—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 a recent I-CONnect blog post of 18 February,[1] Mikołaj Barczentewicz referred to developments in 1950s South Africa to assess the threat of a “looming split” in the Polish constitutional order stemming from the potential for resistance by lower courts to the judgments of the Polish Constitutional Tribunal, which has been “captured” by the ruling Law and Justice (PiS) party in the context of ongoing democratic decay – a phenomenon which I have been loosely defining as the incremental degradation of the structures and substance of liberal constitutional democracy.[2] Four days later, my fellow I-CONnect columnist Asli Bâli wrote a compelling piece on “comparative law in the Age of Trump.”[3] Both posts raise two key questions: how is democratic decay worldwide expanding the frontiers of comparative law? And just how useful is comparative analysis in furthering our understanding of this phenomenon?
Comparative law―the ‘C word’, as Ran Hirschl so memorably calls it[4]―has clearly acquired a new urgency in the current climate. For those of us seeking a broad global perspective on democratic decay, it means delving into the constitutional systems of states as diverse as Hungary, Brazil, Poland, the Philippines, the Netherlands, South Africa–and, in more recent times, the US. Comparative enquiry is, of course, perennially bedevilled by the question of comparing like with like, and whether we can ever fully understand the inner workings of another system from our own vantage point. To some extent, we are faced with the same old practical questions, such as the capacity to speak the language of the countries under analysis–for Anglophones in particular it is harder to get a handle on the detail of systems outside the Anglosphere. We rely heavily on Polish and Hungarian scholars, for instance, to convey the reality of democratic decay in those states, and the role public law plays as both bulwark and catalyst of such decay.[5] The threat of decay is also shining a light on venerable constitutional systems that are often overlooked: we rely on Dutch constitutional scholars, for example, to assess whether Geert Wilders presents a real threat to democracy in the Netherlands.[6]
However, the context of democratic decay also raises an additional suite of challenges for meaningful comparative analysis. In particular, the inordinately rapid pace of developments in states worldwide means that we are not comparing relatively static and stable systems, but rather, systems in a state of profound flux. In addition, unlike the tortuous 1990s process of accessing material, described by Ran Hirschl,[7] we now face a deluge of information that is truly daunting (as any daily Twitter user will appreciate), as well as the growing problem of misinformation and highly tendentious analysis. For instance, scholarship has become so politicized in Hungary that any bibliography of public law needs a “health warning” flagging the political proclivities of each author.[8]
This matters, because democratic decay is pushing us from a long-held view of comparative constitutional analysis as a choice to a new reality where it is becoming a necessity. Decay, by presenting a novel and multifaceted challenge for democratic governance in specific states, requires scholars, policymakers, and institutions such as courts to look outside their own systems for guidance. In the US, for example, the long debate that has raged on the legitimacy and utility of comparative law in interpreting the Constitution can be expected to mutate as governance under the Trump administration continues to leave analysts scrambling for ways to understand the new dispensation. So far, many have opted for “time travel,” looking back to the Nixon era, the Federalist Papers, or even as far back as Cicero for insight.[9] There has not yet been a strong or systematic push, particularly among public lawyers, for “space travel”; i.e. looking abroad for useful comparators.[10] Yet, we cannot find full answers to the Trump crisis within the four corners of American constitutional law (or political science, or political philosophy).
In the US the strong sense of American exceptionalism in academic, policy, and legal circles means that many will question whether there is really anything to be gained by analysing democratic decay in other countries, especially younger democracies such as Brazil or Poland. However, it appears that valuable lessons might be learned from analysis of democratic decay in different states, regardless of the democratic system’s vintage. For instance, while remaining alert to the differences in context, analytical frameworks developed in the Philippines can be useful to better understand contemporary developments in the US; particularly the Trump-like form of “aconstitutional governance” under President Duterte.[11] The message from leading Polish academics such as Tomasz Koncewicz, stressing that Polish democracy cannot be saved without an “awakening” of the general public,[12] provides a strong warning to those in the US who might place too much faith in state institutions such as the courts, a potential special prosecutor, or legislative committees to counter Trump’s excesses. Of course, a rise in comparative analysis might not be immediately obvious: in the US Supreme Court, for instance, we may we see the evolution of a form of Taiwanese-style[13] “crypto-comparativism,” where comparative material is extensively used, but not cited. (Strangely, this option seemed more palatable to the late Justice Scalia than a more open approach.[14])
Although public lawyers in most other states undergoing democratic decay have a more reflexive tendency toward comparative analysis than the US academy, this is evidently not just an American issue. For instance, comparative analysis is sorely lacking in the European Union academic and policy arenas, in a context where EU lawyers and policymakers show little knowledge of (or even interest in) how other international organisations address democratic decay and crises.[15] Yet, by way of example, it is only by seeing the nimbleness of the Commonwealth Ministerial Action Group (CMAG)–comprised of eight foreign ministers from across the Commonwealth[16]–that we can truly recognise just how lumbering the multi-stage and multi-actor EU Article 7 process (for sanctioning states for breaches of core EU values) has become. The Commonwealth approach, which is expressly political and based on “stigmatizing” states,[17] also leads us to question basic assumptions underlying the EU approach, which insists on a generally technocratic and legalistic approach, and evinces a strong fear of stigmatising states.[18]
In short, democratic decay may yet make comparativists of us all, and I fully agree with Asli Bâli’s view that the most pressing question in comparative law and politics right now is understanding “the mechanisms by which democracy gives way to illiberal governance and electoral authoritarianism.” However, if we are to pursue this question effectively we need to construct rigorous analytical and methodological frameworks, which seek to maximize the utility of comparative analysis while recognising and identifying its clear limits. Otherwise, comparison can only hinder, rather than help, our search for a keener understanding of, and employment of meaningful bulwarks against, democratic decay.
Suggested citation: Tom Gerald Daly, The “C word”: Democratic Decay and the New Frontiers of Comparative Law, Int’l J. Const. L. Blog, Mar. 8, 2017, at: http://www.iconnectblog.com/2017/03/the-c-word-democratic-decay-and-the-new-frontiers-of-comparative-law-i-connect-column/
[1] M Barczentewicz, ‘On the Looming Split in the Polish Constitutional Order: Harris v Dönges in Central Europe?’ Int’l J. Const. L. Blog 18 February 2017 www.iconnectblog.com/2017/02/Polish-looming-split.
[2] See various blog posts by the author on the i-CONnect blog, most recently his first i-CONnect column, ‘Enough Complacency: Fighting Democratic Decay in 2017’ Int’l J. Const. L. Blog 12 January 2017 http://www.iconnectblog.com/2017/01/enough-complacency-fighting-democratic-decay-in-2017-i-connect-column/.
[3] A Bâli, ’Comparative Law in the Age of Trump’ Int’l J. Const. L. Blog 22 February 2017 http://www.iconnectblog.com/2017/02/comparative-law-in-the-age-of-trump-i-connect-column/.
[4] See ‘Introduction: The C Word’ in R Hirschl, Comparative Matters: The Renaissance of Comparative Constitutional Law (Oxford University Press, 2014)
[5] See, for instance, work by scholars including Wojciech Sadurski, Tomasz Tadeusz Koncewicz, Gábor Halmai, and Tímea Drinóczi. Of course, rare non-Hungarian scholars such as Kim Lane Scheppele have also become experts on that system.
[6] See PJ de Waerdt, ‘Wilders vs. the Dutch Constitution: Constitutional Protection against Discriminatory Policies’ VerfBlog 2 March 2017 http://verfassungsblog.de/wilders-vs-the-dutch-constitution-constitutional-protection-against-discriminatory-policies/.
[7] Hirschl, Comparative Matters (n 4) 1–2.
[8] I am grateful to Tímea Drinóczi for this insight.
[9] See e.g. KT Walsh, ‘Trump is being compared to Nixon’ US News 21 February 2017 https://www.usnews.com/news/ken-walshs-washington/articles/2017-02-21/donald-trump-is-being-compared-to-richard-nixon, N Schlueter, ‘The Politics of Passion: A Lesson from The Federalist Papers’ Public Discourse 25 February 2016 http://www.thepublicdiscourse.com/2016/02/16524/; and D Allen, ‘Cicero used to be boring. With Trump around, he’s breathtaking’ The Washington Post 4 January 2017 https://www.washingtonpost.com/opinions/cicero-used-to-be-boring-with-trump-around-hes-breathtaking/2017/01/04/02043c1e-d2a3-11e6-9cb0-54ab630851e8_story.html?utm_term=.ed059dd17d0e.
[10] It seems fair to say that those in comparative politics have a head start on public lawyers in this regard: see e.g. RF Inglehart and P Norris, ‘Trump, Brexit, and the rise of Populism: Economic have-nots and cultural backlash’ Harvard Kennedy School Faculty Research Working Paper Series, August 2016.
[11] See, in particular, work by Dante Gatmaytan: ‘Checking Judicial Review: The President’s Totalitarian Temptation’ (2015) 89(1) Philippine Law Journal 31; and ‘Can Constitutionalism Constrain Constitutional Change?’ (2010) 3(1) Northwestern Interdisciplinary Law Review 22.
[12] ‘Of constitutional capture, alienating constitutionalism and constitutional fidelity. Quo vadis Poland… and Europe?’, presentation at the event ‘Oversight of the Rule of Law in the European Union: Opportunities and Challenges’, British Institute of International and Comparative Law (BIICL), 16 January 2017.
[13] David Law and Wen-Chen Chang have analysed the extensive, but often uncited, use of foreign judgments by the Taiwanese Constitutional Court: DS Law and W-C Chang, ‘The Limits of Global Judicial Dialogue’ (2011) 86 Washington Law Review 523, 558ff.
[14] See S Choudhry, ‘Migration as a new metaphor in comparative constitutional law’ in S Choudhry (ed), The Migration of Constitutional Ideas (Cambridge University Press, 2006) 4, where he quotes Scalia as saying judges should read foreign judgments: ‘indulge your curiosity! Just don’t put it in your opinions’.
[15] See, for instance, an otherwise excellent recent collection, which does not engage in any comparative analysis of other international organisations: C Closa & D Kochenov (eds), Reinforcing Rule of Law Oversight in the European Union (Cambridge University Press, 2016).
[16] See e.g. R Colville, ‘A Place to Stand: The Problems and Potential of the Commonwealth Ministerial Action Group’ (2004) 93(375) The Round Table 343.
[17] This is not to say that the Commonwealth system is preferable or particularly effective. It is simply to note the important fact that the organisation has taken a starkly different approach to the EU.
[18] This is clear from the literature, including the edited collection cited at (n 15), and was underscored in Carlos de Closa’s presentation on possible additional rule of law oversight mechanisms at the BIICL event on 16 January (n 12 above).
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