DEATH BY A THOUSAND CUTS
How do liberal democracies die? Slowly, gradually and piecemeal, according to Tom Ginsburg and Aziz Z. Huq, co-authors of How to Save a Constitutional Democracy. Both professors at the University of Chicago Law School, they examine the processes through which liberal democracy erodes across the world and reflect on the role institutions and law play in both the decline and the saving of our democracies.
They distinguish between democratic collapse, a fast mode of democratic failure in which democratic regimes are unseated and transformed by authoritarian actors (military coups); and democratic erosion, a process of ‘incremental, but ultimately substantial decay in the three basic predicates of democracy— competitive elections, liberal rights and associations and the rule of law’.
Though democratic collapse has become rare, democratic erosion has become more pervasive, affecting countries like Poland, Israel, Turkey, and even the US, which The Economist Intelligence Unit downgraded in 2016 to the status of ‘flawed democracy’, due to weaknesses in how they conduct elections.
According to the authors, erosion takes place when the three elements of a liberal democracy are simultaneously harmed through curbs on media, attacks on NGOs and measures that concentrate powers and circumvent institutions that should play a role as checks and balances. Erosion can also take place through technical or administrative measures that prevent institutions from playing their regulatory role vis-à-vis the executive. Other mechanisms include the centralisation and politicisation of executive power as exercised through the bureaucracy, the shrinking of shared public spheres in which liberal rights of speech and association can be enjoyed and the delegitimisation of effective partisan political competition.
Many of these acts may seem innocuous on their own and may even be legal, such as constitutional amendments, but they erode a democratic system’s capacity to defend itself against itself. Democracies die by a thousand cuts.
Chapter 4 examines the mechanisms of the erosion, as well as the circumstances in which it is more likely to take place. The authors consider two instances—the rise of charismatic populism and partisan degradation. The former involves a single leader whose beliefs ‘license her to speak directly for the people, to demonise as alien and illicit all political foes, and to insulate herself from both legal and electoral accountability’. Partisan degradation emerges when one party wins a majority that enables it to neuter the opposition and undermine the institutional foundations of democracy.
The authors argue that democratic erosion is less likely to transform flailing democracies into full-fledged authoritarian regimes and more likely to create hybrid regimes in which institutions are compromised, political competition is restricted and basic liberties are traded for national, political objectives, such as internal and external security, and the self-preservation of the regime in place.
The second half of the book concentrates on the US and how certain changes in constitutional design can lead to better protection of its democracy: reinforcing the opposition, improving electoral integrity, establishing timebound tenure for Supreme Court justices, improving bureaucratic autonomy, imposing greater checks on the presidency. The authors don’t claim that legal tweaks are a panacea for fixing our ailing democracies, but that we should seek to adapt rules to the times we live in.
While India does not figure prominently in the book, its analytical grid can be used to take stock of India’s own record of respect for democratic norms and procedures. The book leads one to reflect on the current state of the judiciary’s autonomy, the ineffective separation of powers, the inability of Parliament to exert any kind of check on the executive, the shrinking public space—increasingly dominated by partisan news and trolls— and, arguably, the violent consequences of the nationalistic rhetoric employed by the current regime. ■
DEMOCRATIC EROSION IS LIKELY TO CREATE REGIMES IN WHICH INSTITUTIONS AND BASIC LIBERTIES ARE COMPROMISED
HOW TO SAVE A CONSTITUTIONAL DEMOCRACY by Tom Ginsburg & Aziz Z. Huq OXFORD UNIVERSITY PRESS ` 1,595; 308 pages