Enough Complacency: Fighting Democratic Decay in 2017 (I-CONnect Column)

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

[Editor’s note: This is the inaugural I-CONnect column — a new column will appear once every two weeks.  The idea of the columns is to provide the blog with regular contributors who have a distinctive voice and unique perspective on public law. Columns, while scholarly in accordance with the tone of the blog and about the same length as a normal blog post, will be a bit more “op-ed” in nature than standard posts. For more information and for a list of the four columnists for 2017, see here.]

The philosopher Derek Parfit offers an interesting thought experiment on transformation:

Suppose that a scientist were to begin replacing your cells, one by one, with those of Greta Garbo at the age of thirty. At the beginning of the experiment, the recipient of the cells would clearly be you, and at the end it would clearly be Garbo, but what about in the middle? It seems implausible to suggest that you could draw a line between the two—that any single cell could make all the difference between you and not-you. (…) There is no simple answer—it is a matter of degrees.[1]

So it is with democratic decay. As opposed to, say, an abrupt halt to democratic governance through a coup d’état or foreign occupation, it is the incremental nature of decay that renders it so insidious. Bit by bit, not only the structures of democratic governance but also the substance, the animating spirit, of a democratic political community are eroded, chipped away, sapped of their vitality. Slowly, the cellular structure of a liberal constitutional democracy morphs into a non-democratic form,[2] with the potential for descent into ‘harder’ authoritarianism–yet there is rarely any one flash point that galvanizes remedial action.

That the precise point between democracy and not-democracy can be impossible to discern leaves room for a dangerous level of complacency. A key strain of complacency, at its strongest in successful long-established democracies, is a firm belief in the resilience of democratic constitutional structures to withstand negative change and crisis. The overcoming of previous challenges (think World War II Britain, or the US in the McCarthy era) breeds the dangerous conviction that a democracy can muddle through any crisis–a ‘confidence trap’ that can cloud full appreciation of serious threats to democratic rule.[3]

A similar belief in muddling through appears to underlie the European Commission’s abject and ongoing failure to trigger Article 7 of the Treaty on European Union (TEU) against the Hungarian and Polish governments for increasingly clear violation of the core values of the EU (including democracy, the rule of law, and respect for human rights)–violations that genuinely threaten the Union’s defining identity as a community of democratic states. As Laurent Pech and Kim Lane Scheppele recently observed regarding the acute Polish crisis: “Any aspiring demagogue with an authoritarian streak will conclude from the EU’s latest failure to do anything meaningful against Polish authorities that you can brutally undermine the rule of law in the EU and expect no response until you have already consolidated all power in very few hands.”[4]

Even among those who evince greater appreciation of the threat of democratic decay all around us, and who have pushed innovative responses, there is still a risk of merely tinkering with the formulae that have been failing badly in countering this threat to date. For instance, proposals from the European Parliament, European Council, and academics for additional forms of committee-based ‘rule of law’ review of EU Member States[5] risk replicating the very limited impact of existing forms of review (by the European Commission and the Council of Europe’s Venice Commission), and even risk cutting across these bodies’ efforts–especially the farcically toothless ‘dialogue’ approach of the Council.[6]

We need a recognition of the limits of this approach, the limits of law, and acknowledgement that intervention must resonate with the wider public, not just with politicians, lawyers, rights activists, and policy wonks. For instance, has anyone considered the appointment of ‘democracy ambassadors’, modelled on the UN’s Goodwill Ambassadors? Surely a New Year’s press conference with European Commission Vice-President Frans Timmermans and, say, Marion Cotillard would garner more public attention to this era-defining crisis than a speech rather quietly released by Timmermans to the press on one of the last days of 2016?[7] Just a thought.

This complacency, in all its forms, cannot continue. We are quickly arriving at the point where negative alteration of the fundamental DNA of our democracies is becoming undeniable, even in states that once seemed immune. That the US House of Representatives introduced rules in early January to stymie protests from the democratic opposition on the House floor[8]–a move echoing a similar measure in Hungary found to be in violation of the European Convention on Human Rights (ECHR)[9]–is alarming, as are arguments that North Carolina ranks alongside Cuba on some measures of electoral democracy.[10] That the UK Prime Minister has renewed plans to withdraw from the ECHR[11]–which will certainly embolden demagogues across Europe and threatens to bring down an entire pan-regional system dedicated to upholding rights and democratic governance[12]–is statecraft as constitutional vandalism, ripping at structures that present one of the proudest legacies of the UK.[13] That Marine Le Pen and Geert Wilders are riding high in the polls so close to the French and Dutch elections this year compounds the threat.[14]

Even if we were to accept the debatable view that states suffering clear democratic decay, such as Hungary and Poland (or Brazil or South Africa, for that matter), simply did not get democracy ‘right’ in the first place,[15] any assumption that long-standing democracies are somehow special smacks not just of complacency but of constitutional and cultural arrogance. While there is nothing to be gained from unhelpful panic, or from facile or superficial comparisons–this is not the 1930s, Trump is not a fascist,[16] and the UK is not Poland–populists are operating from the same playbook in both young and old democracies, and there is real truth in the idea of a developing ‘populist international’ linking illiberal leaders worldwide.[17]

Martin Luther King once spoke of “the fierce urgency of now”.[18] Our New Year’s resolution, both public lawyers and policymakers alike, must be to combat complacency with a fierce, imaginative, creative, clear-eyed, and hard-headed urgency. We have nothing to lose by adopting a precautionary posture, or by seeing fragility where others see resilience. Indeed, failing to act and adopting a ‘wait and see’ attitude is to court disaster.

In 2017 it is time to wake up and leave complacency behind.

Suggested citation: Tom Gerald Daly, Enough Complacency: Fighting Democratic Decay in 2017, Int’l J. Const. L. Blog, Jan. 10, 2017, at: http://www.iconnectblog.com/2017/01/enough-complacency-fighting-democratic-decay-in-2017-iconnect-column/.

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[1] This text is from an interesting review of Parfit’s work, see  L MacFarquhar, ‘How to Be Good’ The New Yorker 5 September 2011 http://www.newyorker.com/magazine/2011/09/05/how-to-be-good?currentPage=all. The original work is D Parfit, Reasons and Persons (Oxford University Press, 1984).

[2] What we call these less democratic forms is the subject of debate, and depends on the result – the author agrees, for instance, with the argument that Poland and Hungary should be called ‘majoritarian autocracies’ rather than ‘illiberal democracies’. See L Pech and KL Scheppele, ‘Poland and the European Commission, Part II: Hearing the Siren Song of the Rule of Law’ 6 January 2017 http://verfassungsblog.de/poland-and-the-european-commission-part-ii-hearing-the-siren-song-of-the-rule-of-law/.

[3] See D Runciman, The Confidence Trap: A History of Democracy in Criris from World War I (Princeton University Press, 2015).

[4] L Pech and KL Scheppele, ‘Poland and the European Commission, Part I: A Dialogue of the Deaf?’ Verfassungsblog 3 January 2017 http://verfassungsblog.de/poland-and-the-european-commission-part-i-a-dialogue-of-the-deaf/.

[5] See European Parliament, ‘An EU mechanism on democracy, the rule of law and fundamental rights’ 27 October 2016 http://www.europarl.europa.eu/thinktank/en/document.html?reference=EPRS_IDA%282016%29579328; and P Bárd, S Carrera, E Guild and D Kochenov, ‘An EU mechanism on Democracy, the Rule of Law and Fundamental Rights’ CEPS Paper in Liberty and Security No.91 / April 2016 https://www.ceps.eu/system/files/LSE%20No%2091%20EU%20Mechanism%20for%20Democracy.pdf.

[6] The European Council’s proposal is found in a press release from December 2014: Council of the EU, Press Release No. 16936/14, 3362nd Council meeting, General Affairs, Brussels, 16 December 2014, pp. 20-21 http://data.consilium.europa.eu/doc/document/ST-16936-2014-INIT/en/pdf. See also D Kochenov and L Pech, ‘Monitoring and Enforcement of the Rule of Law in the EU: Rhetoric and Reality (2015) 11(3) European Constitutional Law Review 512.

[7] Speech, ‘Let us reclaim our future in 2017’ 30 December 2017. English-language text available at http://www.treffpunkteuropa.de/gastbeitrag-von-frans-timmermans-fordern-wir-2017-unsere-zukunft-zuruck.

[8] ‘Republicans against free speech pass laws to prevent Congressional protests on House floor’ Liberal Mountain 5 January 2017 http://www.liberalmountain.com/us-politics/house-passes-rule-to-prevent-lawmakers-to-protest-on-floor. I am indebted to Kim Lane Scheppele for bringing this measure to my attention, and for sparking the idea for this column.

[9] Karácsony and Others v. Hungary, Application Nos. 42461/13 and 44357/13 (17 May 2016). Available at http://hudoc.echr.coe.int/eng#{“fulltext”:[“Karácsony”],”documentcollectionid2″:[“GRANDCHAMBER”,”CHAMBER”],”itemid”:[“001-162831”]}.

[10] A Reynolds, ‘North Carolina is no longer classified as a democracy’ The News & Observer 22 December 2016 http://www.newsobserver.com/opinion/op-ed/article122593759.html. Of course, these claims are open to debate, but it is the very fact that strong questions are arising that is disturbing.

[11] W Worley, ‘Theresa May ‘will campaign to leave the European Convention on Human Rights in 2020 election’’ The Independent 30 December 2016 http://www.independent.co.uk/news/uk/politics/theresa-may-campaign-leave-european-convention-on-human-rights-2020-general-election-brexit-a7499951.html.

[12] See a forthcoming policy paper by the author and Tobias Lock, Legal Implications of Brexit and the British Bill of Rights (Edinburgh Law School and Bingham Centre for the Rule of Law), which is the outcome of a high-level meeting held at Edinburgh Law School on 27 October 2016.

[13] See also D Grieve, ‘Can a Bill of Rights do better than the Human Rights Act?’ (2016) Public Law 223, 234.

[14] See ‘France, Germany and the Netherlands: The elections that could derail the EU in 2017’ France24 30 December 2016 http://www.france24.com/en/20161230-eu-elections-2017-le-pen-fillon-wilders-immigration-france-germany-netherlands.

[15] See, e.g. S Hanley and J Dawson, ‘Poland Was Never as Democratic as It Looked’ Foreign Policy 3 January 2017 http://foreignpolicy.com/2017/01/03/poland-was-never-as-democratic-as-it-looked-law-and-justice-hungary-orban/.

[16] S Berman, ‘Donald Trump isn’t a fascist’ Vox 3 January 2017 http://www.vox.com/the-big-idea/2017/1/3/14154300/fascist-populist-trump-democracy.

[17] ‘Trump is a Threat to the West as We Know It, Even if He Loses’ Washington Post/Slate 4 November 2016 http://www.anneapplebaum.com/2016/11/04/trump-is-a-threat-to-the-west-as-we-know-it-even-if-he-loses/. This is not to say that populist are the only threat to democratic governance worldwide; as seen in Brazil, for instance, democratic decay can be driven by élites with limited popular support.

[18] See e.g. M Thomas, ‘“The Fierce Urgency Of Now” – Remembering Martin Luther King’ Huffington Post 27 August 2013 http://www.huffingtonpost.com/marlo-thomas/the-fierce-urgency-of-now_1_b_3805600.html.