Beyond Comparative Constitutionalism: Abusive Legal Borrowing

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).

 Alvin Y.H. Cheung

The street finds its own uses for things.

- William Gibson, Burning Chrome

There is broad consensus that liberal democracy is in retreat, despite the spread and apparent triumph of liberal democratic institutions and ideas in the late 20^th Century.  Professors Dixon and Landau turn this proposition on its head: they argue that autocrats are increasingly adopting ideas and institutions of liberal democratic origin and deploying them in anti-democratic ways.  Abusive Constitutional Borrowing provides a careful, systematic articulation of that argument, and offers some promising (if slightly tentative) suggestions on what to do about it.  The true value of the book, however, is far greater: the sceptical approach Landau and Dixon adopt towards constitutional borrowing can be fruitfully applied outside the realm of constitutions and constituionalism.

Although the entirety of Abusive Constitutional Borrowing merits careful reading, I shall focus on two aspects of the book that deserve particular mention.  First, the book persuasively lays out a framework for thinking about different types of abusive constitutional borrowing, centred on a “democratic minimum core.”  In the context of rule of law indices, Mila Versteeg and Tom Ginsburg’s study suggests that a major failing of such indices is that their conception of the rule of law overlaps with other factors, such as human rights and the absence of corruption.  A relatively parsimonious conception of democracy – a set of factors that are necessary (if perhaps not sufficient) for democracies to function – will be more robust, or at least more likely to attract consensus, than an everything-but-the-kitchen-sink account.

Second, Abusive Constitutional Borrowing advocates a more critical approach to the practice of comparative constitutional law, an approach Dixon and Landau refer to as “global legal realism.”  Abusive practices, they argue, take advantage of the formalist and acontextual approach that continues to dominate the transnational rule-of-law industry – an approach that Kim Lane Scheppele has called a “checklist” approach.  Any effective response to abusive constitutional borrowing will therefore have to be more sensitive to context – both in terms of how discrete norms are implemented, and how they function as part of a legal system.  Put more bluntly, practitioners of comparative constitutionalism must learn to think like autocrats.  This practice of adversarial thinking – referred to in information security as “red teaming” – is an accepted part of building computer infrastructure; Abusive Constitutional Borrowing suggests that it should also be adopted in developing constitutional infrastructure.

I now turn to consider the subtitle, “Legal Globalization and the Subversion of Liberal Democracy.”  The phenomena that Dixon and Landau highlight in their introductory chapter have led not only to a transnational constitutional order, but to a “transnational legal order” (p 1, emphasis mine).  As Dixon and Landau argue, that transnational legal order has inspired creative anti-democratic behaviour.  However, that creativity has not been confined to abusive constitutional borrowing.

Three examples may help illustrate the point.  First, the use of defamation litigation against government critics – a practice commonly associated with Singapore – has spread to other semi-autocracies; in recent years Poland and Brazil have the tactic against (among others) Professors Wojciech Sadurski and Conrado Hübner Mendes, respectively.  Second, most of the media and electoral reforms in Hungary that Scheppele documents in “The Rule of Law and the Frankenstate” did not involve changes to the constitution.  In particular, her account of the creation of a new media regulator with superficial similarities to media councils elsewhere in Europe demonstrates that wilfully perverse transplantation is not confined to constitutional norms or institutions.  Third, the mere fact that China’s Anti-Monopoly Law (“AML”) was modelled on European or American legislation offers no insight into how the AML regime actually operates.  As Angela Zhang has argued in Chinese Antitrust Exceptionalism, the PRC’s radically different institutional and bureaucratic context has resulted in a very different system – one that Beijing has used to further its own geopolitical objectives.

This type of abusive legal borrowing may well be even more pernicious than abusive constitutional borrowing (an argument I develop at greater length in my forthcoming article Legal Gaslighting).  First, the presence of constitutional change is likely to attract attention in a way that the alteration of (for instance) criteria for company registration might not.  Second, the purpose of constitutional amendments is harder to disguise than amendments to “ordinary” law.  Third, changes to “ordinary” law have the potential to affect many more interactions between citizens and the State; to return to the example of companies registration, the political capture of Hong Kong’s Companies Registry (prior to Beijing’s imposition of the “National Security Law” in 2020) had the practical effect of impeding opposition parties’ ability to open bank accounts or rent office premises.

The true value of Abusive Constitutional Borrowing does not lie merely in the light it sheds on abusive constitutional borrowing.  As the examples above suggest, sophisticated autocrats are increasingly supplementing, if not replacing, abusive constitutional borrowing with other forms of abusive legal borrowing.  Nonetheless, the latter relies on the same transnational blind spots of formalism and acontextualism that has empowered the former, and Abusive Constitutional Borrowing provides a vocabulary and analytical approach that can be applied to both.  As such, the book is an important contribution not only to comparative constitutional law, but to the nascent field of comparative public law.

Alvin Y.H. Cheung (alvin.cheung@law.nyu.edu) is a SSHRC Postdoctoral Fellow at McGill University Faculty of Law and a Non-Resident Affiliate of NYU’s US-Asia Law Institute.