Recent developments in Hungary and Poland have made democratic backsliding a major issue of concern within the European Union. This article focuses on the secondary agents that facilitate democratic backsliding in Hungary and Poland: the European People’s Party, which has continually protected the Hungarian Fidesz government from EU sanctions, and the Hungarian ruling party Fidesz, which repeatedly promised to block any EU-level sanctions against Poland in the Council. The article analyses these agents’ behaviour as an instance (...) of transnational complicity and passes a tentative judgment as to which of the two cases is normatively more problematic. The analysis has implications for possible countervailing responses to democratic backsliding within EU member states. (shrink)

There is renewed scholarly interest in studying the dynamics of constitutional revolutions and the explanations for the rise of constitutional courts around the world. At the same time, there is growing discussion of democratic backsliding and concern that democracies are exhibiting extremism, weakening of opposition forces and constitutional courts, and violations of civil and political rights that are pertinent to vibrant democracies. Scholars try to study both phenomena and understand the relationship between them. Israel is an important case (...) study for both agendas. This Article analyzes the jurisprudence of Aharon Barak, one of the greatest jurists of our time with a worldwide reputation for revolutionizing both Israeli constitutional law and comparative constitutional law. It explains the tactics and strategy used by Barak to revolutionize Israeli constitutional law on issues of reasonableness, proportionality, standing, justiciability, constitutional review, equality, and supra-constitutional law. It reveals how each revolution paved the way for the next. It offers explanations for the effectiveness of these judicially-led revolutions as well as possible bases for their legitimation. Barak was a common law judge and ultimately treated parliamentary sovereignty as a doctrine arising from common law and constrained by common law, though he never quite put it in these terms. The Article concludes with explanations for the political backlash experienced by the current Israeli Supreme Court that some have characterized as democratic backsliding. It argues that the Court contributes to the development of law as part of a dialog and interaction between the different branches of government. As the Court operates within these dynamics, it must understand and take into account the institutional, political, and social environments in which it operates to preserve legitimacy and achieve efficacy. Barak was a strategic player that laid foundations for an expansive judicial power, but his Court was very prudent in utilizing that power. His successors may have contributed unintentionally to the backlash against the Court by following Barak’s substantive jurisprudence, but not necessarily his prudent tactics and strategy. (shrink)

The Article discusses the democratic backsliding after 2010 in Hungary, and how it affected the state of human rights in the country, a Member State of the European Union. The main argument of the Article is that paradoxically the non-legitimate 1989 constitution provided full-fledged protection of fundamental rights, while the procedurally legitimate 2011 constitution-making resulted in curtailment of rights and their constitutional guarantees. The Article first describes the democratic transition that occurred in 1989–1990 as a rights revolution (...) and the results of the 2011 “illiberal” constitution, called Fundamental Law, as counter-revolution. The second part of the Article illustrates the constitutional and statutory regulation of human rights protection after this “rule of law revolution,” and the activist jurisprudence of the first Constitutional Court using the concept of an “invisible constitution” to protect human rights. The third part discusses the rights provisions of the new Fundamental Law and several statutes dismantling the guarantees of human rights, with special attention to the decreased possibilities of state institutions, such as the Constitutional Court, the ordinary judiciary and ombudsmen, as well as civil society organizations to effectively protect fundamental rights. The fourth part assesses the efforts of European institutions to force the Hungarian government to comply with the human rights standards laid down in the European Convention of Human Rights and in the Treaty of the European Union. The Article concludes that neither internal nor external challenges could prevent the development of a new authoritarian regime with no guaranteed human rights. (shrink)

What should the EU do about the fact that some Member States are backsliding on their commitments to democracy, supposedly a fundamental value of the EU? The Treaty provisions under Article 7 TEU are widely criticized for being ineffective in preventing such developments. Are they legitimate? I argue that the ultimate sanction of Article 7 TEU falls into a performative contradiction, which undermines its ability to coherently defend fundamental values. Instead, expulsion from the EU is the appropriate, coherent and (...) legitimate final political sanction for democratic and rule of law backsliding by a Member State. The argument has the following steps: In Part 1, I argue that the current Article 7 framework for responding to democratic and rule of law backsliding in the EU is normatively problematic, in that the mechanism currently in the Treaty undermines the values it purports to defend; in other words, it falls into a performative contradiction. It is undemocratic to deprive Member States of their right to vote in the Council while holding them subject to Council decisions. However, Part 2 studies relevant philosophical arguments from an adjacent literature on criminal disenfranchisement, concluding that allowing backsliding Member States to keep their voting rights in the Council _also_ taints the democratic character of Council decision-making. In Part 3, I consider the resulting paradox in light of the literature on militant democracy. Could militant democracy justify Article 7? I argue not; even if we accept the hypothetical justifiability of militant measures, they are not legitimate here since a democratically acceptable alternative exists that would safeguard the democratic character and legitimacy of Council decision-making: expulsion from the Union. I also address a central objection to an expulsion mechanism—that it would require treaty change and is therefore practically impossible. (shrink)

This paper critically engages the legal and political framework for responding to democracy and rule of law backsliding in the EU. I develop a new and original critique of Article 7 TEU based on it being democratically illegitimate and normatively incoherent qua itself in conflict with EU fundamental values. Other more incremental and scaleable responses are desirable, and the paper moves on to assess the legitimacy of economic sanctions such as tying access to EU funds to performance on (...) class='Hi'>democratic and rule of law indicators or imposing fines on backsliding states. I hold such sanctions to be a priori legitimate, and argue that in some cases economic sanctions are even normatively required, given that EU material support of backsliding member states can amount to material complicity in their backsliding. However, an economic conditionality mechanism would need to be designed to minimize unjust and counterproductive effects. One way to pursue this could be to complement sanctions against the backsliding government with investment for prodemocratic actors in that state. (shrink)

Our era is one of democratic backsliding. International courts and institutions have provided some bulwark against this trend, but we are now witnessing leaders seeking to use international law to extend their power. Courts in several countries have relied on international human rights norms to facilitate term limit extensions by leaders seeking to retain power beyond what is constitutionally allowed. This Article documents these cases and calls for a more robust and substantive international law of democracy-protection.

How does a democracy that has survived a close brush with authoritarianism start to recreate conditions of meaningful democratic political competition? What steps are to be taken, and in what order? Certain lessons can be gleaned from comparative experience with the challenges of “front-sliding”—that is, the process of rebuilding the necessary political, legal, epistemic, and sociological components of democracy. This essay maps out those challenges, examines the distinctive and difficult question of punishing individuals who have been drivers of (...) class='Hi'>democratic backsliding, and reflects on how to sequence different elements of front-sliding. (shrink)

Around the world, many liberal democracies are facing in recent years serious challenges and threats emanating inter alia from the rise of political populism. Such challenges and threats are feeding an almost existential discourse about the crisis of democracy, and recent legal and political developments in Israel aimed at weakening the power of the Supreme Court and other rule of law institutions have also been described in such terms. This Article primarily intends to explore the relevance of the discourse surrounding (...) the decline of liberal democracy, and its possible relevance for Israeli democracy, by examining the principal similarities and differences between specific legislative and administrative measures recently taken or contemplated in Israel and in two Central European states: Poland and Hungary. We focus on three sets of illiberal measures adopted or contemplated in Hungary, Poland, and Israel: (i) measures directed at limiting the power of the judiciary; (ii) measures intended to restrict the operation of civil society organizations; and (iii) measures directed at curbing dissent to governmental policies and at influencing the discourse in the media and academia. Although Israeli democratic institutions still retain much of their independence and vitality, we nonetheless find some degree of similarity between measures taken or contemplated by Hungary, Poland, and Israel, despite the many differences between their legal systems, historical contexts, political cultures, and the distinct stages of backsliding they seem to experience. (shrink)

In recent times, it has become increasingly common that elected parties and leaders systematically undermine democracy and the rule of law. This phenomenon is often framed with the term democratic backsliding or democratic regression. This article deals with the relatively little-studied topic of resistance to democratic regressions. Chief amongst the things it discusses is the rather central ethical issue of whether resisters may themselves, in their attempts to prevent a further erosion of democracy, transgress democratic (...) norms. But the argument advanced in the article is not merely about the ethics of resistance. It begins, perhaps unconventionally, by addressing the affective dimension of resistance to democratic regressions, looking in particular at the powerful feelings of anger and despair that pro-democratic citizens living under a regressive government are likely to experience. As the article argues, these feelings have not only motivational but also epistemic potential, which must be adequately theorized in order to understand how resisters can respond to the ethical challenges facing them. (shrink)

In their efforts to prevent democratic backsliding, militant democrats have traditionally been sympathetic to technocratic arrangements. Does this sympathy imply a logical congruence? Comparing theories of militant democracy and epistemic technocracy (aka epistocracy), I discover a common approach to basic aspects of representative democracy. Both theories see voters as fallible or ignorant instead of capable political agents; and they both understand political parties to be channels of state rule rather than democratic expression. This shared suspicion of grassroots (...) political agency explains why they employ non-democratic means to pursue their goals. But the two theories appear to be also analytically co-extensive. Like militant democrats, epistemic technocrats polemicize antidemocrats inasmuch as the latter are proxies for epistemically foul decision-making. Conversely, militant democrats try to block ‘incorrect’ decisions as long as these lead to democratic subversion, thereby producing a distinct type of militant technocracy. The article ends by drawing the implications of this symbiosis of epistemic and militant democratic ideas for contemporary democratic theory. (shrink)

In this paper I aim to provide a novel account of the Democratic Argument for limitarianism. I first claim that the standard version of this argument is questionable due to its reliance on a problematic central premise, namely that excessive wealth damages democracy because of its detrimental impact on political equality. Subsequently, I relocate the fundamental democratic worry in regard to excessive wealth in the process of backsliding, and more specifically in the relation between excessive wealth and (...) political polarization. I then offer a new account of the Democratic Argument for limitarianism which envisages wealth capping as instrumental for democratic resilience, but I maintain that the argument is not unambiguously successful. (shrink)

The year 1997 was critical for Thailand. A severe economic crisis hit in July calling into question years of economic growth and increasing prosperity. A few months later Thailand adopted a new Constitution that aimed at reforming the political system, and at making corruption and vote buying less prevalent. While this article shows that the economic turmoil was a prime catalyst for political change, it was not as simple as saying that public outcry over the economic crisis forced conservative parliamentarians (...) into voting to accept the proposed constitution. While public outcry did matter, what is vitally important is that elite political leaders, the heads of the major parties, ministers, and generals, were renegotiating their alliances and ties both with one another, and with various groups in society that were pushing for change. Elite resignation to political pressure and policy shifts among the top leaders is what ultimately allows for the passage of the constitution and for Prime Minister Chavalit's departure. This article takes a closer look at Thai politics and tries to answer the following questions: Did the economic crisis lead to (meaningful) political reform and why or why not? Since the codification of the 1997 constitution has Thai politics become more democratic? It is my analysis that the consolidation of democracy was in reach in 1997 but today has slipped further from Thai citizens' grasp. The explanations, or the independent variables for both the successful reforms of the political system in 1997 and the backsliding away from democratization, are largely the same. When both internal and external pressures prod democracy along, reforms take place. When pressures are pushing in different directions democratic reforms become threatened. Internal pressures include the military, civil society, and the behavior and power of political and economic elites; and external ones are the IMF, national security concerns, and globalization in general. When conditions or variables change, and when elite priorities or preferences shift, as this article will show, we can see the results in Thai politics. (shrink)

This paper addresses a question posed by the increase of democratic backsliding: whether democracy itself is compatible with human nature. It analyses democracy as a layered system consisting of three levels: the political/institutional, the social/interactional and the psychological/intrapsychic. At each level it uses evolutionary theory to describes features of a ‘light side’ of human nature that makes democracy possible, and of a ‘dark side’ of human nature that leads to democratic backsliding. At the political/institutional level these (...) features are the reduction of reactive aggression and the capacity for the intragroup stranger. At the social/interactional level they are the cultural evolution of cooperative norms and an inclusive group identity. At the psychological/intrapsychic level they are the coherent, continuous positive self-experiences produced by shared positive emotions. However, these mechanisms can misfire at each level, producing the dark side that leads to democratic backsliding. (shrink)

The democratic backsliding that has accelerated across the globe over the past decade has included a rollback of liberal arts and sciences (LAS) as a system of university education. This essay explores the origins and goals of the global LAS education reform movement. I argue that while the movement is under threat largely due to its principled value of educating democratic citizens, it still has powerful potential and global impact; in part because LAS education is primarily an (...) indigenous phenomenon adapting to local circumstances. I also argue that U.S. universities could contribute more constructively to the movement if they conceived of their role as global civic actors that conduct themselves in the spirit of mutuality and reciprocity, not as multinational corporations that channel neoliberal tendencies to maximize revenue. U.S. critics of the global LAS movement should also pay heed to the United States’ own history. Specifically, they can learn from historically Black colleges and universities how, operating under the extreme authoritarianism of the Jim Crow era, they managed to produce leaders who shaped a more democratic country. Liberal arts education produces short term benefits for students and alumni, but in the democratic context it is a long-term wager. (shrink)

Political scientists have conventionally assumed that achieving democracy is a one-way ratchet. Only very recently has the question of “democratic backsliding” attracted any research attention. We argue that democratic instability is best understood with tools from complexity science. The explanatory power of complexity science arises from several features of complex systems. Their relevance in the context of democracy is discussed. Several policy recommendations are offered to help stabilize current systems of representative democracy.

Are critique and the “art of governing” antithetical? The aim of this article is to examine this tension that was laid bare by the Covid-19 pandemic by introducing “critical friendship” as a conceptual framework for a constructive interdisciplinary engagement with science in a post-pandemic era. It does so by drawing on several works and insights: (i) Michel Foucault’s notion of “critical attitude” as well as his assessment of philosophy as providing a “diagnosis of the present;” (ii) Bruno Latour and colleagues’ (...) idea of a “critical zone” or what I call a horizontal epistemology of critique; (iii) Aristotle’s notion of friendship as being necessary for the “common good;” and finally (iv) Jacques Derrida’s interpretation of the messianic character of friendship in the constitution of progressive democracies. Whereas critical theory has been described as either “explanatory-diagnostic” or “emancipatory-utopian,” a critical friendship approach aims to be both diagnostic and emancipatory in an age of uncertainty and democratic backsliding. (shrink)

Indonesia, like many other countries around the world, is currently experiencing the process of democratic backsliding, marked by a toxic mix of religious sectarianism, polarization, and executive overreach. Despite this trend, Indonesians have become more, rather than less, satisfied with their country's democratic practice. What accounts for this puzzle? Unity Through Division examines an overlooked aspect of democracy in Indonesia: political representation. In this country, an ideological cleavage between pluralism and Islamism has long characterized political competition. This (...) cleavage, while divisive, has been a strength of Indonesia's democracy, giving meaning to political participation and allowing a degree of representation not often observed in young democracies. While the recent resurgence of radical Islam and political polarization in Indonesian politics may have contributed to democratic erosion, these factors have simultaneously clarified political alternatives and improved perceptions of representation, in turn bolstering democratic participation and satisfaction. This compelling book effectively challenges the wisdom of the role of Islam in Indonesian political life and provides a fresh analysis for debates on democratic backsliding in Indonesia and beyond. (shrink)

Political scientists have conventionally assumed that achieving democracy is a one-way ratchet. Only very recently has the question of ‘democratic backsliding’ attracted any research attention. We argue that democratic instability is best understood with tools from complexity science. The explanatory power of complexity science arises from several features of complex systems. Their relevance in the context of democracy is discussed. Several policy recommen- dations are offered to help stabilize current systems of representative democracy.

Extensive urbanization is one of the most significant demographic and geopolitical phenomena of our time. Yet, with few exceptions, constitutional theory has failed to turn its attention to this crucial trend. In particular, the burgeoning constitutional literature aimed at addressing phenomena such as democratic backsliding, constitutional retrogression, and populist threats to judicial independence and the rule of law has failed to respond to the significance of place as an emerging cleavage in contemporary politics. An alarming disconnect has emerged (...) between constitutionalism's overwhelmingly statist (or Westphalian) outlook and the reality of geographically localized concentration of worldviews, policy preferences, and political identities. In this essay, I identify urban agglomeration and the accompanying resurgence of the urban-rural divide as posing a critical challenge to liberal constitutional democracy, and argue that the time is ripe to pay closer attention to the spatial dimension of constitutional governance and its impact on the rise of anti-establishment political resentment. To that end, in the essay's final part I identify several areas of constitutional law and theory that appear to hold some intellectual promise in thinking creatively about mitigating the urban-rural divide, and about the mounting urban challenge more generally. (shrink)

Even though revolutions are central to the history of modern constitutionalism, some revolutions have invited more attention than others. This essay, a response to a symposium on India’s Founding Moment, underlines the significance of India’s constitutional founding and highlights ways in which India’s founders sought to create and develop democracy in a land where its supposed ingredients did not exist. The essay then turns to contemporary politics and considers the possibilities and limitations of the constitutional framework to address the current (...) concerns over democratic backsliding in India. (shrink)

The study of illiberal constitutions has recently generated enormous scholarly interests. Few, however, have focused on whether democracies may still embrace constitutionalism mixed with illiberal elements. This article explores mixed constitutions of South Korea and Taiwan, the two democracies with vibrant civil societies in East Asia. Three distinctive features in both constitutions have demonstrated illiberal elements, including duty clauses imposed upon citizens, directives requiring the State to enact laws to fulfill the goals of governance, and constitutional cultures that exhibit high (...) deference to political elites based on the Confucian tradition. This article further examines the impacts of such mixed constitutions on three challenging issues: managing pandemic crisis, applying artificial intelligence, and combating fake news. This article finds mixed features of illiberal and democratic constitutions in the two countries by giving their governments more space in managing urgent crises, showing higher deference to experts who are generally trusted by the public, and making compromises to individual rights for greater public good. However, this does not imply that the government is not made democratically accountable, or rights and freedoms are not asserted or valued by individuals. To the contrary, nongovernmental organizations and courts in the two countries continue to act as a counterbalancing force, challenging the government’s policies and decisions if not reasonably balanced, weakening the tendency of power concentration that has been seen in other countries where democratic backsliding or authoritarian governance is gradually revived. (shrink)

Nobel laureate James Buchanan downplays any theory of ethical politicians, focusing instead on rules which economize personal restraint, setting lower moral expectations. Through a constructive critique of James Buchanan’s work, I argue these lowered expectations come at a cost: degraded character in politicians, leading to constitutional decay. Buchanan lacks a theory to address choices between (a) action which furthers the politician’s self-interest and (b) action which protects some already accepted, good rule, but which does not further their self-interest. I generate (...) a theory of the Principled Politician, an agent characterized by a prior commitment to fair play. (shrink)

In recent years much has been said about how new democracies are backsliding or have regressed since the turn of the century when hope and optimism about the future spread of democracy was widespread. However, ideas that democracy would spread were based on institutional and governance indicators rather than from the perspective of everyday citizens. When we look at public attitudes towards democracy during this period, we can see that such optimism was perhaps misplaced or premature. Drawing on findings (...) from the AsiaBarometer and the World Values Survey, this research finds that public attitudes during this time were not overly convinced by democracy and certainly not yet satisfied with their government's performance in terms of providing basic democratic freedoms and independence. (shrink)

People backslide. They freely do things they believe it would be best on the whole not to do. Mele draws on work in social and developmental psychology and in psychiatry to motivate a view of human behavior in which both backsliding and overcoming the temptation to backslide are explicable.

Disavowals such as "That's not who I am" are one way to distance ourselves from unsavory actions in order to try to mitigate our responsibility for them. Although such disclaimers can be what Harry Frankfurt calls "shabbily insincere devices for obtaining unmerited indulgence," they can also be a way to renew our commitments to new values as part of the processes of aspiration and moral improvement. What, then, separates backsliding aspirants from those in denial who seek unmerited indulgence? Drawing (...) on Christine Korsgaard, on the one hand, and Heidegger and Merleau-Ponty, on the other, I propose a two-dimensional account of practical identity that makes sense of a certain kind of self-ignorance and helps us distinguish the aspirant from the superficially similar cases of denial and resignation. A key factor is how one responds to what I call residual practical identities. (shrink)

Discusses an important objection to the view that moral judgements are prescriptive: the existence of cases in which people act in ways that they know to be wrong. The objection is that if moral judgements are prescriptive, it is impossible to accept a moral judgement and yet act contrary to it; therefore prescriptivism must be wrong. It is argued that cases of moral weakness do not constitute a counterexample to prescriptivism.

The question of whether or not a closed border entry policy under the unilateral control of a democratic state is legitimate cannot be settled until we first know to whom the justification of a regime of control is owed. According to the state sovereignty view, the control of entry policy, including of movement, immigration, and naturalization, ought to be under the unilateral discretion of the state itself: justification for entry policy is owed solely to members. This position, however, is (...) inconsistent with the democratic theory of popular sovereignty. Anyone accepting the democratic theory of political legitimation domestically is thereby committed to rejecting the unilateral domestic right to control state boundaries. Because the demos of democratic theory is in principle unbounded, the regime of boundary control must be democratically justified to foreigners as well as to citizens, in political institutions in which both foreigners and citizens can participate. (shrink)

Democracy is not naturally plausible. Why turn such important matters over to masses of people who have no expertise? Many theories of democracy answer by appealing to the intrinsic value of democratic procedure, leaving aside whether it makes good decisions. In Democratic Authority, David Estlund offers a groundbreaking alternative based on the idea that democratic authority and legitimacy must depend partly on democracy's tendency to make good decisions.Just as with verdicts in jury trials, Estlund argues, the authority (...) and legitimacy of a political decision does not depend on the particular decision being good or correct. But the "epistemic value" of the procedure--the degree to which it can generally be accepted as tending toward a good decision--is nevertheless crucial. Yet if good decisions were all that mattered, one might wonder why those who know best shouldn't simply rule.Estlund's theory--which he calls "epistemic proceduralism"--avoids epistocracy, or the rule of those who know. He argues that while some few people probably do know best, this can be used in political justification only if their expertise is acceptable from all reasonable points of view. If we seek the best epistemic arrangement in this respect, it will be recognizably democratic--with laws and policies actually authorized by the people subject to them. (shrink)

From the theory of ‘deliberative democracy’ to the politics of the ‘third way’, the present Zeitgeist is characterized by attempts to deny what Chantal Mouffe contends is the inherently conflictual nature of democratic politics. Far from being signs of progress, such ideas constitute a serious threat to democratic institutions. Taking issue with John Rawls and Jürgen Habermas on one side, and the political tenets of Blair, Clinton and Schröder on the other, Mouffe brings to the fore the paradoxical (...) nature of modern liberal democracy in which the category of the ‘adversary’ plays a central role. She draws on the work of Wittgenstein, Derrida, and the provocative theses of Carl Schmitt, to propose a new understanding of democracy which acknowledges the ineradicability of antagonism in its workings. (shrink)

In both political science and political theory, democratization has largely been considered a problem for non-liberal democratic countries. Drawing on Chinese political thinker Jiwei Ci’s writings on freedom, democracy, agency, plausibility, and legitimacy, I critically reconstruct Ci’s theory of democratization and his method of theorizing. I argue that a normative account of democratization is embedded in Ci’s political thought, which is based upon a philosophical anthropology of the modern man and focuses on broadening political possibilities in a given society. (...) Ci’s theory allows us to think about democratization beyond the binary of democracy and authoritarianism, as his theory places democratization as an inherent and persistent challenge for all political communities. (shrink)

This book offers a systematic treatment of the requirements of democratic legitimacy. It argues that democratic procedures are essential for political legitimacy because of the need to respect value pluralism and because of the learning process that democratic decision-making enables. It proposes a framework for distinguishing among the different ways in which the requirements of democratic legitimacy have been interpreted. Peter then uses this framework to identify and defend what appears as the most plausible conception of (...) democratic legitimacy. According to this conception, democratic legitimacy requires that the decision-making process satisfies certain conditions of political and epistemic fairness. (shrink)