Time to View Democratic Decay as a Unified Research Field?

—Tom Gerald Daly, Associate Director, Edinburgh Centre for Constitutional Law

Each passing month brings more warnings of global democratic decay, which we might loosely define as the incremental degradation of the structures and substance of liberal democracy, as distinct from a clear and rapid breakdown of democratic rule. September began with a speech by the UN High Commissioner for Human Rights, Zeid Ra’ad Al Hussein, excoriating populist leaders for ‘weaponising’ xenophobia and bigotry, and calling upon others to ‘counter this cross-border bonding of demagogues’.[1] Two days later, Thomas Carothers in a Foreign Policy op-ed discussed the ‘new pessimism’ gripping Washington’s democracy promotion efforts abroad.[2] In the past two weeks alone the Council of Europe’s Venice Commission made a second ‘rule of law’ visit to Poland, where constitutional crisis is acute;[3] the far-right AfD party made further electoral gains in Germany;[4] concerns have grown regarding President Magufuli’s stifling of media freedom in Tanzania;[5] and renewed attention was brought to rising intolerance in Modi’s India.[6]

Where are public lawyers in all of this? Much like sovereign debt was a niche subject for economists until the global economic crisis hit in 2008, the subject of democratic decay used to be a niche preoccupation in public law–the preserve of legal historians and those analysing troubled states; focusing on, say, dissolution of political parties in post-war Germany, or more recently, in Turkey and Israel,[7] the ‘militant democracy’ doctrine, or the US founding fathers’ concerns regarding the (hypothetical) threat of tyranny. It lay at the periphery of a dominant focus on progress and fine-tuning our models of law-based self-government.

However, in the present decade, public lawyers have become increasingly preoccupied with the subject of democratic decay as it has gathered pace worldwide.

Partly this is because various contemporary regimes have ‘weaponised’ public law to hollow out democratic rule–since David Landau coined the term ‘abusive constitutionalism’ in 2013[8] we have seen others speak of ‘abusive impeachment’ in Brazil,[9] or ‘de-constitutionalism’ in Turkey,[10] for example. Partly, it is because law is also inevitably seen as an essential tool in the pushback against democratic decay, given that law has assumed an ever greater role in governance since the 1970s–reaching its apotheosis in the (now crumbling) post-1989 ‘liberal consensus’.[11] Zeid, for instance, insisted in his September speech: “Ultimately, it is the law that will safeguard our societies”.

Public law may be central to this conversation, but it is a mix of lawyers, political scientists, sociologists, political philosophers, international relations scholars and policymakers analysing the multiple challenges facing liberal democracy as a political model,[12] detailing democratic backsliding in specific states such as Poland,[13] anatomising new forms of autocracy, such as Hungary’s ‘Mafia state’,[14] focusing anew on the concept of ‘militant democracy’,[15] and examining not only the role of courts and other mechanisms as bulwarks against democratic degradation, but the wider relationship between growing illiberalism, the rule of law, and global governance.[16]

In particular, a rapidly expanding literature is shedding light on the role of international organisations worldwide in addressing democratic decay.[17] This month, special collections on the EU’s efforts to address the issue within its borders, and exploring ways to enhance those efforts, have appeared in the Journal of Common Market Studies[18] and the European Journal of Public Policy.[19] In the policy sphere, a recent discussion paper from International IDEA,[20] analysing mechanisms across the EU, OAS and African Union to ‘protect constitutionalism’, concludes that, while often providing useful interventions against clear ruptures such as coups d’état, they are at their least effective in the face of subtler democratic decay.

Although providing highly valuable analysis and insight, at present, these diverse enquiries are developing in isolated corners of different disciplines, research fields and policy areas, with minimal linkages. It is high time to start approaching these distinct literatures as part of a common whole. Not a fully coherent research field perhaps, but a sort of familienaufstellung–a ‘family constellation’ of related research strands that are all pushing towards the same aim: greater understanding of the challenge democratic decay presents; how public law often lies at its heart; and how public law (within a wider policy and political context) can be employed to counter it or at least mitigate its worst excesses. We need enhanced communication between scholars and policymakers struggling with these questions in different ways, and we need to start viewing public law itself as a system in identifying its strengths, weaknesses and possibly as-yet-untapped potential to counter democratic decay. That said, a more coherent take could also be a guard against excessive focus on law. Recent counsel by Fiona de Londras against the ‘vanity of lawyers’[21] should be heard as a call to humility by all: law is not always the answer. Humility, then, but not helplessness. Time for us all to roll up our sleeves.

Suggested Citation: Tom Gerald Daly, Time to View Democratic Decay as a Unified Research Field?, Int’l J. Const. L. Blog, Sept. 30, 2016, at: http://www.iconnectblog.com/2016/09/time-to-view-democratic-decay-as-a-unified-research-field

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[1] Speech, The Hague, 6 September. See <https://www.un.org/apps/news/story.asp?NewsID=54862>.

[2] T Carothers, ‘Is the United States Giving Up on Supporting Democracy Abroad?’ Op-ed Foreign Policy 8 September 2016. <http://foreignpolicy.com/2016/09/08/is-the-united-states-giving-up-on-supporting-democracy-abroad/>.

[3] M Scislowska, ‘European rights body returns to Poland to review rule of law’ Associated Press 12 September 2016 <http://ourmidland.com/news/world/article/European-rights-body-checks-on-Poland-s-rule-of-9216881.php>.

[4] D Schwarzer, ’Political volatility in Germany intensifies with AfD’s gains’ Financial Times 19 September 2016 <https://www.ft.com/content/a2b99f84-7e41-11e6-8e50-8ec15fb462f4>.

[5] ‘Tanzania: ‘Dark Era’ Looms for the Media’ The Citizen 21 September 2016 <http://allafrica.com/stories/201609210692.html>.

[6] ’Intolerance in the time of Modi’ PEN International 19 September 2016 <http://www.ifex.org/india/2016/09/19/stifling_dissent/>.

[7] See e.g. P Franz, ‘Unconstitutional and Outlawed Political Parties: A German-American Comparison’ (1982) 5(1) Boston College International and Comparative Law Review 51; D Kogacioğlu, ‘Progress, Unity, and Democracy: Dissolving Political Parties in Turkey’ (2004) 38 Law & Society Review 433; and R Cohen-Almagor, ‘Disqualification of Political Parties in Israel: 1988-1996’ (1997) 11 Emory International Law Review 67.

[8] D Landau, ‘Abusive Constitutionalism’ (2013) 47 UC Davis Law Review 189.

[9] J Zaiden Benvindo, ‘Abusive Impeachment? Brazilian Political Turmoil and the Judicialization of Mega- Politics’ Int’l. J. Const. L. Blog 23 April 2016 <http://www.iconnectblog.com/2016/04/abusive-impeachment-brazilian-political-turmoil-and-the-judicialization-of-mega-politics/>.

[10] A Acar ‘De-constitutionalism” in Turkey?’ Int’l. J. Const. L. Blog 19 May 2016 <http://www.iconnectblog. com/2016/05/deconstitutionalism-in-turkey/#comment-377978>.

[11] See e.g. I Krastev, ‘The Strange Death of the Liberal Consensus’ (2007) 18(4) Journal of Democracy 56; and more recently, G Simpson, ‘The End of the End of History: Some Epitaphs for Liberalism’ (2015) 15(1) Baltic Yearbook of International Law

[12] See e.g. Y Mounk and R Foa, ‘The Danger of Deconsolidation: The Democratic Disconnect’ (2016) 27(3) Journal of Democracy 5; L Diamond, ‘Facing Up to the Democratic Recession’ (2015) 26(1) Journal of Democracy 141; T Carothers and O Samet-Marram, The New Global Marketplace of Political Change (Carnegie Endowment for International Peace, 2015);; and a forthcoming book by Yascha Mounk (under contract with Harvard University Press), The People Versus Democracy: The Rise of Undemocratic Liberalism and the Threat of Illiberal Democracy.

[13] W Sadurski and M Steinbeis, ‘What is Going on in Poland is an Attack against Democracy’ Verfassungblog 15 July 2016 <http://verfassungsblog.de/what-is-going-on-in-poland-is-an-attack-against-democracy/>.

[14] See e.g. B Magyar, Post-Communist Mafia State. The Case of Hungary (CEU Press, 2016).

[15] M Thiel (ed), The Militant Democracy Principle in Modern Democracies (Routledge, 2016).

[16] See e.g. PJ Yap, ‘The conundrum of unconstitutional constitutional amendments’ (2015) 4(1) Global Constitutionalism 114; J Letnar Černič, A Glass Half Empty? Execution of Judgments of the European Court of Human Rights in Central and Eastern Europe (2015) 15(1) Baltic Yearbook of International Law 285; L-M Crăciunean, ‘“Transplanting” Democracy and Human Rights in a Post-communist Country: Some Comments on the Role of the Venice Commission’s Opinions with Respect to Romania’ (2015) 15(1) Baltic Yearbook of International Law 303.

[17] See, in particular, A Von Bogdandy and P Sonnevend (eds), Constitutional Crisis in the European Constitutional Area: Theory, Law and Politics in Hungary and Romania (Bloomsbury Publishing, 2015); J Heine and B Weiffen, 21st Century Democracy Promotion in the Americas: Standing Up for the Polity (Routledge, 2014); D Soria Luján, ‘Las democracias con libertades disminuidas en Latinoamérica en el siglo XXI y la Carta Democrática Interamericana: ¿Dos modelos de democracia en la región?’ (2015) 75 Derecho PUCP 57; and C Manga Fombad, ‘Strengthening constitutional order and upholding the rule of law in Central Africa: Reversing the descent towards symbolic constitutionalism’ (2014) 14(2) African Human Rights Law Journal 412. See also a forthcoming edited collection: W Schröder (ed), Strengthening the Rule of Law in Europe. From a Common Concept to Mechanisms of implementation (Hart Publishing, 2016).

[18] See D Kochenov, A Magen and L Pech, ‘Introduction: The Great Rule of Law Debate in the EU’ (2016) 54(5) Journal of Common Market Studies 1045 <http://onlinelibrary.wiley.com/doi/10.1111/jcms.v54.5/issuetoc>.

[19] R Daniel Kelemen and Michael Blauberger, ’Introducing the debate: European Union safeguards against member states’ democratic backsliding’ (2016) Journal of European Public Policy <http://www.tandfonline.com/doi/full/10.1080/13501763.2016.1229356?scroll=top&needAccess=true>.

[20] International IDEA Discussion Paper 17/2016, The Role of Regional Organizations in the Protection of Constitutionalism (2016, author: Micha Wiebusch).

[21] F de Londras, ’’Abandoning the Vanity of Lawyers’: Some Advice for New Law PhDs’ <https://fionadelondras.com/2015/10/28/abandoning-the-vanity-of-lawyers-some-advice-for-new-law-phds/>.