Can Abusive Borrowing Itself Be Abusive?

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).

 Oren Tamir

Professors Rosalind Dixon & David Landau’s book Abusive Constitutional Borrowing: Legal Globalization and the Subversion of Liberal Democracy is terrific, and I expect it to quickly become a central—perhaps THE central—reference point for research on the topic of what we have come to call, among many other available labels, “constitutional retrogression” or “democratic backsliding.” That the book is so great and insightful, and a pleasure to read on top of that, is absolutely no surprise given the identity of its authors. Indeed, no one who works in the field of comparative constitutional law (or, perhaps better, comparative constitutional studies) could miss Dixon & Landau’s extensive and consistently excellent work, both individually and as co-authors. I personally find myself regularly going back to Dixon & Landau’s impressive corpus of work, which would now include Abusive Constitutional Borrowing, for clarity, insight, and inspiration. And I should take the opportunity presented by this symposium to say that I’m immensely grateful for the leadership role that Dixon & Landau take in the community of comparative constitutional law/studies, and especially their interest in, and willingness to engage with, those of us who are beginning to chart our own path in the field.

I take Abusive Constitutional Borrowing to be making two primary contributions to the study of the phenomenon of democratic backsliding or constitutional retrogression. The first contribution is what I think of as identifying the target of concern in discussions of this topic and, importantly, significantly narrowing it down. Dixon & Landau argue here that we should get worried when, and only when, what they call the “minimum core” of constitutional democracy is under real strain. This is essentially the adoption, as Dixon & Landau suitably acknowledge, of a rather “thin” (even if not an extremely thin) definition of constitutional democracy as the relevant target. That definition includes regular, free, and fair multi-party elections, political rights and freedoms for all citizens, and a set of institutional checks and balances. And it leaves outside the scope of discussion in the context of constitutional retrogression or democratic backsliding “thicker” conceptions of what constitutional democracy might be thought to entail, and particularly conceptions that incorporate various “goods” associated with liberal constitutional democracy (including the rule of law as well as individual rights to freedom, dignity, and equality beyond the political sphere).

The book’s second contribution—and the one that gets most of the explicit focus in it (and of course give it its title)—is not about the target of concern but the technologies through which our concerns might become realized. Here Dixon & Landau tell us (building on their own previous work as well on crucial work by another leader in the field of comparative constitutional law/studies, and a co-participant in this book symposium, Professor Kim Lane Scheppele) that a key way that the “minimum core” of constitutional democracy is indeed being jeopardized, and constitutional retrogression or democratic backsliding occurs, is through a specific method: that of abusive constitutional borrowing. In Dixon & Landau’s overarching narrative, our time has witnessed the appearance of many ambitious, would-be autocrats around the world who are plausibly understood as interested in dramatically diminishing the “minimum core” of constitutional democracy and causing constitutional retrogression or democratic backsliding. But to do that, these would-be autocrats need not explicitly and transparently work outside of the canon of constitutional democracy. Rather, they can do so from within, by strategically appropriating the designs, concepts, and doctrines of constitutional democracy itself to advance their desired authoritarian projects. On the surface, these would-be autocrats certainly seem to talk the talk of constitutional democracy. Once we drill down below the surface level, though, we realize that they are far from willing to walk the walk of constitutional democracy. Their use of these concepts, designs, and doctrines is extremely shallow. As Dixon & Landau say, sometimes it’s pure sham. Sometimes it’s selective and acontextual. And sometimes it’s “anti-purposive.”

Demonstrating the deep expertise and breadth of knowledge of its authors, the book canvasses incredibly expansive (honestly, it can’t get more impressive than that) case studies from around the world to illustrate the effect of abusive constitutional borrowing. Among the countries Dixon & Landau discuss are Rwanda, Fiji, Hungary, Venezuela, Ecuador, Poland, Colombia, and—a jurisdiction that I will come back to soon—Israel. And among the designs, concepts, and doctrines of constitutional democracy that have been exposed to abusive borrowing on Dixon & Landau’s telling are “militant democracy,” the doctrine of “unconstitutional constitutional amendments,” and—an idea that I will again come back to—“weak-form” judicial review.

A reaction to a book so learned and rich could be taken in many different directions. In this entry I will focus however on three overarching issues that became salient to me as I was reading the book, and which I hope will push the academic discussion on the topic of constitutional retrogression and democratic backsliding toward fruitful paths going forward.

Is Abusive Borrowing an Effective Technology?

First off, as I summarized above, Dixon & Landau’s claim about abusive borrowing is in an important respect a causal one. In other words, they want to convince us that abusive borrowing is in significant part what makes the task of straining the democratic “minimum core” and creating constitutional retrogression by would-be authoritarians possible. Or, at a minimum, they want to show us that abusive borrowing makes these processes much easier for authoritarians. But is this causal story really convincing? To support their claim that abusive borrowing does do the work they attribute to it, Dixon & Landau put a lot of emphasis on the “rhetoric of legitimation” that would-be authoritarians trigger by appropriating strategically constitutional democratic doctrines, concepts, and designs strategically. It seems apt to ask, however, who exactly is fooled by this strategic, shallow employment of the language of constitutional democracy?

I think it’s useful to distinguish here between two types of relevant audiences. The first is local audiences in the country where processes of constitutional retrogression and erosion of the democratic “minimum core” is potentially occurring. But, upon reflection, it is unclear why that audience be tricked by the borrowing. For one thing, local audiences—especially non-technical members of it and non-legal professionals—probably care less about specific labels or technologies and more about ultimate results. We, lawyers, often tend to exaggerate how much legal labels matter as such rather than the “politics of law.” Even if, however, local audiences do care about labels and concepts, it is unclear why their analysis would ever stop at the shallow level that is supposed to do the trick. After all, these local audiences have the best available information to evaluate what might really going on behind the concepts, designs, or doctrines of constitutional democracy that are being employed. And, since at least some members of the local audience are likely to be critical of the regime, and the stakes of the label are clear for them, they have obvious incentives to go beyond the shallow or surface borrowing and pierce the rhetorical veil. In fact, precisely because they resist the new regime that relies on constitutional democracy rhetoric—often adamantly so—they might have incentives to exaggerate how much the borrowing is abusive rather than something that is more ambiguous and within the bounds of reasonable disagreement.   

Another audience of relevance here is obviously the international one. And on its face, the causal story Dixon & Landau tell us about the effectiveness of abusive borrowing does seem more convincing here, precisely because the international audience might be less informed about local political dynamics and less intensely invested in domestic constitutional politics. But even here the story strikes me as more complex. While information gaps might be substantial, at the point in time in which the international community gets involved, it usually has established at least some contact with the local audience, which is most likely to call it into the scene in the first place. And the international community itself has interests that might be aligned—some would say even more intensified—than the domestic audiences that supposedly draw them in. Again, in such conditions, the concern might not be that the borrowing tricks international audiences and is abusive, but rather that the international community will again over-frame what’s really going on.

Of course, a central worry that Dixon & Landau raise is that the international community—and even specific domestic communities—are too formalistic in their approach. On this view, we’ve developed a kind of general language or gestalt of constitutional democracy that works on an abstract level, as Kim Lane Scheppele has argued, like a rigid checklist. To the extent this is the case, it is clearly troubling and will deny us of what is needed to analyze the complex processes of constitutional retrogression and democratic backsliding. But I found myself wondering again, is this really the case? It seems to me that we’re already all “global realists” today, as Dixon & Landau supposedly want us to become. I may not be a representative “sample,” so to speak, but all the serious work that I’ve encountered on the topic is already alert to the need to go beyond labels and incorporate a multitude of variables when we assess processes of constitutional retrogression and democratic backsliding. My concern is often not that the comparative constitutional law/studies community isn’t being realist enough. It is that our community has developed over-confidence in its ability to analyze these processes.

To put the point more strongly than is perhaps justified: I found myself ultimately wondering if the abusive borrowing issue isn’t a sideshow in the overall dynamic of constitutional retrogression or democratic backsliding. It is either that the borrowing is clearly a sham, such that it doesn’t trick or fool anybody. The only “work” that the borrowing does in such scenarios is as a rhetorical trope that is intended to degrade constitutional democracy itself—a kind of transparent posture that is meant to cheapen, or make a joke of, constitutional democracy (especially in times of nationalist populism and backlash against cosmopolitanism). Of course, to some, this may be troubling in and of itself. But it is not causal in the sense Dixon & Landau intend. Alternatively, we’re in the land of complexity and ambiguity of processes of constitutional retrogression where we already embrace a realist lens. Here the “borrowing” itself isn’t tricky. What’s tricky is figuring out with confidence and care what is going on in the jurisdiction of interest, and whether what we’re seeing is indeed constitutional retrogression or backsliding. It’s the phenomenon of constitutional retrogression and backsliding that is tricky.

The Problem of Over-Inclusiveness

I have raised above the potential concern that domestic and international audiences may have an interest in exaggerating and over-framing processes of retrogression, backsliding, and abusive borrowing. That is, that they would label things as abusive borrowing or constitutional retrogression even thought they might not be. Or that justify a more careful treatment. This is the setup for my next question about the book, which is this: can the book help us prevent this tendency? Or is the book prone to over-inclusiveness itself? To be sure, Dixon & Landau’s methodology and analytical framework are in principle alert to the potential risk of over-inclusiveness. Methodologically, Dixon & Landau speak decisively, as I’ve emphasized, of the need to be realists rather than formalists and to go beyond mere labels. If their call is not for modesty, it is at least that we be the best, most sophisticated constitutional lawyers that we can be. And analytically, Dixon & Landau embrace two important minimizing moves. First, as I summarized before, they narrow down their target by focusing only on the “minimum core” of constitutional democracy rather than on thicker conceptions that include the “goods” of liberalism or rule of law. And second, Dixon & Landau’s focus is on abusive borrowing that is accompanied by intent or, as they say, “bad faith” to erode the “minimum core.”

Both these moves strike me as exactly right for largely the same reasons that Dixon & Landau themselves suggest. And as important strategies to avoid over-inclusiveness. The focus only on the “minimum core” seems correct since thicker conceptions are more strongly—and reasonably—disputed. And the move to zoom-in on “bad faith” seems important, too, because focusing on effect alone would not be helpful. Many things can harm the “minimum core” of constitutional democracy but are not part of a deliberate move of constitutional retrogression.

At the end of the day, however, I still worry that Dixon & Landau’s discussion has a systemic potential to fall into the trap of misdiagnosing the relevant processes. My example here is the Israeli case study with which I’m more familiar. To be sure, things are looking better in Israel these days since former prime minister Binyamin Netanyahu was ousted. But Dixon & Landau’s book was published before that development. And they worried that Israel was a case of abusive borrowing then, and specifically the abuse of the concept of “weak-form” review—the idea that judicial review should become practically less final and open to political revision in the short-term.

Dixon & Landau are certainly not wrong to consider the option. Israel has indeed exemplified some of the signs that would cause alert of constitutional retrogression and risks to the democratic “minimum core.” It walked and talked like a duck, so to speak. A very brief and partial sketch is this: Israel has seen the rise of populist rhetoric. There have been attacks on civil society. There have been moreover some important legal changes—most crucially the introduction of the Basic-Law: Israel as the Nation State of the Jewish People, which seem to chip away at some important features of Israel’s commitment to equality. And, most importantly, there has been a leader, Netanyahu, at the helm for a long time who has been driving these trends. What’s more, Netanyahu’s party seem to have been completely hollowed out from any meaningful politician inside who can rival him, and to become an institutionalized embodiment of Netanyahu himself (supplemented by the rise of Bibism in Israel). And Netanyahu had been moreover entangled in criminal proceedings, which meant, and still means, that he might have to spend time in jail.

On this backdrop, and given moreover how the courts in Israel, and the Supreme Court especially, have often been associated with liberalizing and constitutionalist forces in Israel, any move against them, including employing the idea of “weak-form” review, may indeed be a cause of concern. And the fact that at some point Netanyahu’s coalition tried to bundle this move to weaken the Court and introduce “weak-form” review in Israel with legislation that would provide Netanyahu personal immunity for his criminal charges seems doubly suspicious. Indeed, it is exactly this “bundling” of weak form review with immunity for Netanyahu that causes Dixon & Landau to describe Israel as a case of potential abusive borrowing—the “potential” here because the move never in fact transpired.

But Dixon & Landau don’t take seriously enough, I think, an alternative interpretation of what’s been going on in Israel. That interpretation emphasizes significant complications in the abusive borrowing or constitutional retrogression story. Again, a sketch of that alternative interpretation is this: First, this interpretation highlights that Israel never seen any serious attacks to the “democratic minimum” core. Most importantly, there was no genuine tinkering with election rules as we’ve seen in so many other countries experiencing constitutional retrogression, as Dixon & Landau’s book meticulously details. Second, this interpretation also highlights that most of the issues or dangers that Dixon & Landau suggest were merely proposals that didn’t in the end transpire, much like the ultimate attempt to give Netanyahu immunity. This is partly because Netanyahu’s coalition was always importantly fragmentary, rather than unified—again, a point against the danger to the “minimum core” account. Third, this interpretation also highlights something that Dixon & Landau don’t mention, which is that there were (and still are) respectable voices within Israel who have been critical toward Netanyahu’s criminal indictment. Finally, this interpretation takes a position that, first, judicial review in Israel has gone too far toward pursuing a liberal, cosmopolitan vision rather than reflect a more nationalist, Jewish understanding of constitutionalism; and second, that despite the criticism against judicial review being voiced for quite some time, there was zero willingness by the other side to consider meaningful reforms to resolve it, including specifically by weakening judicial review. To the contrary, judicial review in Israel has gone from strength to strength.

In short, what this alternative interpretation essentially suggests is that Israel wasn’t going through a process of constitutional retrogression and jeopardy to the “minimum core” of constitutional democracy. And that “weak-form” review isn’t abusive borrowing. Rather, at most Israel was experiencing a transition within the project of constitutional democracy itself that was attempted to be achieved through aggressive, what we have come to call, “hardball” means. That “hardball” was to take advantage of the interests of Netanyahu’s personal entanglement with criminal proceedings (and an effective leader who can hold a complex coalition together) to achieve a meaningful change in how judicial review is conducted. Obviously, that change may not be a normatively attractive transition (more on that soon). But the important thing to note for now is that it is a transition that is different in kind than what Dixon & Landau want to capture. More specifically, it seems exactly a transition relating to the “thicker” conceptions of constitutional democracy that Dixon & Landau want to leave to the side: from one version of liberal constitutionalist regime (which is more generous in the bundle of liberalist “goods” it provides) to a different one (which is more modest or “cheap” in distributing liberal “goods,” especially to non-Jews).

An interesting question that arises, then, is this: what causes Dixon & Landau to be over-inclusive? And to not take this alternative interpretation of Israeli politics seriously enough? Partly, I think the reason is methodological. While Dixon & Landau aim to be careful and realistic, I don’t think that they have fully internalized their own methodological commitments at least in the context of their discussion of Israel. For example, I think the concept of a “minimum core” falls quite quickly by the wayside in their analysis of the Israeli case. The fact that there was no real tinkering with election rules in Israel should give the analyst committed to the “minimum core” concept more pause. Dixon & Landau also cite only one clear source that provides some clues about what I have called the “alternative interpretation” of Israeli constitutional politics. In my view, though, a truly realistic and contextual approach would have called for something beyond that to pursue the crumbs further. I should say that the Israeli case might be especially tricky. More specifically, there may be a systemic skew in the information that is available for comparativists about what’s been going on in Israel. The reason is that most of the Israelis who work in the field of comparative constitutional law and write about it to international audiences are not only objectors of the until recently ascendant Right wing regime in Israel but also quite committed to a de facto strong form of judicial constitutionalism. In other words, they may have an interest in bolstering their claim about what’s going on in Israel to safeguard and strengthen judicial constitutionalism there (or may be doing so unconsciously). Alternatively, those who write to international audiences and are more skeptical of de facto strong judicial constitutionalism in Israel, may be censoring or even falsifying their views, because they believe that the abusive borrowing language may prevent things from getting worst in Israel (more on that soon). Dixon & Landau’s discussion of Israel in the book can be seen as simply reflecting this skew.

There is however more. I think that some of the reason for the over-inclusiveness also stems from the analytic framework Dixon & Landau use, and not only from methodological challenges. What the discussion of Israel suggests to me is that Dixon & Landau interpret the “bad faith” requirement for abusive borrowing they themselves justly introduce too liberally. More specifically, they rely strongly on what we can think of as procedural criteria—including especially the procedural regularity and deliberativeness of processes of political reform—rather than on more political and substantive criteria. Of course, the attraction to procedure is clear. Among other things, procedure may give an image of the analyst’s political neutrality. Unfortunately, though, I don’t think procedure can replace substance and politics. To understand what’s really going on, we must address and confront politics directly; to note what exactly are the substantive plans of the ascendant regime and whether it is truly about eroding the “minimum core.”  

The Costs of Over-Inclusiveness and Misdiagnosis

Which leads me to my third and final question about Dixon & Landau’s book: what are the costs of this potential misdiagnosis and over-inclusiveness? Or, more generally, the costs of applying the framework of constitutional retrogression to phenomena that might not deserve the classification? Of course, one “cost” is immediately apparent. It’s the analytical cost, so to speak, of losing sight of what’s really happening in the world. And the ability of distinguishing between, on the one hand, situations that are more credibly about constitutional retrogression and a risk to the “minimum core” of constitutional democracy and, on the other hand, situations that more credibly signal transitions within the project of democratic constitutionalism (though perhaps through “hardball”).

If we however move to a more pragmatic and indeed political level, the costs of the potential misdiagnosis and over-inclusiveness become perhaps less clear. On this pragmatic and political level, we could say: why should we care? The important thing is to stop processes of change that are normatively unattractive and undesirable. And to the extent that the language of abusive borrowing (or, more directly, constitutional retrogression and democratic backsliding) does exactly that, that’s great.

This line of thought raises interesting questions about the nature of the scholarly enterprise as a general matter and in this context specifically. But bracketing this larger debate for present purposes and assuming that political advocacy is indeed an appropriate scholarly endeavor (in some form), the argument about the political efficacy of mischaracterizing things as abusive borrowing or constitutional retrogression surely has force. As I think Professor Tom Ginsburg of the University of Chicago once remarked in a conference I attended, tyrannophobia—the unjustified and exaggerated fear of tyranny (which exactly stems from over-inclusiveness and misdiagnosis of a political phenomenon)—may indeed be a useful political strategy. It energizes the opposition against forces that try to lead countries in less desirable directions, whether those directions are truly jeopardizing the minimum core or rather reflect unattractive transitions within the project of constitutional democracy. As such, it can prevent it from ultimately manifesting in the future (if you will, it’s a kind of a precautionary approach to the issue—one that embraces a “better safe than sorry” motto). I have suggested before that some Israeli writers may be working with this political logic in mind.

Nonetheless, this over-inclusiveness and misdiagnosis may also have serious costs. Indeed, I think that the inappropriate use of the abusive borrowing label may become abusive in and of itself. For one thing, just like these calls of tyrannophobia, constitutional retrogression, or abusive borrowing energize the opposition, so they can similarly energize the ascendant regime to be more and more aggressive. And in situations where the opposition isn’t ultimately strong enough to face off the threat (and there are limits to what the international community is willing to do to intervene), that seems bad overall. It may lead the political standoff to end in a worst place than it could. For another, and more interestingly perhaps, sometimes the over-inclusiveness and misdiagnosis can miss that the transition be conducive, perhaps in the more medium term, to more liberal and progressive goals. And even to the rehabilitation of constitutional democracy.

Though the story is complex, I tend to think that Israel in fact exemplified both types of risks. First, recall how the Netanyahu coalition ultimately collapsed. Simplifying greatly, it happened because members of that coalition itself have decided that they have had enough with Netanyahu and thought it’s his time to go. Importantly, though, these members were largely unmoved by calls that “weak-form” review dangers the “minimum core” of constitutional democracy. Rather, most of them are vigorous supporters of “weak-form” review (in at least some form). And they have been very likely put off by the rhetoric of abusive constitutionalism in relation to attempts to bring forth weak-form review. In other words, what explains Netanayahu’s fall in Israel is that it happened to be the case that, for these crucial coalition members, the dimension of “it’s Netanyahu’s time to go” was simply more dominant than the dimension of “pushing a change in the structure of judicial review.” But in a way, that’s lucky. We had no way of confidently knowing that this would ultimately be the case. On this view, Israel has been saved in large part despite the rhetoric of abusive borrowing or constitutional retrogression, not because of it.

In fact, it is also very possible that the calls for constitutional retrogression, democratic backsliding, and abusive borrowing story may still be harmful and abusive for Israel today. While Netanyahu is currently in the opposition, as of now, there is still some possibility of his return. For this risk to shrink and ultimately disappear, a crucial thing that needs to happen is that the current government will hold it together—until Netanyahu at least will more definitively fade away. But, as it happens, the prospect of the government’s survival may depend in key part on its ability to find compromise on the issue of judicial review. Again, as I mentioned before, some of the defectors of the past Netanyahu coalition who are members of the current government in Israel are deeply committed to reforming judicial review. And, precisely because the issue is crucial and still dominant for these former coalition members, there is now a governmental committee in charge of discussing the issue. By associating “weak-form” review with abusive borrowing or constitutional retrogression in Israel, those who do this are potentially making compromise harder to realize. Which, again, may be crucial for the stability of the current government and for Israel’s eventual democratic resilience.

Finally, the discussion so far assumed that de facto strong-form review is indeed conducive to a more liberal, progressive, and indeed constitutionalist Israel. But what if this is wrong? Indeed, there is another potential view about judicial review in Israel, even if it is less salient in outside circles. On this view, the achievements of the judiciary in Israel from a liberal, progressive, and constitutionalist perspective have been so far modest at best. Strong de facto judicial constitutionalism hasn’t really advanced these causes, if not directly harmed them. And as the recent developments in Israel strongly suggest, it had certainly failed to entrench liberal and progressive commitments at the level of culture and politics. On this view, then, weakening the judiciary in Israel may be an overall positive good. It might finally release many liberals and progressives in Israel from their current state of a deeply puzzling (and, on this view, harmful) judicial “overhang.” And it might lead them to focus more on the scene that really matters—democracy and politics itself. Of course, liberals and progressives in Israel may not get all they want in this way, certainly not in the short-term. But if Israel was never at a clear risk of exiting the “club” of constitutional democracies, or, at least, with the hopeful fading away of Netanyahu, the risk seems weaker and weaker, is it really fair for liberals and progressives to ask for more? And shouldn’t they consider what gains they can get by broadening their strategy beyond the courts? Alternatively, shouldn’t they internalize the lessons of the failure of strong de fact judicial constitutionalism to sustain and entrench liberal wins—as the recent unpleasantness has shown?

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Dixon & Landau have written a terrific book. If you’re interested in the topic of constitutional retrogression and democratic backsliding, you need to run, not walk to get it. The conservation obviously continues but it is much smarter, sharper, and more informed because of this important book.

Oren Tamir is an SJD candidate at Harvard Law School. He can be reached at otamir [at] sjd [dot] law [dot] harvard [dot] edu