Blog of the International Journal of Constitutional Law

Egypt: Democratic Coup?

The ongoing situation in Egypt calls to mind Ozan Varol’s article in the Harvard International Law Journal on The Democratic Coup d’Etat, itself motivated in part by the 2011 coup against Mubarak.  Varol’s argument in a nutshell is that, simply, that there are coups and then there are coups.  US federal law treats them all of a piece in requiring a suspension of financial assistance when a “duly elected head of government” is deposed.  This position, Varol argues, neglects the fact that some coups are justifiable from a normative perspective.  Military intervention is almost always conducted in the name of saving democracy; Varol points out that sometimes this claim is not spurious.

Does Egypt count?  We first note that the term “coup” has not been used by the Obama administration, nor by Egypt’s Ambassador to the United States, who characterized events as “a popular uprising” rather than a coup. Varol follows a classic definition of a coup as occuring “when the military, or a section of the military, turns its coercive power against the apex of the state, establishes itself there, and the rest of the state takes its orders from the new regime.” By this definition, the Egyptian situation does not qualify:  the military has sworn in an interim government led by the Chief Justice. This may seem like splitting hairs, especially when the courts have been so aligned with the military during the transition period.  And it has been pointed out that the use of force to remove a democratically elected government sure looks, smells and sounds like a coup.

Another orienting idea is the right to resist unjust authority, the ancient idea that certain actions by government compel justified attempts to overthrow it.  As Mila Versteeg, Daniel Lansberg-Rodriguez and I have recently written, this idea was found in Ancient China, medieval Europe, and the social contract theory of the enlightenment (though not really in the Islamic tradition).  Is the Ambassador correct that President Morsi’s removal was a legitimate act of popular will?

The problem here is that the predicate has not been met. Most political theorists expect that the right of resistance is to be utilized only in extreme circumstances, when authority has become totally intolerable. A further requirement identified by political theorists is that that ordinary legal channels are no longer effective.  From this perspective, the actions of the Egyptian military seem premature. Morsi had exhibited a level of governmental incompetence, and the broader instincts of the Muslim Brotherhood were consistently toward a narrow majoritarian view of democratic governance.  But there was no indication they were going to suspend elections which could have removed them in due course.

At the end of the day, the only justification for the removal of the president must be utilitarian. The masses mobilized in Cairo and the supporters of Morsi may have clashed, leading to great loss of life and chaos.  Avoiding this potentiality is surely a good thing. But it is based on a counter-factual.


Update on July 5: The counter-protests by supporters of Morsi are now underway; they are quite large-scale and there have already been numerous deaths.  Obviously, the greater the toll at this stage, the less force for the utilitarian pro-coup position.


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