Democratic Decay Research Articles

In Defense of A Mandatory Public Service Requirement

AbstractThis paper defends mandatory national service as a response to democratic decay. Because democracy cannot be maintained by laws and incentives alone, citizens must care about the quality and attitudes of their society's members. In an age of increasing segregation and conflict on the basis of class and race, national service can bring citizens from different walks of life together to interact cooperatively on social problems. It offers a form of ‘forced solidarity’. The final sections of the paper consider objections to this proposal.

Absurda lex, sed lex? Public value and the decay of the Rule of Law: A conceptual perspective

The Rule of Law serves, under a broadly accepted notion of justice, the enforcement of property rights and a relative predictability of citizen affairs, i.e. it fosters Public Value. However, it is subject to risks that materialise in weakened institutions, uncertainty and transaction costs. The connection between Public Value and the Rule of Law becomes salient when understanding how the latter degenerates at the expense of the former. This article provides two theoretical frameworks that explain the connection between the two concepts, as well as three manifestations of the Rule of Law’s decay. These comprise the excess of legal-formalism, the excess of discretion in enforcement and the instrumentalisation of the law, i.e. when it embodies injustice. Although they vary depending on the legal system, these aspects build a conceptual body that illustrates how contingent legal outcomes affect society, developing Daly’s (2019) concept of democratic decay in the economics and business literature.

When Should International Courts Intervene? How Populism, Democratic Decay and Crisis of Liberal Internationalism Complicate Things

Abstract Shai Dothan’s book International Judicial Review aims to refute criticism which stresses international courts’ (ICs) lack of legitimacy, epistemic inferiority, suffocation of public deliberation, susceptibility to capture and production of bad outcomes. This essay argues, however, that there is an important line of criticism of ICs stemming from a profounder disagreement with the post-Cold War international legal system – the critique related to ethno-national and/or authoritarian populism – which poses novel challenges to justifying ICs. Engaging with Dothan’s arguments through the prism of the populist backlash, this essay contributes to recent scholarship on populism and international law by explaining how populism challenges the justification of IC interventions. Populists treat majority will and national/regional identity as the exclusive sources of the common good, and this casts doubts on arguments favouring multilateralism, such as the Condorcet Jury Theorem used by Dothan. It also allows populists to re-frame IC interventions as threats to people’s well-being and disseminate ‘counter-myths’ delegitimizing ICs, which may impair ICs’ ability to produce good outcomes. Altogether, populism has the capacity to increase the costs of international judicial intervention for ICs and reduce the costs of non-compliance and exit for the populists, which confronts IC scholars and judges with new challenges.

The Role of the Judicial Branch in Brazilian Rule of Law Erosion

The rule of law is the central milestone of modern democratic states. There is a gap, however, between what is on the constitutional texts and the lived-in world. The scholars use to concentrate their focus on the Executive Branch’s role (and, sometimes, of Legislative Power) in situations of disregard of the Constitution. However, we chose to target the Judicial Branch and its decisions as contributions to the erosion of the rule of law and the production of democratic decay. We claim that the Judiciary started to play a crucial role in this process by assuming a populist bias and carrying out common lawfare practices – which can be well exemplified by judicial electoral decisions and the judicial decisions about Operation Car Wash. For researching the problem and discussing the hypothesis, we used the theoretical-deductive method. We carried out a literature review. We also use informative documentaries extracted from the media on the behavior of public authorities and the critical description of judicial decisions. The bibliography is interdisciplinary. We conclude that when the Judicial Branch becomes a political actor, it fosters a situation of instability and becomes an institution whose legitimacy depends on variations in the mood of society – which goes against the assumptions of democracy and the rule of law. This new judicial behavior causes an imbalance between the powers and the absence of an institution that moderates social conflicts. This situation contributed to the resurgence of the authoritarian identity of Brazilian civil society and the ideological polarization that culminated in the election of a far-right administration in 2018.

How Liberty Dies in a Galaxy Far, Far Away: Star Wars, Democratic Decay, and Weak Executives

In this article we argue that the story of Star Wars has much to tell us about perennial questions of constitutional design. The series offers a rich cinematic exploration of some of the most pressing real-life issues of politics and constitutionalism and is, we suggest, a fruitful source of insight for issues of constitutional design and regulation. This article proceeds in three parts. In Part I, we sketch the political context which grounds our analysis, outlining the key constitutional institutions of the Galactic Republic, and their rapid decline and fall as documented across the prequel trilogy. In Part II, we outline the existing contributions commentators have made in respect of Star Wars and its lessons for constitutional design and regulation—the problem with the concentration of government power in one person and the risks posed to political systems by excessive delegation of authority to the executive branch. We then introduce three more nuanced lessons that we think the films offer: the ‘Publius paradox’; the hollowness of legalism; and the dangers of confusion at the apex of power. In Part III, with detailed analysis of the films, we show how the Star Wars saga clearly illustrates these lessons: that a constitutionally weak executive, rather than a strong one, can be a cause of democratic decay and autocracy, as it proves incapable of meeting the demands of governance; that commitment to and obsession with law is not per se any bulwark against autocracy; and that unclear lines of constitutional authority pose a huge risk at times of strain and crisis. We argue that the constitutional problem Star Wars illustrates is more subtle and more important than the dominant accounts suggest: that under concentration of power creates the risk of overconcentration of power. If we fear the decay of democracy into autocracy and wish to respond to it, we must be careful not to excessively limit or diffuse power. If we do, and begin to see constitutionalism as solely or primarily a means of restraining government, we may limit government so much that we cause the very problem we seek to prevent.

Transformations of work and democratic decay

Democracies worldwide are under stress. Two distinct families of explanation can be identified by the relative emphasis they place on the cultural versus the economic. Protesting against this dichotomy, there are those who insist that economic and cultural grievances interact. A conceptual scheme which ties together the economic and the cultural through interaction, however, rests on a prior separation. In this article, a richer and more plausible account of the relationship between transformations of work and contemporary democratic decay is developed. This account is based on a social practice model of work, in which the economic and the cultural are entirely intertwined. The social practice of work is among other things a privileged site for the realisation of certain ‘goods of work’. These include self-respect, self-esteem and self-realisation. It is by altering expectations about the realisation of the goods of work that transformations of work have contributed to an environment within which democracies are under stress.

The Colonialist Roots of Democratic Decay: Collective Action, Experimental Psychology, and Spatial Discourse

Democracy and dictatorship both depend on collective action, which humans avoid because it takes more effort than it is worth. Experimental psychology reveals that positive spatial discourse, explicit or implicit, reduces the effort that humans project a task to require. If so, dictatorships arise because explicit positive spatial cues, capable of retaining coherence only if assigning only to relatively few members of any population, generate the collective repression by a minority that establishes any dictatorship. Conversely the implicit cue to group size in a color metaphor, capable of assigning throughout a population, generates the universal franchise establishing a democracy. By supplementing spatial cues dividing Europeans with a metaphor of whiteness unifying Europeans and their settlers, colonialism made democracy possible once European withdrawal ended white dictatorship over colonial territories. But by erasing the condition that once secured the universal franchise among Europeans and their settlers, loss of colonies invigorates whites’ fears that hard won political rights have reverted to insecurity. That insecurity is responsible for the democratic decay now evident across Europe and its settler territories.

With a different name, the rose is not a rose anymore: legislative quality and gender equality in the AKP's Turkey

ABSTRACT The 1982 Turkish Constitution established a legal system aimed at ensuring state efficiency and stability more than the full respect of the rule of law. In the last decade, the latter is undergoing a democratic decay. The currently dominant Islamic Populism is reinterpreting fundamental concepts of constitutional democracy to entrench a paternalistic majoritarian vision of the law-making process and of the society. This perspective undermines the principle of gender equality, confirming the denial of LGBTQIA+ rights and increasingly favouring the principle's interpretation in line with the Islamic conception of gender complementarity. Such a limitation in women's enjoyment of equality is quite striking for a country that started the process of women's emancipation and empowerment at the beginning of the twentieth century, coevally with the establishment of the Turkish Republic. Furthermore, this drift raises doubts as to the activity of the parliamentary committee on ‘Equal opportunity for women and men’, established in 2009 with the duty of ensuring the respect for gender equality throughout the law-making process. Does it effectively enhance gender equality in the legislation or is it a mere reputational tool? To answer this question, after having introduced the illiberal features of the current Turkish regime, the activity of the Committee is assessed against the European and Turkish standards on the quality of legislation. Finally, concluding remarks compare the Turkish case with other illiberal authoritarianisms’ discourse on gender equality, underscoring to what extent the Turkish authoritarian drift entails an anti-gender evolution in line with the conservative ideological vision of several other populisms.

Responding to Democratic Decay in South Asia: The ‘Federalism Constraint’ on Regional Emergency Powers in India

Abstract 2020 marked the 14th consecutive year of democratic decline in the world, and South Asia has been no exception to this global phenomenon. This paper focuses on one particularly egregious onslaught on democracy in India. In August 2019, the Indian government stripped the former state of Jammu and Kashmir of its special status under the Constitution of India, and reorganized its territory into two union territories. The government’s use of its regional emergency powers provided the legal basis for operationalizing these changes. Their use in this manner raises the question of the proper scope of these powers, independently of whether the proclamation of the regional emergency was constitutionally valid. What, if any, are the substantive limitations that constrain the center’s exercise of regional emergency powers? This paper offers a partial response to this question. It relies on the basic structure doctrine to theorize a substantive limitation on their exercise and situates this limitation in the wider legal and historical landscape on regional emergency powers. Articulating it as the ‘Federalism Constraint’, the paper argues that, even when a validly proclaimed regional emergency is in force in a state, the center cannot exercise its regional emergency powers to effect a permanent change to the detriment of the state, as doing so would damage federalism, a basic feature of the Constitution. On this basis, the paper argues that the recent changes to the status of the former state of Jammu and Kashmir are unconstitutional.

Administrative Law as a Dual State. Authoritarian Elements of Administrative Law

Scholars have recently shown how in Europe regimes in democratic decay (e.g. Poland, Hungary) take all sorts of measures targeting and marginalizing political opponents. Although they are authoritarian by nature, the measures are cast in a legal form. According to some scholars this kind of authoritarian rule of law can be best understood as a dual state, namely a combination of the normative state (the rule of law) and the prerogative state (the pure—political or arbitrary—will of those in power). Building on these insights, the present paper makes two new observations. First, administrative law is distinctively well suited to cater for the creation of a dual state. By distinctively I mean better than civil and criminal law. In fact, I argue that administrative law constitutes a dual state in and of itself combining normative and prerogative state elements within a single area of law, in ways that cannot be done under civil and criminal law. Second, not only regimes in democratic decay but also liberal democracies make use of the dual state nature of administrative law. The paper illustrates this point with two techniques whereby liberal democracies use administrative law to circumvent or pervert the normal operation of criminal law, namely crimmigration and the alien detention of citizens. My underlying normative point is to draw attention to the inherent authoritarian potential of administrative law.

Constitutional Conventions and the Judiciary

Abstract Analyses of constitutional conventions tend not to include those conventions that concern relations between the judiciary and other arms of government. The focus is generally on the conventions concerning the monarch, executive and legislature. This article argues that a study of the constitutional conventions relating to the judiciary reveals three insights about the nature of constitutional conventions and the nature of the judiciary. First, significant aspects of the judiciary’s authority, independence and impartiality are often secured by means of constitutional convention. Second, these conventions help understand the simultaneous strength and fragility of the judiciary’s constitutional position. Third, they highlight that, contrary to suggestions in the literature on democratic decay, it is not always problematic for constitutional conventions to be modified or even destroyed. To illustrate these insights, the article compares the executive’s duty to defend the judiciary from public attack in Australia, the UK and the United States.

Information Warfare and Democratic Decay

This paper is the first chapter of a book entitled Tyrants on Twitter: Protecting Democracies from Chinese and Russian Information Warfare (forthcoming, Stanford University Press). The book analyzes the threat presented by Chinese and Russian cyber troops, who exploit U.S. social media platforms to conduct information warfare. The book also presents a detailed proposal for transnational regulation of social media to protect democracies from information warfare. The first chapter analyzes the relationship between information warfare and democratic decay: the recent decline in the number of democratic states and the corresponding increase in the number of authoritarian states. The chapter defines “information warfare” as the exploitation of social media to conduct foreign influence operations (FIOs) or, alternatively, as “organized social media manipulation” (OSM) that is directed towards a foreign audience or foreign policy objective. Thus, information warfare lies at the intersection between OSM and FIOs. I argue that the combination of OSM, FIOs and information warfare—viewed in the aggregate—is a major factor contributing to the phenomenon of democratic decay. This chapter also presents a brief summary of the proposal for transnational regulation, which is developed in greater detail in later chapters.

Solutions for Democratic Decay

Solutions for Democratic Decay Sheri Berman (bio) Democracy Rules by Jan-Werner Müller Farrar, Straus and Giroux, 2021, 256 pp. Democracy, as Freedom House put it in its 2021 report, is "under siege." Over the past decade there has been a steady decline in the quantity and quality of democracies across the globe. And perhaps the most consequential case of democratic decay today is in the United States, one of the oldest and most powerful democracies in the world. For years, the United States has experienced growing economic inequality, declining social mobility, and increasing geographic, racial, religious, and political divides. These problems, along with the inability or unwillingness of the government to deal with them, have made Americans increasingly pessimistic and dissatisfied with democracy. The Pew Research Center, for example, has found that by the year 2050, many expect the economy will be weaker, healthcare will become less affordable, the environment will be in worse condition, our political divisions will be more pronounced, and the U.S. role in the world will diminish. The 2020 Global Satisfaction with Democracy report, published by the Centre for [End Page 193] the Future of Democracy at Cambridge University, has documented a dramatic increase in Americans' dissatisfaction with democracy from the 1990s to the present day. This is the context that made Donald Trump's 2016 electoral victory possible. During his administration, U.S. democratic norms and institutions faced their most significant challenges in decades. There is a huge literature on democracy's contemporary problems, much of which has focused on right-wing populists like Trump, who have become the most powerful antagonists of liberal democracy in a wide variety of countries. This literature has helped us understand the nature of populism and the conditions under which it thrives. If we want to know, however, when populism shifts from a challenge to democracy to becoming an existential threat, we need to understand what we are fighting to defend. In other words, with Trump's presidency and a decade of global democratic decay behind us, it is time for scholars to shift their attention from populism and threats to democracy to democracy itself. Jan-Werner Müller sets out to do this in Democracy Rules. Müller, an acclaimed intellectual historian, political theorist, and author of the excellent study What Is Populism?, is particularly well-suited to this task. He argues that understanding democracy's problems, and potential solutions to them, requires returning to democracy's "first principles" or "hard borders." Democracy Rules highlights two of these in particular: political equality and an acceptance of basic facts. Political equality means that the rights of citizenship—including the right to develop one's own political preferences and priorities, participate in the political process, and enjoy freedoms of speech and assembly—must be guaranteed for all citizens. In a democracy there can be no first- and second-class citizens; all must be treated equally by public officials, governments, and their fellow citizens. This does not mean that every citizen must be equally successful in getting their preferred candidates elected or policies implemented; democracy generates winners and losers. But citizens cannot be systematically disadvantaged or hindered from exercising their rights and pressing their demands on the political system. Democracy cannot, as Müller puts it, "expel or disenfranchise citizens," and "it also cannot in more insidious ways deny the standing of particular citizens, for that conflicts with a commitment to democratic equality." Müller adds that democracy can only work if our claims, choices, and conflicts are constrained by facts. Citizens in modern democracies have diverse preferences and priorities; disagreement is inevitable. As Müller notes, arguments in a democracy are necessary and productive: when more views are "on the table," the "pressure to justify them" grows, helping citizens learn and "refine" their thinking and habituating them "to the notion that others might just possibly be right." But for this process to occur, citizens can't disagree on the underlying reality upon which their differences are based. As the old saying goes, everyone is entitled to their opinion, but not their own facts. We must accept the legitimacy of different preferences and priorities and be willing to...

How Liberty Dies in a Galaxy Far, Far Away: Star Wars, Democratic Decay, and Weak Executives

In this article we argue that the story of Star Wars has much to tell us about perennial questions of constitutional design. The series offers a rich cinematic exploration of some of the most pressing real-life issues of politics and constitutionalism and is, we suggest, a fruitful source of insight for issues of constitutional design and regulation. This article proceeds in three parts. In Part I, we sketch the political context which grounds our analysis, tracing the key constitutional institutions of the Galactic Republic, and their rapid decline and fall as documented across the prequel trilogy. In Part II, we outline the existing contributions commentators have made in respect of Star Wars and its lessons for constitutional design and regulation—the problem with the concentration of government power in one person and the risks posed to political systems by excessive delegation of authority to the executive branch. We then introduce three more nuanced lessons that we think the films offer: the ‘Publius paradox’; the hollowness of legalism; and the dangers of confusion at the apex of power. In Part III, with detailed analysis of the films, we show how the Star Wars saga clearly illustrates these lessons: that a constitutionally weak executive, rather than a strong one, can be a cause of democratic decay and autocracy, as it proves incapable of meeting the demands of governance; that commitment to and obsession with law is not per se any bulwark against autocracy; and that unclear lines of constitutional authority pose a huge risk at times of strain and crisis. We argue that the constitutional problem Star Wars illustrates is more subtle and more important than the dominant accounts suggest: that under concentration of power creates the risk of overconcentration of power. If we fear the decay of democracy into autocracy and wish to respond to it, we must be careful not to excessively limit or diffuse power. If we do, and begin to see constitutionalism as solely or primarily a means of restraining government, we may limit government so much that we cause the very problem we seek to prevent.

‘Good’ Court-Packing? The Paradoxes of Democratic Restoration in Contexts of Democratic Decay

‘Good’ Court-Packing? The Paradoxes of Democratic Restoration in Contexts of Democratic Decay

The Cost of Convergence

Much recent discussion about democratic dysfunction has focused on polarization. In Europe, however, it is not so much polarization and partisanship that have led to democratic decay and the rise of populism, but rather party convergence and diminishing partisanship. The clearest and most consequential example of this dynamic occurred in Germany, where the main center-left and center-right parties moved to the center. This article argues that polarization over economic issues is less problematic than polarization over culture, and that convergence can also threaten democracy if parties move away from voter preferences and a “representation gap” emerges, creating a context in which extremist parties can thrive.

Charting a way forward? Post-juristocracy, democratic decay, and the limits of Gardbaum’s valuable theory

Charting a way forward? Post-juristocracy, democratic decay, and the limits of Gardbaum’s valuable theory

Democratic regression in Asia: introduction

ABSTRACT Given Asia-Pacific’s diversity and the large variance of potentially relevant causal factors, the region presents social scientists with a natural laboratory to test competing theories of democratic erosion, decay and revival and to identify new patterns and relationships. This introductory article offers a brief review of the relevant literature and introduces the different categories of analysis that build the analytical framework considered in various forms in the special issue. The article discusses the reasons for the renewed pessimism in democratization and democracy studies and provides a survey of different conceptualizations intended to capture forms of democratic regression and the autocratization concept to which the contributors to this special issue adhere. We discuss how Asia-Pacific experiences fit into the debate about democracy’s deepening global recession and examine assumptions about the causes, catalysts and consequences of democratic regression and resilience in the comparative politics literature. Finally, the remaining twelve articles of this special issue will be introduced.

Populism in Power and Democracy: Democratic Decay and Resilience in the Czech Republic (2013–2020)

Populism and technocracy reject vertical accountability and horizontal accountability. Populism and technocracy can combine to form ‘technocratic populism.’ The study assesses the extent to which democratic decay can be traced to the actions of technocratic populists as opposed to institutional factors, civil society, fragmentation and polarization. The main findings of this article are that technocratic populism has illiberal tendencies expressed best in its efforts at executive aggrandizement (cf. Bermeo, 2016). Without an effective bulwark against democratic erosion (cf. Bernhard, 2015), technocratic populism tends to undermine electoral competition (vertical accountability), judiciary independence, legislative oversight (horizontal accountability), and freedom of the press (diagonal accountability). The most effective checks on technocratic populist in power, this study finds, are the courts, free media, and civil society. This article highlights the mechanisms of democratic decay and democratic resilience beyond electoral politics. It indicates that a combination of institutional veto points and civil society agency is necessary to prevent democratic erosion (cf. Weyland, 2020). While active civil society can prevent democratic erosion, it cannot reverse it. Ultimately, the future of liberal democracy depends on the people’s willingness to defend it in the streets AND at the ballot box.

The Impact of the COVID-19 Pandemic in Central and Eastern Europe

The COVID-19 pandemic represents a new and unparalleled stress-test for the already disrupted liberal-representative, democracies. The challenges cluster around three democratic disfigurations: technocracy, populism, and plebiscitarianism—each have the potential to contribute to democratic decay. Still, they can also trigger pushback against illiberalism mobilizing citizens in defense of democracy, toward democratic resilience. This article looks at how the COVID-19 pandemic affects democratic decay and democratic resilience in Central and Eastern Europe (CEE). It finds varied responses to the COVID-19 crisis by the CEE populist leaders and identifies two patterns: the rise of autocracy and democratic resilience. First, in Hungary and Poland, the populist leaders instrumentalized the state of emergency to increase executive aggrandizement. Second, in the Czech Republic and Slovakia, democracy proved resilient. The COVID-19 pandemic alone is not fostering the rise of authoritarianism. However, it does accentuate existing democratic disfigurations.