The Importance of Abusive Constitutional Borrowing: A Reply to Commentators

Guest Blogger

For the Balkinization symposium on Rosalind Dixon and David Landau, Abusive Constitutional Borrowing: Legal globalization and the subversion of liberal democracy (Oxford University Press, 2021).

Rosalind Dixon and David Landau

We are deeply grateful to Kim Lane Scheppele, Oren Tamir, Sam Issacharoff, and Alvin Cheung for so generously and carefully engaging with our work, both at an earlier event at ICON-S and in Balkinization. We are humbled that our work is being read by such a distinguished group of commentators, as well as by the wide-ranging discussion our work has sparked.

The core contribution of Abusive Constitutional Borrowing is to demonstrate the many ways that authoritarians and would-be authoritarians can wield the core designs, concepts, and doctrines of liberal democratic constitutionalism to instead undermine democratic constitutionalism. The very tools used to protect and promote democratic constitutionalism are often turned into potent weapons to attack it. Perhaps the most important audience for our book, then, is the comparative constitutional law community itself, as well as adjacent communities like those found in international law and international human rights. We intend our book as something of a warning about a dark side of our fields, and as a call not to curtail efforts to promote liberal democratic constitutionalism, but instead to redouble efforts in a way that is more sensitive to the risks of abuse. For example, because many concepts intended to promote liberal democracy can in fact be repurposed to attack it, scholars and constitutional policymakers must be more alive to these risks. The possibility of abuse is sometimes quite substantial. While no norm can be fully insured against the risk of abuse, we do think that the community involved in developing and promoting liberal democratic norms could often do a better job of “abuse proofing” designs, concepts, and doctrines.

To substantiate our claim, we draw on examples from the heartland of liberal democracy. We devote chapters to rights and courts, perhaps its main instantiations. We show for example how courts have used militant democracy ideas to ban parties for antidemocratic ends in contexts like Cambodia and Thailand, how the Supreme Court nullified the power of an opposition-held legislature in Venezuela, and how gender quotas and hate speech norms have helped to bolster Kagame’s authoritarian regime in Rwanda. We also have a chapter on constituent power, arguably the theoretical underpinning of modern constitutionalism. Here, for example, we study the use of a doctrine of unconstitutional constitutional amendment to eliminate presidential term limits by would-be autocrats, in a line of reasoning that has run through countries such as Bolivia, Honduras, and Nicaragua in Latin America. Finally, we look at recent attempts to abuse political constitutionalism and weak forms of judicial review, ranging from Hungary and Poland in Eastern Europe to Israel.

As the prior summary suggests, and as several of the commentators to this symposium note, we aim to draw on a wide range of contexts to make our argument. This includes not only some of the “usual suspects” but also a number of lesser studied cases, like Fiji, Rwanda, Cambodia, Nicaragua, and Thailand. Of necessity, however, the universe of cases we could discuss is limited, and many important contexts left undiscussed. We hope our book stands in part as an invitation to future work, particularly in the many countries we could not analyze in depth.

We agree with several of the commentators, including Scheppele, Cheung, and Tamir, that this book tackles only part of the problem – albeit an important part. Our book is one of several recent ones on democratic backsliding or erosion. Although Landau’s 2013 article on “Abusive Constitutionalism” focused on formal tools of change, we emphasize in our book that abusive constitutional change can take many forms, including not only the use of formal tools like amendment and replacement, but also judicial interpretation, informal change in political practice, and the passage of sub-constitutional laws. Cheung, in his excellent dissertation on “Abusive Legalism” and elsewhere, has pointed to the way that ordinary conceptions of the rule of law, like anti-corruption crusades, public order, and tax evasion, can and are abused by actors around the world. Our commentators rightly point out that the practice of democratic backsliding has many facets, and all of those aspects are well worth studying. Our aim here is not to survey the entire problem, but to focus on one of its aspects: the ways tools of liberal democracy can be twisted into anti-democratic weapons, often with surprising efficiency. Alongside others, we have written about other aspects of the problem elsewhere, both jointly and separately, and will do so again in future work. 

That said, we do think the aspect we are analyzing in Abusive Constitutional Borrowing is significant and close to the center of the problem, not merely peripheral or epiphenomenal. Authoritarian actors have learned to use tools of ordinary law to great effect. But the use of liberal democratic tools to undermine democracy carries particular dangers:  tools of this kind carry a presumptive telos or normativity that can make observers slower to notice or call out problems of abusive use.

Why this is true is a question we begin to explore in the book, though more work is surely needed on this topic.  There are several reasons abusive tactics may succeed in reducing the opposition of local and international observers to anti-democratic change:  local or international actors may suffer from a form of naivety or false consciousness, or motivated reason on the part that leads to the willing suspension of disbelief.  Alternatively, international actors may have commitments to comity and consistency, which can lead to a hesitancy to criticize plausible instances of democratic self-government.  We notice both sets of dynamics at play in various contexts, but do not explore the full range of circumstances in which dynamics of this kind are likely to arise.

What is clear, we suggest in the book, is that there are moments of high constitutional law and politics where autocrats lean on liberal democratic constitutionalism to carry out important regime goals, and in the process effectively wreck significant, antidemocratic transformations. In Cambodia, for instance, the high court’s decision to ban the opposition Rescue Party in 2017 by abusing militant democracy tools was no mere blip – it effectively eliminated the only opposition, which had nearly won control of Parliament in a shocking 2013 result. In the next election, the ruling party won all parliamentary seats, and a potential democratization effort was stymied. In several countries in Latin America, a bogus “right” to presidential reelection, distorted from both constitutional and human rights law, was wielded alongside doctrines like the unconstitutional constitutional amendment doctrine to allow presidents to remain in power indefinitely. Some, like Daniel Ortega in Nicaragua, remain there to this day, ruling over an increasingly authoritarian regime. In Venezuela, the Supreme Court, and then a sham-like Constituent Assembly, were the main tools used to repress the opposition-controlled Congress after the opposition won around two-thirds of the seats in 2015.  Thus, the opposition was denied any of the voice that it was able to win (with great difficulty) in the election, and a key counterbalance to the autocratic Nicholas Maduro was nullified. In Rwanda, hate speech laws have been used to imprison key opposition leaders, thus fending off potential challenges to Kagame. And the list goes on.

One of the goals of our book has been to develop a clear definition of “abuse.” As scholars such as Tamir suggest, there is a risk that the label of “abusive constitutionalism” may itself be abused, essentially used to delegitimize anything a commentator doesn’t like. For this reason, we tie our definition of abuse to intentional action that undermines a relatively thin definition of democracy focusing on the fairness of the electoral process. This kind of definition is well-known in political science, and also apparent in some recent work in law, such as Ginsburg and Huq’s How to Save a Constitutional Democracy. Even such a minimalist definition – which we call the democratic minimum core – cannot be too thin. Of necessity, it includes commitment to at least a core set of rights necessary for holding elections on a level playing field; so too a commitment to the basic rule of law. There are many ways for modern elections to be rigged, and sophisticated actors often do their work well before the election, leveraging their control of institutions like the media and the courts. But a narrower definition is helpful in providing a relatively clear yardstick for abuse. So too, it ties abuse to values that autocrats themselves pay lip service to honoring. Many would-be autocrats seem to follow Hungary’s Viktor Orban in attacking “liberalism” as a “western” imposition, but most still claim to be democrats.

Tamir disputes our interpretation of the Israeli case, suggesting that we may be overstating the threat that Benjamin Netanyahu, and in particular his allies’ proposal for a broad Knesset override of judicial decisions, may have posed to constitutional democracy. The cases in our book lie on a spectrum, and we have tried to be careful in describing “close” versus “clear cases. Some involve mainly threats to liberal values, where the threat to democracy is less clear. That is the case with the movement of “memory laws” to contexts like Poland and Russia. Others involve more disputed threats to democracy – the consistent judicial banning of Thaksin and his allies in Thailand, for instance, is murky despite ending in a military coup, because Thaksin himself posed plausible threats to democracy.

Yet we still characterize Israel as an act of “attempted” abusive constitutional borrowing. The threat to democracy may not have been as severe as that found in some other contexts in the book. And the threat of course did not stem from the mere consideration of a Canadian-style override in Israel – as we emphasize, there have been several proposals over time, and some of them were based on good-faith discussion of constitutional roles. Several things seem to us to set the most recent effort of Netanyahu apart. The first is a general context in which some scholars – not all, as Tamir emphasizes – have sounded alarms about a series of moves that seemed to undermine Israeli democracy. The second is that the most obvious aim of the move was to insulate a bill that in turn would have given Netanyahu immunity from prosecution for an ongoing criminal corruption trial, which seems to us to go close to the heart of the fairness of the electoral process. Netanyahu is, as Tamir notes, no longer in power, at least for the moment. We would note, however, that would-be autocrats are sometimes more dangerous upon a return to power – witness Orban. And even if Israel escapes significant danger to its democratic order, it still may be what Ginsburg and Huq have called a “near miss.”

More generally, Tamir raises a concern, also emphasized by Mark Tushnet elsewhere, that we may be developing our characterization on too thin a record – a universe of relatively cosmopolitan, English-speaking scholars who see only one side of a dispute. We recognize the concern and take this critique seriously. In some cases, we were able to diffuse it by relying on deep knowledge of individual contexts and the use of primary sources – this is likely true, for instance, of Landau’s knowledge of contexts like Venezuela and Ecuador in Latin America. We do not, of course, have that knowledge for every case studied in the book. But in each case, we tried to rely on a multiplicity of scholars, and ones with a variety of perspectives. In analyzing Poland, for example, we relied not only on scholars like Wojciech Sadurski who have written knowledgeable texts critiquing the regime, but also those like Adam Czarnota who have developed a more qualified take on the dangers to democracy posed by recent changes in Poland.

Scheppele raises a different concern with our yardstick of abuse – she argues that it may be too narrow and thus too open to manipulation by would-be autocrats. Of course, we agree with Scheppele that a list-like approach is completely inadequate, for the reasons she has identified. Analyzing the degradation of the democratic minimum core is difficult and requires close attention to constitutional and sub-constitutional changes in a particular context. Some of our recommendations for reform in fact fall along these lines, as we call for a more legal realist, and more holistic, response from transnational and international audiences and institutions to the threat posed by abusive constitutional borrowing.  But we also think that a minimal conception of democracy, one focused on the electoral sphere, is the right yardstick. A broader one, as we have noted, risks undermining moral and analytic clarity about the meaning of the core concept of abuse. And it may freeze the kind of experimentation – not mimicry, but experimentation – that is necessary to rejuvenate liberal democratic constitutions.

Finally, Scheppele argues that “borrowing” may not be the right term for the phenomenon we describe. She prefers “migration.” We disagree. Borrowing (like migration) is a metaphor, and imperfectly captures the idea of liberal democratic (mis)appropriation we have in mind. But migration in particular underplays the agency involved in the process. Ideas do not simply make their way to new contexts. They are appropriated by authoritarians, who draw on them as inspiration and/or justification for anti-democratic moves. Virtually all legal borrowing involves mutation in the norms being borrowed. The difference with abusive forms of borrowing is that they carry out these mutations – for instance, selectivity in what is being borrowed, or transplantation to a new context where the norm works differently – precisely to maximize antidemocratic impact.  And they do so in ways that trade off both continuities and discontinuities between old and new uses and contexts.

We once again which to express our gratitude towards our commentators for their generous and thoughtful comments. We hope we have helped to spark a conversation about the many ways in which liberal democratic norms can be abused to attack democracy and the role that the public law community might play in facilitating or stopping that abuse.

Rosalind Dixon is Professor of Law at the University of New South Wales, Faculty of Law. You can reach her by e-mail at rosalind.dixon@unsw.edu.au.

David Landau is Mason Ladd Professor & Associate Dean for International Programs at Florida State University. You can reach him by e-mail at dlandau@law.fsu.edu.