Contemplating the Future in the Era of Democratic Decay (I-CONnect Column)

—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.]

At times of profound and disorienting change it can be hard to contemplate the future. When we are “swimming through the historical moment”, as Tamim Ansary puts it,[1] the future becomes more amorphous, clouded, as though our eyes have grown cataracts. As a teenager in the 1990s the future seemed so clear to me – not its content, but its shape. Whatever it was going to be, it could only be better. I may be from the last (Western) generation to have this sense of certainty, coming of age at the height of the liberal consensus, deeply imbued with the faith that law, technocracy and liberal democracy were the troika pulling us to the end of history, with the sole remaining challenge to perfect this global project and proselytise to laggards.[2] For so many public lawyers today that worldview came to occupy all horizons of possible thought.

In the present era of democratic decay – the incremental degradation of the structures and substance of liberal constitutional democracy worldwide – what are the possible futures we can envisage, and why does this matter for public law? Faced with a bewildering news cycle, we tend to focus on the immediate future: Will Trump be impeached or resign?[3] With a crucial Constitutional Court judgment pending, when and how will Zuma be ousted in South Africa?[4] Will Japan’s increasingly autocratic premier Shinzō Abe manage to consolidate power by calling a snap election in October?[5] Might Poland’s Law and Justice (PiS) government lose the 2019 general election?[6] Medium-term questions are even harder to answer. In, say, five years’ time – 2022 – what will the world look like? What about ten years’ time? What will be the Trump presidency’s long-term legacy for the health of US constitutional democracy? If PiS loses power to a more democratically-minded administration, how to repair the constitutional damage wrought since 2015? What will a post-Zuma South Africa become? Will it prove difficult to reverse the Abe government’s significant stifling of press freedom?[7] What does Macron’s plummeting support mean for the future of centrist liberalism as a political force in France and Europe more widely?[8]

It might seem indulgent to engage in future-casting when the present offers so many pressing challenges. Public lawyers (and others) have quite rightly tended to focus on recent and ongoing systematic assaults on democratic structures in states worldwide, under the labels of “constitutional retrogression”,[9] “constitutional capture”[10] or “stealth authoritarianism”.[11] But this can lead – despite careful framing by key scholars – to the false impression that the problem is one government, one party, one president. It is just as important to reflect on the longer-term questions and the deep structural processes that have led to mushrooming support for anti-democratic political forces. The rise of Trump, Le Pen, PiS, Zuma and their ilk is merely the culmination of, or clearest symptom of, a long-creeping “constitutional rot”, as Jack Balkin calls it.[12]

More fundamentally, in turning to these questions it is crucial to fully acknowledge that the current global crisis of democracy is not merely a bump in the road or short-lived aberration. Even in the best-case scenario that democracy turns out to be resilient in most states and we see a sharp public swing away from the false promises of illiberal populists, nativists, and neo-fascists, we cannot approach this as a ‘course correction’ or a ‘return to normal’. There is no going back to the status quo ante. Repeat: there is no going back. Why does this bear repeating? Because there is a real danger that, if the worst of this global anti-democratic storm passes, we will just click back into our old habits, to business as usual, as though the crisis were nothing more than a bad dream.

The EU, for example, due in part to the defeat of populists in the French and Dutch elections this year (as well as improving economic fortunes), has found a new swagger that may be dampening its sense of urgency in tackling the anti-democratic governments of Poland and Hungary.[13] Some clear lessons are still falling on deaf ears. For instance, despite the clear failures of attempts at top-down, managed, judicialised control of democratic systems in various states worldwide, especially post-1989 democracies, we see the notion of ‘controlled’ democracy continuing to gain traction. The ius constitutionale commune narrative in Latin America – however well-meaning and sophisticated – is a case in point, tending as it does to present the Inter-American Court of Human Rights and ‘Inter-Americanised’ domestic courts as key forces for building and sustaining Latin American democracies.[14]

Public lawyers of all stripes bear a portion of responsibility for constructing the dominant narrative that vaunted legal and technical solutions to crucial governance and social questions while slowly allowing the messy, raucous voice of democracy to be stifled, contained, and circumvented, until it rebelled. We cannot go back to normal because our ‘normal’ was in so many ways an illusion. It was built, not on lies, but on profound misconceptions and no small degree of élitism and arrogance. The liberal consensus handed us greater power and influence, but we have been (or should have been) humbled by recent events and need to take this lesson in humility as a time to reflect, to re-think our assumptions. To learn the lessons of the recent past. To renew our approach. To replace “we fear the people” with at least “we listen to the people”.

What will be the new reality when the current upheavals settle into a new pattern? What do we salvage from the wreck of the liberal consensus? It is now that we need to start thinking about the future, not when the dust settles – however it settles.

Suggested citation: Tom Gerald Daly, Contemplating the Future in the Era of Democratic Decay, Int’l J. Const. L. Blog, Sept. 15, 2017, at: http://www.iconnectblog.com/2017/09/contemplating-the-future-in-the-era-of-democratic-decay-i-connect-column/

---

[1] T Ansary, Destiny Disrupted: A History of the World Through Islamic Eyes (Public Affairs, 2010) 222.

[2] This take is indebted to a ‘long read’ piece by Susy Hansen, ‘Unlearning the myth of American innocence’ The Guardian 8 August 2017 http://bit.ly/2vJJA6k.

[3] See e.g. J Le Miere, ‘Will Trump Resign? Odds of Trump Quitting before Impeachment Reach New High?’ Newsweek  21 August 2017 http://bit.ly/2v8rHuP.

[4] The Constitutional Court reserved judgment on 5 September in a case taken by the Economic Freedom Fighters (EFF) party seeking to initiate impeachment proceedings against Zuma: EFF and Other v The Speaker of the National Assembly and Another CCT76/17. The Court has not given a specific date for the issuance of a ruling.What happens next is unclear. See ‘S.Africa opposition in new bid to impeach Zuma’ Capital News 6 September 2017 http://bit.ly/2eZBGzQ.

[5] ‘Abe keeps up suspense over snap election’ Nikkei Asian Review 17 August 2017 http://s.nikkei.com/2vZgTDH.

[6] ‘Civic Platform with growing support’ The Warsaw Voice Online 21 August 2017 http://bit.ly/2j9daO1.

[7] In April 2017, the international NGO Reporters Without Borders ranked the nation at 72nd in the world – a stark decline from its No.11 place in 2010. J Mitchell, ‘‘Press Freedom in Contemporary Japan’: Persuasive and important but incomplete’ The Japan Times 6 May 2017 http://bit.ly/2wdwTNF. The article is a review of J Kingston (ed), Press Freedom in Contemporary Japan (Routledge, 2016).

[8] See e.g. Y Serhan, ‘Emmanuel Macron: Monsieur Unpopular’ The Atlantic 11 August 2017 http://theatln.tc/2gXaFKw.

[9] AZ Huq and T Ginsburg, ‘How to Lose a Constitutional Democracy’ UCLA Law Review, Vol. 65, 2018 (forthcoming). See the unpublished paper on SSRN (20 January 2017): http://bit.ly/2t7QXjP.

[10] Originally coined by Jan-Werner Müller. See, for example, the recent I-CONnect symposium on ‘Constitutional Capture in Israel’ on 20–26 August 2017 http://bit.ly/2xfWfMz. See also e.g. TT Koncewicz, ‘Living under the unconstitutional capture and hoping for the constitutional recapture’ Verfassungsblog 3 January 2017 http://bit.ly/2wMauun.

[11] O Varol ‘Stealth Authoritarianism’ (2015) 100 Iowa Law Review 1673.

[12] JM Balkin, ‘Constitutional Rot’ in CR Sunstein (ed), Can It Happen Here?: Authoritarianism in America (Harper Collins, 2018, forthcoming).

[13] Although some limited progress is being made (e.g. the European Commission is tabling the Poland issue before the  General Affairs grouping of the European Council on 25 September) the overall approach still appears dangerously slow and focused on ’dialogue’. See E Maurice, ‘EU ministers to discuss Polish situation again’ euobserver 6 September 2017 http://bit.ly/2xYVJ64. I am grateful to Kim Scheppele for bringing this development to my attention.

[14] See in particular A von Bogdandy, E Ferrer, M Morales and F Piovesan (eds), Transformative Constitutionalism in Latin America: A New Latin American Ius Commune (Oxford University Press, 2017, forthcoming).