This section briefly discusses democratic decay as the organising concept of this Resource.
Provenance of the term
Democratic decay has been used by various scholars to capture the creeping deterioration of democratic rule. Marina Ottaway in her 2013 book on the rise of semi-authoritarianism, used the term to describe the decline of democratic governance in Venezuela. Other scholars, such as David Landau, Aziz Huq and Tom Ginsburg, have used the term as a broad rubric, alongside cognate terms such as 'democratic erosion'. The term has also been used by scholars such as William Prillaman (concerning Latin America), and in scholarship concerning the prospects of democratisation worldwide.
DEFINITION OF DEMOCRATIC DECAY
Here, the term is used in a specific sense. 'Democratic decay' is used to characterise the phenomenon of democratic degradation over time, as opposed to rapid democratic breakdown through a coup d'état or invasion. The thumbnail definition is
the incremental degradation of the structures and substance
of liberal constitutional democracy.
'Incremental' refers to the subtle, step-by-step hollowing out of democratic governance. 'Structures' refers to democratic institutions such as courts, human rights commissions and ombudsmen, as well as media and NGOs. 'Substance' refers to the 'soft matter' of democratic governance, including public faith in democratic rule and the willingness of political actors to play by the rules of the game. As the Concept Index indicates, lawyers have tended to be more focused on structures, political scientists and other social scientists on substance, although there is significant overlap.
More detail is provided below. You can find more detail on the definition of democratic decay, especially a conference paper on 'Diagnosing Democratic Decay', in the About Tom section. See the Concept Map to get a quick sense of how the democratic decay concept relates to the overall conceptual terrain.
A simple metaphor for a complex reality
'Decay', like many of the concepts below, uses a term for a physical process of degeneration as a broad metaphor for social, political and constitutional processes of change that are highly complex, and which follow different patterns, configurations of actors, and historical and socio-economic contexts and drivers in different states. There is no suggestion here that there is a simple equation, with democracy as a tooth, and authoritarianism (or populism) as a kind of sugar rotting it away.
The paradigm cases
That said, it is clear that in a range of states authoritarian-leaning governments, albeit democratically elected, have actively sought to hollow out democratic structures - including courts, media, NGOs - and to entrench themselves in power for the long term. As Kim Lane Scheppele argues, Hungary is perhaps the paradigmatic case (see 'autocratic legalism' and 'rule of law backsliding' in the Concept Index), but its trajectory has been preceded by states such as Venezuela, and is now being emulated in states such as Poland and Romania. Yet, even concepts strongly focused on such 'masterplan' exercises in degrading or ending democratic governance, such as 'autocratic legalism', 'constitutional retrogression' and 'constitutional capture', remain cognisant of the fact that these processes are couched in a wider socio-political context, often featuring a decline in public faith in democracy and political adherence to democratic norms.
Cases beyond the paradigm
In other states we see, not a 'masterplan', but a form of reactionary, opportunistic undermining of democratic structures by political actors — as seen in South Africa under former President Zuma, where attacks against democratic organs, such as the Constitutional Court or anti-corruption investigators, tended to be haphazard, somewhat unplanned, and focused on the perceived 'enemy of the moment'. In states such as Brazil we see democracy undermined not only by the executive — if one accepts that impeachment of President Rousseff constituted a 'constitutional coup' (see the Concept Index) — but also a highly independent yet corrupt and self-serving judiciary and a problematic Supreme Court, some judges of which have close ties to political actors.
In the USA, perceived negative developments at the federal level under the Trump administration might be viewed as closer to the 'opportunism' under Zuma in South Africa than the clear 'masterplan' seen in states such as Hungary and Poland. However, some similar elements are present, e.g. attempts to appoint unsuitable and highly partisan candidates to the federal courts. It is at the state level in the USA that something closer to a masterplan appears, with clear attempts to skew electoral law to partisan advantage — seen in cases of extreme gerrymandering (e.g. Pennsylvania, Wisconsin) and restrictive voter ID laws - and instances of attacks on courts that have attempted to address such matters, e.g. unsuccessful political moves to impeach the Supreme Court of Pennsylvania after a judgment addressing extreme gerrymandering in that state. It is important here to recognise that such developments have not been led by executives but by lawmakers.
THE WIDER CONTEXT
While the majority of the existing literature by legal scholars focuses on the ways in which law is 'weaponised' to hollow out democratic governance, it is clear that broad socio-economic factors and cultural factors are crucial to understanding most cases of democratic decay. Where the democratic system fails to be responsive to the public, is captured by elite interests, or tolerates extreme inequality, democracy as an idea is tarnished. In some cases, dramatic demographic change can provoke a counter-reaction against openness, or an opening for anti-democratic actors to exploit. Most importantly, it is important to recognise that the seeds of the widespread deterioration of democratic rule worldwide were sown long ago in many states, but it has taken time for the anti-democratic shift to develop. Perhaps even more important factors include whether a state has previously suffered authoritarian rule (e.g. Brazil, Spain) or not (e.g. the USA).
Making useful distinctions
As well as distinguishing between paradigm and non-paradigm cases, the approach to Democratic Decay here rests on three central distinctions:
(i) The distinction between democratic and non-democratic states: Although the line between democratic and non-democratic states can be evanescent, this Resource employs widely recognised indices (Freedom House, Economist Intelligence Unit, POLITY etc) as a rough guide to demarcating democratic and non-democratic states. The Resource broadly follows Freedom House's simple tripartite categorisation between Free states (democracies), Partly Free states (hybrid regimes) and Not Free states (authoritarian regimes). However, as more and more states succumb to democratic decay, categorisation becomes harder as developments in a given state raise question marks regarding its true nature.
(ii) The distinction between long-established and younger democracies: It appears important to distinguish between states suffering democratic decay and states suffering problematic democratisation processes (i.e. after transitioning from non-democratic rule). It appears sensible to draw a clear distinction between democratic decay in a long-established democracy such as the US, for example, and the problems experienced in contemporary Tunisia, whose democratic transition took place in 2014. Between these extremes lie a range of states. Germany may be considered a long-established democracy, at the 70-year mark, but the question becomes more difficult in relation to states such as Brazil (33 years post-transition), Poland (29 years) or South Africa (24 years).
(iii) The distinction between highly legalistic and less legalistic contexts: The level of legalism, and sophistication in the use of the law to hollow out democratic governance, differs from state to state and across world regions. The 'paradigm' case of Hungary points to a highly sophisticated suite of legal manoeuvres designed to achieve the required result in a subtle and incremental manner. In other states, the approach can be less legalistic and less subtle: the misuse of the impeachment process to remove President Rousseff in Brazil is an example, as is former South African President Zuma's tendency to launch verbal attacks on independent institutions, or legislation aimed at hobbling them, with scant veneer of constitutional or legal propriety.
Democratic decay, as a concept, therefore works as a sort of 'meta-concept' that relates not only to express executive attacks on the structures of democratic government, but also more diffuse undermining of democratic structures by a variety of other political actors, and to the wider and longer-term processes that undermine democratic systems, such as declining faith in democracy and a declining willingness of politicians to 'play by the rules of the game', captured by concepts such as 'constitutional rot' and 'democratic deconsolidation'. See the Concept Map to get a quick sense of the overall conceptual terrain.
Although democratic decay is a rather broad concept, the Democratic Decay project remains focused on how public law (encompassing constitutional law, international law, and transnational law) is employed to degrade democratic systems, and on what solutions may be found within public law. These questions will be addressed in the Law Index. It remains important to emphasise that, while law is not the sole factor in democratic decay or in searching for solution, an appreciation of how law functions is vital to a fuller understanding of democratic decay as a phenomenon and in the search for solutions. While many processes and solutions will inevitably lie outside the law, law matters, and public lawyers can provide 'added value' in understanding and addressing this phenomenon (or related phenomena).