—Tom Gerald Daly, Fellow, Melbourne Law School; Associate Director, Edinburgh Centre for Constitutional Law
[Editor’s note: This is one of our biweekly I-CONnect columns. Columns, while scholarly in accordance with the tone of the blog and about the same length as a normal blog post, are a bit more “op-ed” in nature than standard posts. For more information about our four columnists for 2017, see here.]
In their latest Global Constitutionalism editorial Mattias Kumm, Jonathan Havercroft, Jeffrey Dunoff and Antje Wiener consider the decay, even the end, of ‘the West’–“a relatively cohesive geopolitical configuration anchoring a normative model of global order in which commitments to human rights, democracy and the rule of law are central.”[1] However, they argue that this would not necessarily mean the end of global constitutionalism, pointing to the fuzzy identity of ‘the West’ itself, the ambivalent and non-linear relationship between the West and constitutionalism, the potential for non-Western states (including undemocratic states such as China) to step into the vacuum left by Western powers retreating from the international order, the deeply embedded principles of constitutionalism in structures and practices globally, and the lack of a coherent single alternative ideology to supplant it.
In terms of this column’s preoccupation with democratic decay–defined as the incremental degradation of the structures and substance of liberal constitutional democracy–we could, then, bemoan democratic decay in the West but console ourselves that the spirit of liberal constitutional democracy will live on, and evolve, outside of its traditional Western redoubts, providing sustenance for the endurance of global constitutionalism more broadly as a dominant register for articulating and organising a variety of multi-lateral and multi-level political relationships. The sticking point is that we are not seeing democratic decay solely in the West: it is a global phenomenon.
Which brings us to a pressing question: does decay in some democracies matter more than others, and would significant decay in a small number of key democracies worldwide spell the end of global constitutionalism? Conservation biologists speak of ‘keystone species’: a species so disproportionately important to its ecosystem that its disappearance can remodel the entire system, set in train a negative ‘domino effect’ for the other species in the system (leading to widespread extinction at its extreme), or open a space for new invasive species.[2] In the context of the global democratic ecosystem, which has supported (and been supported by) the emergence of global constitutionalism, do some states count as ‘keystone democracies’ whose removal could profoundly undermine the system as a whole? This is not mere conjecture: recent research, for instance, has shown that a regional political context supportive of democracy, reflected in the presence of other democracies in the region, is a strong factor in the sustainability of each individual domestic democratic system in the region. The converse is also true: authoritarian regimes perceived as successful breed imitators.[3]
At the global level, on democratic influence and profile alone we might reel off a list of keystone democracies that includes the US, the UK, France and Germany in ‘the West’. Non-Western keystone democracies might include India, South Africa, South Korea, Japan, and Brazil. These democracies may matter more than others for a variety of reasons, whether because they play an outsized role in the global imagination as symbols of democracy (for different reasons); provide leading institutional models of liberal constitutional democracy (especially the US, Germany, India, South Africa, and South Korea); or are actively engaged in significant concrete democracy promotion outside their borders (admittedly with often mixed results). Almost all are key actors in the functioning of the international order as we know it.
The fact that the world’s eyes were on the French presidential elections in the past week is a clear case in point. The election of Marine Le Pen of the far-right Front National would not only have seriously threatened liberal democratic governance in France, it could have carved a large hole in the contiguous liberal democratic territory of Western Europe, set in train the end of the EU as we know it, brought an unprecedented reversal of the balance toward democratic states among the UN Security Council’s five permanent members, and cut against the type of open multilateralism in international affairs that powers the development of global constitutionalism.
However, Le Pen’s defeat may be a limited reprieve. It is outside the West that the longer-term threat to global constitutionalism might be found. Writing in 2016, for instance, Ted Piccone of the Brookings Institution suggested that the fate of the “liberal international order” hinges on a group of what he called “five rising democracies”—India, Brazil, South Africa, Turkey, and Indonesia.[4] While Piccone’s prognosis was quite positive (mirroring other rather rosy takes on the eclipse of the West[5]), since the book’s publication in February 2016 Turkey has taken a decidedly authoritarian direction (the narrowly passed 16 April referendum this year is seen by many as voting in a constitutional dictatorship[6]); Brazil has entered into serious democratic crisis (centred on impeachment of President Rousseff and its aftermath[7]); concerns are increasingly being raised about the democratic health and trajectories of India and South Africa under Prime Minister Modi and President Zuma;[8] and Jakarta’s recent gubernatorial elections have raised questions regarding rising sectarianism in a young democracy admired for its tolerance.[9]
Of course, decay in any democracy is a cause for serious concern,[10] and it also must be recognised that democracy is not dying worldwide—as Tom Carothers and Richard Youngs reminded us in a recent op-ed.[11] Yet, your columnist, as an Irishman, is keenly aware that not all democracies were created equal, in terms of symbolic, cultural, and geopolitical power. Decay in the world’s keystone democracies–however we decide who deserves the title–would deal a bigger blow to the global democratic project, and global constitutionalism, than decay elsewhere. It would not extinguish it, but, by tipping the balance away from the centrality of human rights, democracy and the rule of law, could leave it a much diminished force over time. At its simplest, any one instance of democratic decay in a keystone democracy further raises the risk of international relations degenerating into a game of naked power play rather than a structured ‘constitutional’ interaction with rights and law at its core. As Piccone puts it: “It is impossible…to imagine a better world without a solid foundation of democratic societies that respect human rights and practice tolerance and cooperation.”[12]
So yes, it is certainly right to say that the decay of the West does not necessarily sound a death knell for global constitutionalism, or the global democratic project. The truth is that, depending on developments in key democracies worldwide in the coming years, we may have a much bigger problem on our hands.
Suggested citation: Tom Gerald Daly, Democratic Decay in ‘Keystone’ Democracies: The Real Threat to Global Constitutionalism? Int’l J. Const. L., May 10, 2017, at: http://www.iconnectblog.com/2017/05/democratic-decay-in-keystone-democracies-the-real-threat-to-global-constitutionalism-i-connect-column/
[1] M Kumm, J Havercroft, J Dunoff and A Wiener, ‘Editorial: The end of ‘the West’ and the future of global constitutionalism’ (2017) 6(1) Global Constitutionalism 1.
[2] See e.g. LS Mills, ME Soulé and DF Doak, ‘The Keystone-Species Concept in Ecology and Conservation’ (1993) 43(4) BioScience 219.
[3] S Mainwaring and A Pérez-Liñán, ‘Democratic Breakdown and Survival’ (2013) 24(2) Journal of Democracy 123, 132–134.
[4] T Piccone, Five Rising Democracies and the Fate of the International Liberal Order (Brookings Institution Press, 2016).
[5] See, in particular, E Harrison, S Mitchell and S McLaughlin Mitchell, The Triumph of Democracy and the Eclipse of the West (Springer, 2013).
[6] See e.g. ‘Turkey’s president given new powers’ The Australian 17 April 2017 http://bit.ly/2olmDzd. See also the resolution and opinion of the Council of Europe’s Venice Commission at its annual plenary session of 10 March 2017, stating that the proposed constitutional amendments would represent a “dangerous step backwards” for democracy due to excessive empowerment of the president and “further weakening the already inadequate system of judicial oversight of the executive”: CDL-AD(2017)005-e Turkey – Opinion on the amendments to the Constitution adopted by the Grand National Assembly on 21 January 2017 and to be submitted to a National Referendum on 16 April 2017 (Venice, 10-11 March 2017) http://bit.ly/2n04vhN.
[7] See e.g. ‘M Milan, Oligarchical Restoration and Full Neoliberalism Reloaded: An Essay on the Roots of the Twin Crises and the 2016 Coup D’Etat in Brazil’ (2016) 5(9) Austral: Brazilian Journal of Strategy & International Relations 74.
[8] See e.g. A Stepan, ‘India, Sri Lanka, and the Majoritarian Danger’ (2015) 26(1) Journal of Democracy 128; R Jenkins, ‘India’s democracy: ill but not illiberal’ DemocracyPost 31 March 2017 http://wapo.st/2qN4W0C; and S Issacharoff, Fragile Democracies: Contested Power in the Era of Constitutional Courts (Cambridge University Press, 2015) 242, 268 (the latter speaking of “the peril of constitutional retreat” and the “risk of descent into the excesses associated with strong-arm rule”).
[9] See e.g. C Schott, ’Jakarta election a turning point for Indonesia’ Deutsche Welle 20 April 2017 http://bit.ly/2pMPQHA.
[10] It may be considered that decay can only truly happen in a democracy of sufficient maturity. While the author generally uses the term in this way, for the purpose of this column it has been used to apply to mature (e.g. US), consolidated (e.g. Brazil) and unconsolidated democracies (e.g. Indonesia) alike.
[11] See e.g. T Carothers and R Youngs, ‘Democracy is Not Dying’ Foreign Affairs 11 April 2017 http://ceip.org/2pelZs1.
[12] Piccone, Five Rising Democracies (n 8) x.
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