When is a Limp More than a Limp? Diagnosing Democratic Decay

—Tom Gerald Daly, Fellow, Melbourne Law School; Associate Director, Edinburgh Centre for Constitutional Law

Sometimes a limp is just a limp–arising from a debilitating yet isolated injury or infection that will soon heal. However, sometimes a limp can be indicative of a degenerative disease such as multiple sclerosis. Gaining a clear diagnosis and prognosis of such systemic conditions is a serious challenge: the person affected might experience a continual worsening or multiplication of symptoms, stabilisation, or even a reversal of the condition.[1]

Diagnosing democratic decay has been occupying my mind in recent months, as I attempt to fashion analytical tools to assess a decline in the quality of democracy in states worldwide, which falls short of a democratic breakdown. As a process in flux, and with an uncertain outcome, it is not an easy task to distinguish decay from a democratic crisis punctuating democratic rule without degrading it, or changes that alter the texture of democracy, but not its inherent nature.

In writing a forthcoming book chapter[2] and papers for recent conferences worldwide[3] I have slowly fleshed out my thumbnail definition of democratic decay–incremental degradation of the structures and substance of liberal constitutional democracy–as a fuller analytical framework to discuss developments in India, Turkey, the Philippines, Poland, Venezuela, Brazil, South Africa, Hungary, and the US. My aim has been to test whether democratic decay can provide added analytical value as an organising concept, to achieve an empirically grounded, context-sensitive approach to identifying and assessing democratic decay in any given state, and to test the viability of my initial selection of country case-studies. As I sit on a flight bound for Gdańsk–where I will spend a week discussing the Polish experience with one of its leading analysts, Tomasz Koncewicz, among others–I find myself reflecting on what I have learned in recent months.

First, the definition I have developed does appear to provide significant added value as an analytical tool. Each of the words in the thumbnail definition above has been carefully selected and carries significant weight, permitting a flexible multi-factor analysis. ‘Incremental’ speaks to a central distinction in scholarship on democratic breakdown between the ‘quick death’ of a coup d’état, invasion or other crisis, and the ‘slow death’ of successive authoritarian advances,[4] with a central focus on whether there is a discernible trajectory in a negative direction. ‘Degradation’ seeks to capture dynamic, linked, and often iterative processes of both a ‘structural’ deterioration of (through overt attacks or otherwise), and a cheapening and devaluing of, the ‘substance’ of democratic governance (with a particular focus on public faith in, and commitment to, democratic rule). ‘Liberal constitutional democracy’ is used to reflect discussion of the various elements of democracy as it is understood, how these elements have become tightly conceptually braided, and how different forms of democratic decay speak to fundamental contestation concerning democracy’s conceptual content–especially its minimum content–and unbalanced focus on one element to the detriment of the others. Discussing Brazil’s complex impeachment crisis and its context in Mexico City recently, it was a relief to hear leading Brazilian scholars agree that the framework captures a more rounded picture than is being achieved by existing analysis.[5]

Second, the analytical lenses we choose really matter. As I refine my conception of democratic decay, its boundaries have sharpened. Gone from the list above, for instance, are the Philippines and Turkey, which have never reached the minimal maturity of a ‘mainstream’ liberal constitutional democracy to be amenable to decay as I understand it. I have developed misgivings (as yet unresolved) about including the US where, despite serious and entirely legitimate concerns regarding the substance of democracy, the Trump administration’s ineffectiveness has significantly diluted its capacity to attack democratic structures, including the Constitution itself. Yet if we use populism as the analytical lens, for instance, all of these states (and other states such as Brexit Britain) are bunched together. Indeed, the increasing use of populism as a catch-all governing concept to assess developments worldwide is problematic: it is often ill-defined, to the point of being impossibly slippery; and it elides the complex interaction between populist dynamics and elite capture in many states (e.g. Hungary, South Africa, Brazil, Venezuela). It is certainly a useful concept, but it may leave us simply talking about all patients with a limp, not those for whom a limp is symptomatic of a specific wider problem.

Third, as Kim Lane Scheppele has observed at recent conferences, comparative constitutional lawyers can make a very real contribution in assessing whether democratic decay is affecting a given state.[6] They have the expertise and ability, through detailed and careful analysis, to reveal manipulation of law by would-be autocrats which appears perfectly fine on its face, and also to show how illiberal governments and leaders are increasingly borrowing tactics from one another in a sort of dark mirror of the liberal transnational legal order.[7] By carefully compiling the evidence of how law has been manipulated, step-by-step in one state, it becomes possible to guess where incipient manipulation in another state may be heading.

Fourth is that, the above notwithstanding, any one public lawyer alone faces stark limits in his or her diagnostic capacity. To provide the most defensible diagnosis of democratic decay requires intense collaboration, both cross-disciplinary (with political scientists natural allies here) and intra-disciplinary, between comparative lawyers interested in achieving a broader overarching analysis of patterns in multiple states and scholars from the affected states.

However, engagement with local scholars is not straightforward and requires vigilance by outsiders. The existence of democratic decay is often hotly contested. For instance, while many Polish scholars readily agree with the decay diagnosis,[8] others insist that the state is simply moving toward a traditional republican mode of government,[9] or has moved from legal constitutionalism to political constitutionalism (conveniently ignoring the fact that the express text of the Constitution clearly sets out a legal constitutionalist system).[10] Others have insisted to me that the system will self-correct after the next elections once the current government is booted out.[11] Rosier takes are not necessarily based on naïveté or distortion of the truth: as one Hungarian scholar recently confided to me, it can be simply a psychological wrench to admit that one’s system is no longer the democracy it once was.[12]

Fifth, and finally, this means that any diagnostic technique must be as clear, rigorous and objective as possible, while still making room for educated guesswork and subjective assessment based on the overall picture. While we cannot attempt to be prophets or psychics, neither should that mean that we give up or take refuge in platitudes (“it’s complicated and context-specific”!). We cannot tell where a democratic system will be in ten years’ time, or even two years’ time. We often cannot tell whether, at the outset at least, reforms are aimed at a ‘bad faith’ hollowing out of democratic rule, or a ‘good faith’ rebalancing or transformation of the system. What we can do is find better ways of amassing our evidence, analysing it, and building our repository of ‘past patients’ when looking for similar patterns. Diagnostic techniques for degenerative diseases may prove an interesting model to emulate.[13] Ultimately, by attempting a rigorous diagnosis of different states, sifting through commonalities and divergences, and carefully cataloguing our findings, we are making some meaningful progress.

Suggested citation: Tom Gerald Daly, When is a Limp More than a Limp? Diagnosing Democratic Decay, Int’l J. Const. L. Blog, July 12, 2017, at: http://www,iconnectblog.com/2017/07/when-is-a-limp-more-than-a-limp-diagnosing-democratic-decay/

[1] See e.g. National MS Society, ‘MS Symptoms’ http://bit.ly/1AUqjsQ.

[2] TG Daly, ‘Democratic Decay in 2016’ in International IDEA, Annual Review of Constitution Building: 2016 (International IDEA, 2017, forthcoming).

[3] These include ‘Public Law and the Puzzle of Democratic Decay in Brazil’ at the Law and Society International Meeting ‘Walls, Borders, and Bridges: Law and Society in an Inter-Connected World’, Mexico City, 22 June 2017 and ‘Preventing ANC Capture of South African Democracy: A Missed Opportunity for Other ‘Constitutional Courts’?’ at the I-CON Society annual conference ‘Courts, Power, Public Law’, Copenhagen, 6 July. Both papers are available on my Academia.edu profile at http://bit.ly/2u3IfX7. I also attended the Philippines Political Science Association (PPSA) annual conference, ‘Democratic Governance in the Vortex of Change’, Cebu, 11-12 May 2017.

[4] See e.g. See G O’Donnell, ‘Transitions, Continuities, and Paradoxes’ in S Mainwaring, G O’Donnell & J Valenzuela (eds), Issues in Democratic Consolidation: The New South American Democracies in Comparative Perspective (UNDP, 1992) 19, 33.

[5] See my conference paper, ‘Public Law and the Puzzle of Democratic Decay in Brazil’ (n 3). I am particularly grateful to Juliano Zaiden Benvindo for comments on the draft paper. It should be emphasised that some at the conference did not agree with the argument that Brazil is suffering democratic decay.

[6] Scheppele made the point particularly forcefully in her presentation ‘The Opportunism of Constitutional Populists’, I-CON Society annual conference, Panel 16: ‘Is Populist Constitutionalism the New Trend?’.

[7] The liberal ’transnational legal order’ is the term used at one of the LSA panels in Mexico City (’ Constitution-making as Transnational Legal Order II’) organised by the editors of a leading edited collection: TC Halliday & G Shaffer, Transnational Legal Orders (Cambridge University Press, 2015).

[8] See e.g. a recent Verfassungsblog symposium at Oxford University on 9 May 2017 on ‘The Polish Constitutional Crisis and Institutional Self-Defense’ http://bit.ly/2sFQMfl. Contributors included Tomasz Koncewicz, Tomasz Gizbert-Studnicki and Paul Blokker.

[9] See the response of Justice Lech Morawski of the Polish Constitutional Tribunal to the Verfassungsblog symposium: ‘A Critical Response’ 3 June 2017 http://bit.ly/2u3Mgv1. Justice Morawski was appointed under dubious circumstances by the sitting PiS government.

[10] I am grateful to Agnieszka Bień-Kacała and Tímea Drinóczi for this insight at their presentation ‘Recent systemic developments in Poland and Hungary at the Panel ‘The Role of Courts and (Il)liberal Democracy’ at the I-CON Society conference.

[11] This stems from a conversation with a Polish scholar (not one of the scholars cited above) at the I-CON Society conference.

[12] This stems from a conversation at the I-CON Society Conference.

[13] See e.g. National MS Society, ‘Diagnosing Multiple Sclerosis’ http://bit.ly/1p3Rkrx.