traditional parties: with these entities neutralized, he could more easily fill voids with his own supporters, thus weakening electoral competition for more than a decade. Partlett has found several similar examples in the post-Soviet states.
In Egypt, the Freedom and Justice Party has used its organization and popularity to dominate initial elections in Egypt, winning both the Presidency and a substantial plurality of the Parliament. The conventional wisdom, which asks the military and judiciary to get out of the way of these democratically-elected forces, misses the substantial danger that they will produce a constitutional order loaded in their own favor. This is not because of the particular ideology of the Muslim Brotherhood: it is simply because political forces tend to perpetuate their own power when possible.
The second, related point is that institutions like the military are not always unproductive in democratic transitions. Varol’s recent pieces have indicated that the military, historically, can sometimes help to consolidate a democratic transition. First, it can provide stability in a situation where most of the institutional order has broken down. Second, it can act as one of the few sources of bureaucratic capacity within a post-authoritarian state. Third, and most importantly, where the military is not so strong that it can plausibly close down the democratic order entirely, it might act as a valuable counterweight to ascendant electoral forces which might otherwise pursue authoritarian or quasi-authoritarian agendas.
To me, this is a plausible reason why the military and its allies like the courts should not necessarily just get out of the way. Their various decisions and actions, for example dissolving the Parliament, temporarily suspending the Assembly, and weakening the presidency, are better seen as attacks against the Freedom and Justice Party rather than against the concept of “democracy” in the abstract. They have not paved the way for an authoritarian takeover, but have instead served as a baseline for negotiations between the military and powerful political forces. There is no doubt that the transition has been extremely messy, but that doesn’t mean that it has been a disaster. The military, working with the courts, may be helping to prevent, rather than create, a new democratic breakdown in Egypt.
In the end, it’s the simple and not particularly novel point that I think might be getting lost: democracy is hard. There’s no way that Egypt is going to possess a high-quality democracy in the near-term; the possible paths instead are between various more or less bad options. And a result where the military plays some significant political role in the nascent Egyptian democracy, alongside electoral institutions, is likely far from the worst-case outcome. Under the circumstances, it might be about the best we can do.