The concepts covered in this Index are 'master concepts' in the sense that they attempt to capture overall processes and states of democratic decay. Relevant concepts which help to explain the overall conceptual terrain are also included (e.g. 'liberalism', 'quality of democracy'). Sub-concepts relating to specific uses of the law to attack or safeguard democratic rule will be included in the Law Index

 

index format

Each concept description contains:

Concept definition: Where possible, definitions have been sourced from the original creator of a particular concept. For long-standing concepts (e.g. constitutionalism, liberalism), resources such as Oxford handbooks have been used.

References: Ordinarily, the first source listed is the source of the definition. In many cases additional references have been provided to provide a sense of how a term is used by different authors and in different contexts. 

Notes: Notes provide additional detail on the concept, its use, and its relationship to adjacent or cognate concepts. In some cases, where a concept is closely tied to one text (e.g. journal article), the abstract of the article is provided. 

Hyperlinks: Where possible, hyperlinks have been added to the material cited. This will either provide direct access to the text or the URL where access can be sought.

Cross-references: Each concept definition ends with a list of cross-references to other relevant concepts in the Index. This helps to identify certain 'concept clusters'. 

Synonym cross-reference: In a minority of instances, where a concept is a synonym for another concept, or a sub-concept, it has been listed along with a reference to the synonym (e.g. the reference for 'majoritarian autocracy' directs you to the governing concept 'hybrid regime'). This is, again, to aid users to identify 'concept clusters'.

 

NAVIGATION

The Index is provided in alphabetical order, with two components: (i) a simple list; and (ii) a detailed list containing the full entry on each concept. Intra-page links allow you to quickly move between the simple list and the full text. For example, clicking 'abusive constitutionalism' brings you directly to the full text of the concept definition and description, and clicking 'Back to top' at the end of the concept description returns you to the simple list.

 

+ Abusive constitutionalism

+ Abusive legalism

+ Authoritarian backsliding

+ Authoritarian reversion

+ Authoritarianisation

+ Authoritarianism

+ Autocracy

+ Autocratic legalism

+ Bad faith constitutionalism

+ Competitive authoritarianism

+ Conservative democracy

+ Consolidation of democracy

+ Constitutional capture

+ Constitutional coup

+ Constitutional crisis

+ Constitutional decay

+ Constitutional dictatorship

+ Constitutional dismemberment

+ Constitutional endurance

+ Constitutional failure

+ Constitutional liberal democracy

+ Constitutional retrogression

+ Constitutional rot

+ Constitutionalism

+ Crisis of democracy

+ De-constitutionalism

+ Decline of democracy

+ Defensive democracy

+ Democracy

+ Democratic backsliding

+ Democratic breakdown

+ Democratic crisis

+ Democratic decay

+ Democratic deconsolidation

+ Democratic endurance

+ Democratic erosion

+ Democratic minimum core

+ Democratic quality

+ Democratic recession

+ Democratic resilience

+ Democratic survival

+ Democratorship

+ Dictablanda

+ Dictatorship

+ Disciplined democracy

+ Electoral authoritarianism

+ Electoral autocracy

+ Electoral democracy

+ Façade democracy

+ Fascism

+ Frankenstate

+ Hybrid regime

+ Illiberal democracy

+ Illiberalism

+ Keystone democracy

+ Legality

+ Liberal constitutional democracy

+ Liberalism

+ Liberationist democracy

+ Mafia State

+ Majoritarian autocracy

+ Militant democracy

+ Modern authoritarianism

+ Political decay

+ Politics of resentment

+ Populism

+ Populist constitutionalism

+ Post-liberal democracy

+ Quality of democracy

+ Reverse wave of democratisation

+ Rule by law

+ Rule of law

+ Rule of law backsliding

+ Self-sustaining democracy

+ Soft coup

+ Semi-authoritarianism

+ Stealth authoritarianism

+ Totalitarianism

+ Undemocratic liberalism
 


 

Definition  |   the use of mechanisms of constitutional change to erode the democratic order.

See: D Landau, 'Abusive Constitutionalism' (2013) 47 UC Davis Law Review 189

See: T Matsudaira, 'Abe’s Japan—Another Case of Abusive Constitutionalism' Int’l J. Const. L. Blog 23 September 2017

See: D Kosař & K Šipulová, 'The Strasbourg Court Meets Abusive Constitutionalism: Baka v. Hungary and the Rule of Law' (2018) 10(1) Hague Journal on the Rule of Law 83

See: Jorge González-Jácome, 'From abusive constitutionalism to a multilayered understanding of constitutionalism: Lessons from Latin America' (2017) 15(2) International Journal of Constitutional Law 447

Abstract (Landau 2013): This paper identifies an increasingly important phenomenon: the use of mechanisms of constitutional change to erode the democratic order. A rash of recent incidents in a diverse group of countries such as Hungary, Egypt, and Venezuela has shown that the tools of constitutional amendment and replacement can be used by would-be autocrats to undermine democracy with relative ease. Since military coups and other blatant ruptures in the constitutional order have fallen out of favor, actors instead rework the constitutional order with subtle changes in order to make themselves difficult to dislodge and to disable or pack courts and other accountability institutions. The resulting regimes continue to have elections and are not fully authoritarian, but they are significantly less democratic than they were previously. Even worse, the problem of abusive constitutionalism remains largely unresolved, since democratic defense mechanisms in both comparative constitutional law and international law are largely ineffective against it. Some of the mechanisms most relied upon in the literature - such as the German conception of militant democracy and the unconstitutional-constitutional amendments doctrine - are in fact either difficult to deploy against the threat of abusive constitutionalism or easily avoidable by would-be authoritarian actors. This Article suggests ways to reinforce democracy against these threats, while acknowledging the extreme difficulty of the task. The phenomenon of abusive comparative constitutional law and international law might best be leveraged to protect new democracies.

Note 1: This term relates to the use of constitutional law to undermine democracy. In this sense it is narrower than concepts such as 'autocratic legalism' and 'constitutional retrogression', which concern the use of law more widely. That said, there is a degree of overlap in the fact that some governments (e.g. the Polish government) have used ordinary law to effect de facto constitutional change, fundamentally altering how the political system operates by undermining the Constitutional Court and other accountability institutions.

Note 2: At the same time, this concept occupies terrain beyond concepts such as 'autocratic legalism' in that it could be said to cover both the use of constitutional amendment in the incremental, organised and subtle manner covered by these concepts, as well as more direct and individual instances of using constitutional change to effect a 'power grab' (see 'constitutional coup' below). Indeed, Landau in his article focuses on the paradigmatic example of autocratic legalism (Hungary) as well as the attempt by President Uribe in Colombia to remove the constitutional two-term limit on the presidency, which was quashed by the Colombian Constitutional Court in 2010 (which can be viewed as coming within the 'constitutional coup' concept).

Note 3: This concept has been employed by other scholars to analyse their own systems, e.g. abusive constitutionalism in Japan and Hungary: see the second and third listed sources above.

Note 4: The concept of 'abusive constitutionalism' has spawned sister concepts and sub-concepts, including the terms 'abusive legalism' (see below) and 'abusive impeachment' (to describe the use of the impeachment process to remove President Dilma Rousseff from power in  Brazil).

Note 5: Some scholars have criticised use of the term: see the fourth source listed above, which offers a critique of the concept from the Latin American perspective:

This article criticizes some of the implications of the recently coined notions of “abusive” and “authoritarian” constitutionalism. It argues that these terms assume that constitutions are merely higher law, and lose sight of the fact that they are also political documents that gain meaning due to the domestic and global power struggles. In light of this one-sided notion of constitutionalism, these terms generally imply that constitutions fail in places where amendment mechanisms are simply instruments for maintaining would-be autocrats in power. Reforms are thus necessary to limit amendment mechanisms. Focusing on the deployment of constituent power in Latin America during the 1990s—especially in Venezuela and Colombia—this article reacts against the fiction of “failed law” and uses the idea of constitutions-as-politics to show that amendment mechanisms in the region are related not only to the consolidation of power of authoritarian leaders, but also to domestic disputes around constitutional arrangements that limited democracy during the twentieth century and to the adoption of or resistance to new ideas about economic development in the transition from import substitution industrialization (ISI) to market-oriented reforms. The use of constituent power in Latin America has many faces and this article stresses the political debate, an issue largely forgotten by comparative constitutional scholars.

Cross-references

Autocratic legalism.

Constitutional capture.

Constitutional coup.

Constitutional retrogression.

Constitutional dismemberment.

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Definition  |   the use of ordinary law (i.e. sub-constitutional public law, and private law) by autocrats, in ways that seem consistent with formal and procedural aspects of rule of law, to frustrate the rule of law and consolidate power.

See: A Cheung, '"For my Enemies, the Law": Abusive Legalism'. Candidacy paper, JSD Program, NYU School of Law (15 January 2018)

Abstract (Cheung 2018):  This paper suggests that one response to growing scrutiny of authoritarian tactics is to turn to sub-constitutional public law, or private law. By using “ordinary” law in ways that seem consistent with formal and procedural aspects of rule of law, autocrats can nonetheless frustrate the rule of law and consolidate power, while also avoiding drawing unfavourable attention to that consolidation. I refer to this phenomenon as “abusive legalism.”

This paper makes three main contributions to the scholarship on authoritarianism. First, it focuses on the use of “ordinary,” sub-constitutional law as a means of maintaining autocratic power, an area which has been under-examined in existing work. Second, it makes the case for a normative critique of such tactics based on a relatively modest conception of the rule of law, rather than from the perspective of liberal democratic norms. Third, it offers a tentative framework for categorising and understanding abusive legalist tactics.

Note 1: Cheung's paper is a useful analysis in that he situates the concept of abusive legalism within the existing conceptual landscape, examining the term against (and differentiating it from) 'autocratic legalism' (see below), 'stealth authoritarianism' (see below), 'electoral authoritarianism' (see below), 'authoritarian constitutionalism' (see below), and the 'rule of law' (see below). 

Note 2: It is important to note that Cheung employs this term to the case-studies of Hong Kong and Singapore, which are not fully functioning democratic systems suffering democratic decay, but rather a slowly democratising system which has experienced a rollback of its freedoms (Hong Kong) and a stable 'hybrid regime' (Singapore; see below). 

Cross-references

Abusive constitutionalism.

Autocratic legalism.

Constitutional capture.

Constitutional coup.

Constitutional retrogression.

Constitutional dismemberment.

Hybrid regime.

— Rule of law.

Stealth authoritarianism.

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Definition  |   a decline in the freedoms provided to citizens in newly democratized states regardless of whether a regime change takes place. 

See: R Shirah, 'Authoritarian Backsliding in New Democracies' APSA 2012 Annual Meeting Paper

Abstract (Shirah 2012): New democracies emerging over the last few decades have not faced a smooth path to democratic consolidation. Periodically, citizens’ rights and liberties in these states have been encroached upon, sometimes accompanied by a complete return to authoritarian rule and sometimes not. While recent scholarship has looked at the factors associated with authoritarian reversals, less attention has been given to the broader phenomenon of authoritarian backsliding, which I define as a decline in the freedoms provided to citizens in newly democratized states regardless of whether a regime change takes place. I identify two distinct kinds of authoritarian backsliding: restrictions on civil liberties and restrictions on political rights. An analysis of more than seventy new democracies emerging since the beginning of the third wave examines the social, economic and political factors associated with each kind of backsliding. I demonstrate that while some factors are associated with backsliding writ large, others have different impacts on the restriction of civil liberties and the restriction of political rights in young democracies.

Note 1: This concept is narrower than 'constitutional retrogression', 'constitutional capture' and 'autocratic legalism' in the sense that these other concepts can relate to any democracy. By contrast, 'authoritarian backsliding' focuses on young democracies and the fear that they may simply revert to authoritarianism again. 

Note 2: This concept has a close affinity to the terms 'democratic backsliding' and 'democratic deconsolidation' (see below). However, the latter bring our focus more squarely to the level of maturity and quality of the democratic system before 'backsliding' began, whereas 'authoritarian backsliding' brings our focus to the end-point of the process of backsliding, as well as the nature of the authoritarian regime prior to the transition to democratic rule. 

Note 3: It is worth emphasising that in many states suffering democratic decay today, the problem is not a mere reversion to the  status quo ante under the prior authoritarian system. Rather, we see the development of new forms of authoritarianism. In Hungary and Poland, for instance, it is not a reversion to Communism but a nativist anti-liberal nationalist hybrid authoritarianism, albeit one that shares much of the governance styles of Communist rule (i.e. dominance of the political system by one party, blurring of the boundaries between party and state, media control, few or no independent accountability institutions, restricted civil society etc). Similarly, in Turkey we see the shift from a military-influenced 'disciplined democracy' (see below) to a form of strongman hybrid authoritarianism (see 'hybrid regime' below) blended with nationalism and Islamism. 

Note 4: The term 'authoritarian backsliding' is not used with significant frequency by public lawyers. However, a notable use of the term was at the Roundtable 'Recovering from Authoritarian Backsliding: Pathways and Prospects' (concerning Central and Eastern Europe) on 18 December 2017,  bringing together public lawyers, practitioners and policymakers. The event was hosted by WZB Berlin Social Science Centre, and co-organised by the Center for Constitutional Transitions, Democracy Reporting International and the Center for Global Constitutionalism, WZB. 

Cross-references

Authoritarianisation.

Autocratic legalism.

Constitutional capture.

Constitutional retrogression.

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Definition  |   a rapid and near-complete collapse of democratic institutions.

See: AZ Huq and T Ginsburg, ‘How to Lose a Constitutional Democracy’ (2018) 65 UCLA Law Review 95

Note 1: Huq and Ginsburg use this term to capture the quick collapse of democratic rule, through a coup d'état, foreign invasion or other means, as opposed to a slower and subtler dismantling of the democratic system, which they term 'constitutional retrogression' (see below). It can therefore be considered a synonym of 'democratic breakdown' (see below) and should be distinguished from 'authoritarian backsliding' (see above), which may be considered as relating to the slow decay of democratic rule in a younger post-authoritarian democracy.

Cross-references

Authoritarian backsliding.

Constitutional retrogression.

Democratic breakdown.

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Definition  |   the gradual erosion of democratic norms and practices by democratic leaders, elected at the ballot box through reasonably free and fair elections.

See: E Frantz & A Kendall-Taylor, 'The Evolution of Autocracy: Why Authoritarianism Is Becoming More Formidable' (2017) 59 Survival: Global Politics and Strategy 57

Note 1: This term is not as common as others such as 'democratic backsliding' and 'authoritarian backsliding' (see below). However, it is a useful rubric used by some scholars to capture the way in which authoritarianism is changing and becoming stronger, and the different means by which would-be autocrats now seize power compared to the past. Frantz and Kendall-Taylor above offer the following:

Authoritarian regimes are evolving. The twenty-first-century autocrat is not the same as his Cold War predecessor. Although certain similarities endure and tried-and-true tactics persist, authoritarian regimes are learning and adapting in ways that warrant our attention. Without an appreciation of authoritarianism’s changing dynamics, Western actors interested in supporting democracy will be hobbled by an outdated and inaccurate model of authoritarian politics. Staying abreast of what makes contemporary autocrats – both those in power and those aspiring to it – behave as they do is fundamental to developing strategies to engage and interact with such regimes, and to counter autocracy’s resurgence.

...

Historically, the onset of autocracy has been sudden and decisive. Military or civilian leaders made clear-cut decisions to suspend democratic rules and engineer authoritarian rule. This is how the authoritarian regimes of inter-war Europe, and of Latin America and sub-Saharan Africa in the 1960s, were born. In fact, from 1940–89, almost half of all dictatorships emerged through a coup d’état.

Today, the initiation of authoritarianism is far less definitive. Contemporary autocrats are coming to power through a process of ‘authoritarianisation’, or the gradual erosion of democratic norms and practices. Democratic leaders, elected at the ballot box through reasonably free and fair elections, are slowly undermining institutional constraints on their power, gradually marginalising the opposition (and watchdogs such as the press) and eroding civil society in ways that make it difficult to pinpoint the moment at which the break with democratic politics occurs. For years, academics and political observers debated whether Turkey should be considered a dictatorship. At what point did President Erdogan cross the threshold into authoritarianism? And how should we think about moves by Hungarian Prime Minister Viktor Orbán and Poland’s ruling Law and Justice party (PiS) to undermine respect for democratic principles in the heart of Central Europe?

An analysis of how autocracies have emerged over the last 75 years shows that authoritarianisation has been on the rise since the end of the Cold War. In the 1970s and 1980s, only about 10% of autocracies emerged via authoritarianisation, compared with around 60% of regimes that began via coups.4 By the 2000s, the proportion of autocrats who came to power as democracies decayed had tripled. The trend is even more striking if we examine just those authoritarian regimes that emerged from the breakdown of a democracy (rather than a transition from one authoritarian regime to another, as in the case of Iran in 1979, when the country’s monarchy gave way to the theocracy in power today). From 2000–10, authoritarianisation accounted for 40% of all democratic failures, matching coups in frequency. If current trends persist, authoritarianisation will soon become the most common pathway to autocracy.

Cross-references

Abusive constitutionalism.

Autocratic legalism.

Constitutional capture

Constitutional retrogression.

— Hybrid regime.

— Modern authoritarianism.

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Definition  |    broadly defined, authoritarianism refers to arbitrary governmental authority. The common feature of authoritarian states is the enforcement of obedience to a central authority at the expense of personal freedoms, rule of law and other constitutional values and principles.

See: GA Tóth, 'Authoritarianism' in R Grote, F Lachenmann, R Wolfrum (eds.), Max Planck Encyclopedia of Comparative Constitutional Law (Oxford Constitutional Law; online resource) 

Note 1: Tóth elaborates on the definition above as follows:

[A]uthoritarianism can be characterized by chronic shortcomings: narrowed political pluralism, absent or inadequate democratic institutions, denied or unenforceable fundamental rights, lack or shortfall of constitutional checks and balances, and oppression of non-governmental-organizations.

...As a normative concept, authoritarianism is one of the opposites of both liberal democracy and constitutional democracy, two perspectives from which the same entity can be approached (...). In this context, the term liberal democracy puts the emphasis on a set of values and principles (liberty, equality, autonomy, collective self-governance, equal participatory rights in political decision making; liberalism), whereas authoritarianism prefers either rival values (such as official ideology, or traditional norms of a certain religion) or pragmatic decision making (the bureaucratic mentality of military systems). Concerning institutional preferences, constitutional democracy typically indicates that as a legal norm, the constitution enjoys the highest rank both procedurally and substantially, free and fair elections are held periodically, elected representatives make laws, governmental powers are constrained, and judicial institutions enforce bills of rights. In authoritarian systems, however, the executive is favoured typically with unconstrained and indefinite competences, either by constitutional text or in an unwritten way.

Note 2: Historically, authoritarian regimes were relatively easy to identify. One-party rule in Communist states and idiosyncratic socialist rule and 'strongman' rule in Africa and Asia, military dictatorships in Latin America and elsewhere, and earlier, the fascist regimes of Europe in the 1930s and 1940s clearly provided little space for democratic engagement and scant protection to civil and political rights (while sometimes providing significant protection of social and economic rights). However, even historically there was a tendency to seek to legimitise the state as a democracy (i.e. a state where the people hold significant governance power) or to retain some of the trappings of democratic rule. Drawing on Marxist-Leninist thought, Communist states described themselves as 'people's democracies' capable of multi-class, multi-party governance on the pathway to socialism (reflected today in the formal title of North Korea: Democratic People's Republic of Korea). In Brazil, the military governments from 1964-1985 maintained a 'show democracy' through competition between two military-sanctioned political parties and the use of constitutional amendments to put policy in effect; the result being 'rule by law' (see below), but not 'rule of law' (see below). 

Note 3: In the context of democratic decay, problematic governments today tend to achieve a rather more convincing veneer of democratic rule than the Communist regimes, strongman governments and military dictatorships of yesteryear: they are more effective at 'mimicking' true democracy. It is therefore common today to see regimes described as 'hybrid regime' (see below) or 'modern authoritarianism' (see below) rather than 'hard' authoritarianism. The end-point of democratic decay today is more commonly these hybrid regimes, but can degenerate further into 'hard' authoritarianism, as seen in Venezuela under President Maduro or even Turkey under President Erdoğan. 

Note 4: For post-authoritarian democracies (e.g. Germany, Hungary, Brazil, South Korea) the nature of the previous authoritarian regime has strong effects on the building of democratic rule after transition (see 'consolidation of democracy' below): it may be more difficult to entrench democratic rule after long-term totalitarian rule, for instance (e.g. Communism' see 'totalitarianism' below) than a short-lived military dictatorship, which itself may feature contestation between moderates and hard-liners, and allow some space for civil society activity. The nature of the transition to democratic rule matters - a slower, 'managed' transition by the authoritarian regime will differ starkly with a swift and outright collapse of the authoritarian regime. Regarding democratic decay, this can have path-dependent effects - after the transition to democratic rule - on the development of a vibrant civil society, robust institutions, and even a well-functioning political-party system necessary to ward off threats to the democratic system. It also often affects the nature of the post-authoritarian constitutional order, e.g. with a strong focus on counter-majoritarian institutions, such as rights and judicial review, and even 'militant democracy' (see below).

Note 5: For long-established democracies that have not experienced authoritarian rule, or at least not for centuries (e.g. US, UK) authoritarianism is a hypothetical rather than a lived experience, which can lend a somewhat lesser urgency to the need for strong safeguards. However, strands or currents of authoritarian thinking or governance are also present in long-established democracies: see 'constitutional rot' and 'constitutional dictatorship' below. 

Cross-references

Abusive constitutionalism.

Autocratic legalism.

Consolidation of democracy.

Constitutional capture

Constitutional retrogression.

— Hybrid regime.

— Modern authoritarianism.

Totalitarianism.

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Definition  |    

i. (A system of) government by one person with absolute power; a state, society, etc., governed in this way. 

ii. More generally: the controlling authority or influence of one person or group of people over another.

See: GA Tóth, 'Authoritarianism' in R Grote, F Lachenmann, R Wolfrum (eds.), Max Planck Encyclopedia of Comparative Constitutional Law (Oxford Constitutional Law; online resource) 

Note 1: The above is the dictionary definition of 'autocracy' (Oxford English Dictionary online). In the literature the second definition of the term is the most common, and it generally serves as a synonym for 'authoritarianism' (see above): see e.g. 'authoritarianisation' above, and 'autocratic legalism' below. 

Note 2: The above notwithstanding, Tóth notes that the term 'autocracy' in fact covers both totalitarianism (see below) and authoritarianism:

[A]s regards contemporary institutional systems, there is a distinction between democracy and autocracy; and within the latter a difference can be drawn between authoritarian and totalitarian systems (...). While identifying a totalitarian system ... seems straightforward (a ruler with total power, coercion imposed through violence, strong mobilizing ideology, people are fully subservient to the state, single-party regime, and militarism), authoritarianism, as a weaker form of autocracy, is difficult to separate from incorrect forms or practices of democracy (...). Authoritarians historically murdered or violently suppressed opponents, imprisoned journalists, suspended legislation, and abolished courts. Although contemporary authoritarians have not given up the complete mechanism of their ancestors, authoritarianism has been undergoing a modification. Many of the authoritarian incumbents are elected leaders who adopt constitutions and laws that apparently correspond to legal systems in democratic countries. This is why anti-democratic tendencies are more difficult to discover and assess properly...

Note 3: Freedom House, one of the leading democracy assessment organisations globally, uses a broad tripartite classification of states worldwide, as 'Free' (democracies), 'Partly Free' (hybrid regimes), and 'Not free' (autocracies). Its reports also tend to use the term 'autocracy' broadly, to the extent that it might be considered a synonym for authoritarianism (see below): See e.g. 'Populists and Autocrats: The Dual Threat to Global Democracy. Freedom in the World 2017'.

Cross-references

Authoritarianisation.

Authoritarianism.

Autocratic legalism.

Totalitarianism.

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Definition  |    the deployment of law by 'new autocrats' to deliberately attack the basic principles of liberal and democratic constitutionalism in order to consolidate power and entrench themselves in office for the long haul.

See: KL Scheppele, 'Autocratic Legalism' (2018) 85 The University of Chicago Law Review 545  

See: J Corrales, 'The Authoritarian Resurgence: Autocratic Legalism in Venezuela' (2015) 26(2) Journal of Democracy 37

Abstract (Scheppele 2018): Buried within the general phenomenon of democratic decline is a set of cases in which charismatic new leaders are elected by democratic publics and then use their electoral mandates to dismantle by law the constitutional systems they inherited. These leaders aim to consolidate power and to remain in office indefinitely, eventually eliminating the ability of democratic publics to exercise their basic democratic rights, to hold leaders accountable, and to change their leaders peacefully. Because these “legalistic autocrats” deploy the law to achieve their aims, impending autocracy may not be evident at the start. But we can learn to spot the legalistic autocrats before autocratic constitutionalism becomes fatal because they are often following a script using tactics that they borrow from each other. This Essay explains the paths that these autocratic legalists take, the danger signals that accompany their legal reforms, and the methods they use to dismantle liberal constitutions. The Essay also suggests how the legalistic autocrats may be stopped.

Note 1: As Scheppele notes in her abstract, 'autocratic legalism' is a sub-set of the wider phenomenon of 'democratic decline', which we can take here as referring to 'democratic recession' (see below). As Scheppele also observes (p.549), Hungary is her "archetypal" example. It is clear that other governments, such as those in Poland and Romania, have emulated the Hungarian government's moves to hollow out democratic rule. Scheppele's work is essential to understanding such 'masterplan' processes where executives seek to hollow out the democratic system.

Note 2: As Scheppele acknowledges, the term 'autocratic legalism' was first used by Javier Corrales in relation to the dismantling of democratic governance in Venezuela under President Chávez in Venezuela, which has continued and deepened under President Maduro. It is useful to note here that Corrales characterises the shift as a 'hybrid regime' (i.e. a governance system that exhibits elements of both democratic and authoritarian rule; see below) moving towards "increasing authoritarianism" (p.37). Scheppele uses the term mainly in reference to consolidated democratic systems (Hungary, Poland) transforming into hybrid regimes. 

Note 3: A key aspect of Scheppele's conceptual framework is her focus on how would-be autocrats are learning from one another, in a form of 'dark side' to the decades-long trend of an increasingly strong use of comparative law in the service of rights protection and other aspects of constitutional adjudication and thought. Scheppele shows how executives seeking to hollow out democratic rule increasingly follow a sort of 'playbook' which contains features from Russian, Hungarian, and Turkish attacks on democratic rule, among others, as well as isolated bad practices in high-quality democratic systems. She shows how this approach is used to counter criticisms of autocratic legalism, and calls the resulting accumulation of bad practices a 'Frankenstate' (see below).

Note 4: Scheppele's article is also very useful for her discussion of the relationship between 'democratic constitutionalism' and 'liberal constitutionalism' (p.560). She emphasises how the two are conjoined (but can also be viewed as mutually antagonistic; see 'liberal constitutional democracy' below):

And so it seemed, after so many authoritarian regimes were rejected in the last decades of the twentieth century, that democratic and liberal constitutionalism was the fate of the world. Democratic constitutionalism honored democracy by channeling it through institutions that would enable it to be self-sustaining [see 'self-sustaining democracy' below]. Liberal constitutionalism honored the rights of individuals by setting limits on what governments could do in the name of majorities and requiring that the institutions of a democratic state remain accountable and limited. Democratic and liberal constitutionalism put democratic electorates in charge of their own destiny, with political power controlled and checked in ways that would guarantee the continued respect for individuals and their ideas about self-governance.

Cross-references

Abusive constitutionalism.

Authoritarianisation.

Consolidation of democracy.

Constitutional capture.

Constitutional retrogression.

Frankenstate.

Rule by law.

— Rule of law backsliding.

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Definition  |   the practice and use of constitutional law and constitutionalism in bad faith, i.e. without adherence to the central principles of constitutionalism including limited government powers, separation of powers, respect for fundamental rights.

See: A Acar, ‘"De-constitutionalism" in Turkey?’ Int’l. J. Const. L. Blog 19 May 2016 

Note 1: The very idea of 'true' constitutionalism implies a good faith commitment to what constitutionalism means. For some, this makes 'bad faith constitutionalism' an oxymoron. However, it does capture a significant fidelity to the use of constitutional forms and practice to achieve undemocratic (or unconstitutional) ends.

Note 2: The question of bad faith also raises the serious difficulty in assessing whether some legal reforms constitute an attack on democratic structures, to the extent that it is not always immediately obvious whether such reforms are being conducted in bad faith. Indeed, in many states governments (and their supporters) have argued that the transformation is not toward a less democratic form of government but a different form of democratic government, such as a movement from liberal democracy to republican government, or a 'conservative democracy' (Poland) or 'post-liberal' democracy based on socialist revolution (Venezuela). 

Cross-references

Constitutionalism.

— De-constitutionalism.

Rule by law.

Rule of law.

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See Hybrid regime.

See Modern authoritarianism.

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Definition  |   a polysemic and ambiguous term used to denote some form of departure from Western-style liberal democracy.

See: K Korycki, 'Memory, Politics and the “Populist” Moment' (Canadian Political Science Association (CPSA) Annual Meeting, Ryerson University, Presentation, May 30–June 1, 2017

See: B Alpan, 'From AKP’s ‘Conservative Democracy’ to ‘Advanced Democracy’: Shifts and Challenges in the Debate on ‘Europe’'(2016) 21(1) Journal of South European Society and Politics 15

Note 1: The term 'conservative democracy' has been used in, and applied to states such as Poland, Hungary, and Turkey. The notion is not a well-elaborated ideology but generally refers to a stance taken in opposition to liberal democracy (or 'constitutional liberal democracy' - see below) and its focus on the rights of the individual and individual moral choice. In Hungary, for instance, the justice minister has previously defended the country's system as a 'conservative democracy' which is opposed to permitting "individual interests to dominate the interest of the community." In Poland, the term can be applied to the governing Law and Justice (PiS) party's platform, which "emphasizes human dignity, personal and communal freedom, but also the nation, morality, and the “universal” Catholic Church, as well as an insistence that communist power persists in the state."

Note 2: It is important to emphasise that 'conservative democracy' here does not refer to the partisan liberal/conservative divide (e.g. in the USA). This was captured in an exchange between the Harvard scholar Yascha Mounk and a caller (Ralph from Michigan) on an episode of the Diana Rehm Show on National Public Radio (NPR) concerning threats to liberal democracy:

RALPH Thank you. Well, I think the premise of your show is perhaps the most outrageous thing I've ever heard on NPR. Which is you can have a liberal democracy or you can have a military rule. What I think the elections are telling us is that we want to have a more conservative democracy. Liberal policies have failed right and left over the last 50 years and we're just taking a little turn in this country to conservatives. And you are making it out to be that there's going to be a military takeover. That's my comment.

MOUNK Look, I have huge policy disagreements with Ted Cruz. I have considerable policy disagreements with Marco Rubio. I think that they are, in my sense of a word, liberal Democrats. Not because of a liberal on a liberal/conservative spectrum, but because they understand the importance of a rule of law. They do not undermine basic Democratic norms. They do not say that they're going to punish people for free speech or undermine the ability of a press to be critical of them.

Note 2: Regarding Turkey, the term has quite a specific meaning. Başak Alpan describes the term as an ambiguous term, an "empty signifier", previously used by the ruling party, the Justice and Development Party (AKP), in the early 2000s to unify its disparate electoral base: 

This all-encompassing ambiguity fits neatly into the time frame in which the AKP came to power. As will be detailed below, the AKP made its political debut in a context where support for and popularity of EU integration was at its pinnacle and when it was obligatory to air the claim to be synthesising different demands, where differences were seen as an asset. Within this context, ‘conservative democracy’ emerged as an answer to all existing problems. It was an answer to the consolidation and normalisation of democracy in post-coup Turkey with its emphasis on ‘democracy’. It also appealed to the ‘oppressed and excluded’, as most of the party’s cadre came from Islamist parties who had been hitherto excluded from political life by secularist policies, including Tayyip Erdoğan, the party leader, who was imprisoned for four months while mayor of Istanbul after reciting a religiously intolerant poem in Siirt in 1998. ‘Conservative democracy’ in this respect had a universalist tendency to purport to solve all the pressing problems of Turkey. At that time, ‘Europe’ was needed as a context to promote and justify ‘conservative democracy’ and its claim to offer a solution to each and every problem.

Note 4: As Robert Pee noted in Democracy Promotion, National Security and Strategy: Foreign Policy under the Reagan Administration (Routledge, 2015) p.177, the term 'conservative democracy' has been used in a different sense in the Philippines. In the context of democratic transition after the Marcos dictatorship, the term reflected the objective of the domestic political opposition, and international actors (primarily the US State Department and National Endowment for Democracy (NED)) to achieve

a restoration of the institutions which had existed before Marcos gutted them, rather than a radical transformation.   Indeed, Paul Wolfowitz had argued in the run-up to the [1987] elections that, 'reform in the Philippines has a certain conservative character to it, because one is talking about resroring military professionalism, ...a free market economy, and ...going back to certain democratic traditions.' This restoration was accomplished successfully: five years after the fall of Marcos, 85 per cent of the 200-member House of Representatives consisted of the political clans who had traditionally governed the Philippines under the period of corrupt, oligarchic democracy from 1946-72.

Cross-references

— Democracy.

— Liberationist democracy.

Post-liberal democracy.

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Definition  |   the achievement of a democratic system that allows for the free formulation of political preferences, through the use of basic freedoms or associations, information and communication, for the purpose of free competition between leaders to validate at regular intervals by non-violent means their claims to rule, without excluding any effective political office from that competition or prohibiting members of the political community from expressing their preference.

See: C Schneider, The Consolidation of Democracy: Comparing Europe and Latin America (Routledge, 2008)

See: TG Daly, The Alchemists: Questioning Our Faith in Courts as Democracy-Builders (Cambridge University Press, 2017) pp.36-41

See: S Monclaire, ‘Democracy, Transition and Consolidation: Making Concepts More Precise’ in A Nervo Codato (ed), Political Transition and Democratic Consolidation: Studies on Contemporary Brazil (Nova Science, 2006)

Note: The concept of 'consolidation of democracy', or democratic consolidation, is highly contested. Given that the concept incorporates both ‘democracy’ and ‘consolidation of democracy’, various conceptions are found in the literature and a fundamental line of division relates to the underlying definition of democracy itself, whether minimal (‘thin’) or substantive (‘thick’). The concept was developed in the 1970s, as states worldwide were transitioning to democratic rule, to provide the analytical tools to assess whether a system could be considered to be a secure and functioning democracy, and to identify their nature vis-à-vis the long-established democracies of the Global North. Under this framework, with electoral democracy as the starting point (i.e. the holding of full, free and fair elections at the beginning of the democratic transition) and full liberal democracy as the empirical end-point, consolidation is a form of mid-point. A state might reach this mid-point and continue to develop toward full liberal democracy, progress might stall, or (of particular relevance here) the process might even reverse - see 'authoritarian backsliding' (above), 'democratic backsliding', 'democratic decay' and 'democratic deconsolidation' (below). 

Note 2: The concept is used in both a positive and negative sense: (i) In a positive sense, it relates to the minimal process of the institutionalisation of the basic structures of a democratic regime. Elections and related civil liberties have been institutionalised, all major political actors have renounced alternatives to democracy and submit to operating within a democratic framework, ‘and no political institution or group has a claim to veto the actions of democratically elected decision-makers’; in other words, when democracy is securely rooted and has become ‘the only game in town’; and (ii) In a negative sense, it relates to making the democratic system immune against the threat of authoritarian regression. The objective here is to identify signs of threatened backsliding from electoral democracy to authoritarianism, whether by the ‘slow death’ of successive authoritarian advances and a weakening of the existing democratic structures (‘deconsolidation’), resulting in a repressive façade democracy, or by the ‘quick death’ of a coup d'état, invasion, or other crisis; and to ascertain with some confidence when a new democracy could be expected to persist into the future.

Note 3: Although highly contested, the relevance of the consolidation of democracy concept to democratic decay is that it raises the question of how to distinguish between states suffering democratic decay and states suffering problematic democratisation processes. 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. States that transitioned (or returned) to democracy during the immediate post-war period (e.g. Germany, Japan, Costa Rica) may be considered long-established democracies. States that transitioned during the 'third wave of democratisation' (e.g. Spain, Portugal, South Korea, Brazil, South Africa) present a range of perceived levels of 'consolidation'. States such as Tanzania, which have been slowly democratising since the 1980s but which had not been considered 'consolidated', are perhaps best addressed under the rubric 'authoritarian backsliding' (see above) than 'democratic decay' or cognate concepts. 

Note 4: The above notwithstanding, the democratic decay experienced in a variety of states considered to have been consolidated (e.g. Hungary, Poland) casts into doubt the criteria and frameworks for assessing consolidation itself. The phenomenon of democratic decay may provide some support to critics, such as Monclaire (third listed source above) who perceived an excessive focus on mere democratic survival in the medium term, and others who perceive an excessive focus on institutions (e.g. establishment of constitutional courts) to the detriment of deeper sociological analysis of commitment to democratic rule. 

Cross-references

— Authoritarianisation.

— Democratic deconsolidation.

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Definition  |   a scenario where one set of partisan actors tries to obtain control of the political system as a whole (as well as parts of the economy, the media and civil society), rendering subsequent changes in political control virtually impossible.

See: J-W Müller, 'Protecting the Rule of Law (and Democracy!) in the EU: The Idea of a Copenhagen Commission' in C Closa & D Kochenov (eds), Reinforcing Rule of Law Oversight in the European Union (Cambridge University Press, 2016)

See: J-W Müller, 'Rising to the challenge of constitutional capture' Eurozine 21 March 2014

See: TT Koncewicz, 'Unconstitutonal capture and constitutional recapture: Of the rule of law, separation of powers and judicial promise'. Jean Monnet Working Paper 3/17, Jean Monnet Program, New York University (NYU)

See: G Stopler, 'Constitutional Capture in Israel' Int’l J. Const. L. Blog 21 August 2017

Note 1: The definition above is from the first listed piece by Müller (p.208). The idea of 'constitutional capture', like 'autocratic legalism' focuses heavily on the express actions of determined actors (usually executive actors) to hollow out the democratic constitutional system, re-shape it to serve their own purposes, and to gain control of the system. 

Note 2: As Jan-Werner Müller observes in the second-listed source, constitutional capture can be achieved through formal or informal means (or possibly a combination of both):

Hungarian Prime Minister Victor Orbán actually passed a new constitution for his country (a case of formal constitutional capture); his Romanian counterpart Victor Ponta, in the summer of 2012, blatantly tried to disable checks and balances (the constitutional court in particular) to get rid of his political arch-enemy, the President of Romania (this being a matter of attempting an informal constitutional capture).

Note 3: Although Müller emphasises that pervasive corruption does not in itself constitute constitutional capture, corruption is an under-appreciated and common, but evidently partial, explanatory factor for executive behaviour in states perceived as suffering such capture, e.g. Hungary, South Africa, Venezuela: see 'Mafia state' below.

Note 4: Koncewicz, focusing on Poland (see the third-listed source above), uses the term 'unconstitutional capture' to refer to the same process as 'constitutional capture'. His term 'constitutional recapture' refers to the possibility of reversing the hollowing out of the democratic constitutional system. 

Cross-references

— Abusive constitutionalism.

— Autocratic legalism.

— Constitutional retrogression.

— Mafia state.

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Definition  |   a coup d'état or power grab effected by a political actor, usually through the use of constitutional law or mechanisms, rather than through force.

See: 'Africa faces a new threat to democracy: the ‘constitutional coup’' The Conversation 9 February 2017

See: G Lins Ribeiro, 'The Brazilian Political Conundrum' (2016) XLVII(3) LASAForum 12

See: TG Daly, ‘Public Law and the Puzzle of Democratic Decay in Brazil’, Law and Society Association (LSA)/RCSL 2017, Mexico City, 23 June 2017

Note 1: The idea of a 'constitutional coup' or 'constitutional coup d'état' has become more common. It refers to various different situations but the unifying thread is the seizure of control of the State by a political actor, often through the use of a constitutional mechanism, and without using force. Key examples include the removal of constitutional limits on presidential terms in Africa. In Brazil, it has been argued that the use of the impeachment process to remove President Dilma Rousseff in 2016 was a 'constitutional coup' or 'soft coup'- or more specifically, an 'abusive impeachment'. The term has also been used to describe removal of incumbents in Kosovo and Malaysia, among other states.

Note 2: A constitutional coup is not limited to democratic states. For instance, Xi Jinping's successful removal of the constitutional two-term limit on chairman of the Chinese government for example has paved the way for him to possibly remain president for life. Tunisian dictator Zine El Abidine Ben Ali's removal of the 'President-for-life' Habib Bourguiba in 1987 has been described as a 'constitutional coup d'état', as it followed constitutional rules, by producing medical reports attesting that Bourguiba was physically unfit for office.

Note 3: However, in democratic states this phenomenon represents a key instance of the use of law to degrade democratic governance and render the executive difficult to dislodge from power. As such, it has a close affinity to terms such as 'autocratic legalism' and 'constitutional capture' but is more limited in its scope and focuses on a single instance of abuse of constitutional law rather than a wider pattern. That said, such 'coups' do not occur in a vacuum and are ordinarily preceded by patterns of extreme dysfunction or contestation within the political system.

Cross-references

— Abusive constitutionalism.

— Hybrid regime.

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Definition  |   

i. When important political actors are no longer willing to abide by existing constitutional arrangements or systematically contradict constitutional purposes.

ii. when important political actors are too faithful to the constitution.

iii. when important political disputes cannot be resolved within the existing constitutional framework.

See: MA Graber, A New Introduction to American Constitutionalism (Oxford University Press, 2013) p.244

See: A Von Bogdandy & P Sonnevend (eds), Constitutional Crisis in the European Constitutional Area: Theory, Law and Politics in Hungary and Romania (Bloomsbury Publishing, 2015)

Note 1: The definitions above are from Graber (citing Sandy Levinson and Jack Balkin, among others). When we speak of constitutional crisis as related to contexts of 'democratic decay', 'autocratic legalism', or 'constitutional retrogression' we are generally referring to definition (i) above. Balkin refers to political leaders "announcing that they will no longer abide by the Constitution or laws (for example, because of emergency), or they openly flout judicial orders directed at them". In many states this has been taken to the extreme of full-scale assaults on judicial independence, constitutional amendments (or even new constitutions), and use of ordinary law to effect de facto constitutional change aimed at hollowing out the democratic system. This is the sense in which the term is employed in Von Bogdandy and Sonnevend's edited collection regarding attacks on the democratic system in Hungary and Romania (see the second source listed above).

Note 2: As definitions above are based on different episodes in US constitutional history, some may not have universal application. For example, regarding definition (ii) above, Graber states: "[President] James Buchanan failed to ward off secession [from the USA] in part because he believed the president was not constitutionally empowered to coerce the states that had left the Union."

Note 3: 'Constitutional crisis' in the sense of definitions (ii) and (iii) above can occur in a state that is not suffering express attacks on the democratic order in a manner similar to that seen in Hungary or Venezuela. For instance, the constitutional crisis provoked by Brexit (the United Kingdom's withdrawal from the European Union) would clearly come within definition (iii) but not necessarily definition (i) (although this is arguable).

Cross-references

— Abusive constitutionalism.

— Autocratic legalism.

— Constitutional capture.

— Constitutional retrogression.

— Crisis of democracy.

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Definition  |   a slow and sometimes hardly perceptible decay of some constitutional principles, including political and economic sovereignty, according to their varying half-lives. 

See: JEM Machado, 'The Portuguese Constitution of 1976: Half-life and Decay' in X Contiades (ed), Engineering Constitutional Change: A Comparative Perspective on Europe, Canada and the USA (Routledge, 2013)

Note 1:  Machado's concept of "constitutional decay" draws on the physical process of atomic decay, in which decay slowly changes a 'parent' nuclear isotope into a 'daughter' isotope - although Machado emphasises that it is important to bear in mind that nuclear decay "is a physical process, whereas constitutional change—even when core principles are involved—is an intellectual, political and social phenomenon." Machado uses the term to capture how the Portuguese Republican Constitution (PRC), through a series of express constitutional amendments, judicial decisions, 'Europeanisation' (through the influence of EU and European Court of Human Rights) and, more recently, the soverign debt crisis and subsequent financial 'bailout' by the EU and International Monetary Fund (IMF), has significantly changed the Constitution from a socialist document strongly focused on national sovereignty to just one of a range of sources of 'constitutional' power. He states at pp.293-4:

During the recent decades, the principles, rights and institutions of the [Constitution] have slowly acquired a different isotopic form. The Treaty of Lisbon and the current debt crisis only accelerated the rates of constitutional decay. We could probably say that the PRC became a different element altogether, changing not only its content, but also its nature . The parent PRC started out as a sovereignty-based national Constitution, promoting the revolutionary ideals of the Portuguese people, whereas the daughter PRC is but a small part of a larger pool of constituent powers. This means that the PRC is now a partial, secondary and unstable Constitution, with a short half-life. Although constitutional decay is a non-physical phenomenon, with political and moral dimensions, it can be a subtle and continuous process or it can accelerate. The parent element of state constitutionalism seems to be giving way to a daughter element of European constitutionalism. The normative value and power of the PRC have substantially weakened.

           Constitutional decay may release some political energy and radiation. Sometimes the heat is felt in the streets, with general strikes, angry demonstrations and even violent confrontation, as with the sovereign debt crisis. (...) 

           Constitutional decay can have both negative and positive consequences. On the negative side, it may happen that the combined effect of constitutional revisions, legislative acts or judicial interpretative decisions— in domains such as campaign finance, political party governance, electoral systems and proportional representation, incompatibilities of MPs, administrative autonomy, financial control, media regulation and concentration, defamation of public figures, etc.— has a cumulative and degenerative impact on the quality of democracy. This was the Republican view of constitutional decay. It may also happen that the decay of national constitutionalism is not compensated by the establishment of strong institutions at European level, creating a situation in which the sovereignty of small states such as Portugal is lost, only to be retained by stronger member states and powerful economic interests. Its positive result should be the rise of a new European constitutionalism, with its form of democratic government and citizenship. The current decay chain signals the transformation of state-based constitutionalism into a regional and global multilevel constitutionalism. This seems to be the expected result, albeit intrinsically unstable. It will take a huge effort and quantity of political will to get there. This is where the analogy with nuclear decay ends. This new constitutional element can only be developed in a conscious, collective and forward-looking way.

Note 2: As Machado emphasises, constitutional decay is not necessarily negative, and it does not equate to the types of express executive assaults on democratic rule covered by 'autocratic legalism', 'constitutional capture' (above), 'constitutional retrogression' or 'stealth authoritarianism'. However, in the context of democratic decay the notion has significant utility in thinking about negative processes of constitutional change, particularly regarding change which takes place incrementally and the question of whether the resulting 'daughter' constitution is sufficiently stable. This comes into focus as regards the use of constitutional amendment in various states perceived to be undergoing democratic decay (e.g. Hungary, Venezuela) or the use of ordinary law to effect de facto widespread constitutional change aimed at hollowing out democratic structures (e.g. Poland).

Note 3: Allied to the above point, in the European context, Machado's description of the current Portuguse Constitution as "a partial Constitution, a piece of a larger system of multi-layered constitutionalism" (p.292) brings to the fore the growing tension in European states undergoing democratic decay between the national constitution and European-level constitutionalism. This is seen at its starkest in discussion of EU sanctions for breach of the fundamental EU principle of the rule of law in Article 2 of the Treaty on European Union (TEU), negative assessments of constitutional change under EU 'rule of law monitoring' processes, negative Venice Commission assessments, and adverse judgments of the European Court of Human Rights (e.g. against blanket surveillance legislation in Hungary). 

Note 4: It should be emphasised that Machado's concept of 'constitutional decay' clearly differs from, and is narrower than, the concept of 'democratic decay' (see below) and Francis Fukuyama's concept of 'political decay' (see below).

Note 5: The term 'constitutional decay' has been used by some as a broader rubric for decay of the constitutional order, reflecting Jack Balkin's concept of 'constitutional rot'. For instance, in the 2011 Annual Walter F. Murphy Lecture in American Constitutionalism at Princeton University, titled 'Constitutional Decay and the Politics of Deference', Jeffrey Tulis (University of Texas) decried negative changes in constitutional practice:

“Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place.” In this singular insight, James Madison revealed the distinctive design of the American governmental order. This was the stunning conclusion of his new science of politics, that the core of governance could be a dynamic agonism, a perpetual conflict, between institutions crafted to meet the multiple needs of a democratic people fueled by the ordinary attributes of human nature. By tethering the ordinary ambitions of politicians to the constitutional responsibilities of the branches where they worked, a well-designed constitutional order would not need to make politicians virtuous in order to make government effective and responsible. Responsibility could be made a by-product of man-made institutions rather than an attribute of the inculcation of human beings remade. This lecture is a diagnosis of the decay of that idea and the consequent core pathology of modern American politics. Today, the Congress abdicates its core duties to the President, and the President and the Congress together often defer to the Supreme Court to legally resolve disputes previously settled politically. As examples, I will discuss budget politics, war powers, Senate consent for Supreme Court appointments, and impeachment. The Federalist provides a theory that enables us to identify and understand these very serious problems of constitutional abdication, and at the same time shows the Constitution itself to be one of the deepest sources of this pathology.

Cross-references

— Constitutional rot.

— Democratic decay.

— Political decay.

— Rule of law backsliding.

— Undemocratic liberalism.

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Definition  |   

i.    a system (or subsystem) of constitutional government that bestows on a certain individual or institution the right to make binding rules, directives, and decisions and apply them to concrete circumstances unhindered by timely legal checks to their authority. 

ii.     a dictatorial system installed through the use of constitutional reform.

See: J Balkin, 'Constitutional Dictatorship: Its Dangers and Its Design' (2010) 94 Minnesota Law Review 1789

See: C Rossiter, Constitutional Dictatorship: Crisis Government in the Modern Democracies (orig edn 1948, Routledge, 2002)

See: CA Akman & P Akçalı, 'Changing the system through instrumentalizing weak political institutions: the quest for a presidential system in Turkey in historical and comparative perspective (2017) 18(4) Turkish Studies 577

Note 1:  Not to be confused with a dictatorship such as military rule or strongman rule, the first definition above refers to the possibility within a republican or democratic system to accord wide-ranging power to an individual or institution temporarily, for specific purposes, and usually within strict limits of application. As Balkin states:

The term "dictatorship,"...began as a special constitutional office of the Roman Republic, granting a single person extraordinary emergency powers for a limited period of time. "Every man the least conversant in Roman story," remarked Alexander Hamilton in The Federalist No. 70, "knows how often that republic was obliged to take refuge in the absolute power of a single man, under the formidable title of Dictator" to confront emergencies caused by insurrection, sedition, and external enemies. No political constitution was well designed, Hamilton believed, unless it could confront emergencies and provide for energetic executive powers to handle them.

Under this view, dictatorship-the power of government officials to act on important matters free of accountability or timely legal checks-is not the opposite of democracy-or what our Constitution calls a "Republican Form of Government." It is an institutional feature within constitutional democracies that can and should be employed to perform valuable civic functions. From this perspective, "dictatorship" becomes-as it was in the early Roman Republic-a term of description rather than a term of opprobrium. It refers to institutions and powers of emergency government that constitution makers might establish to serve the public interest. Indeed, if the institutions are properly designed, "dictatorship" might even have positive
connotations...

At the same time, the Framers of the American Constitution believed that democracies were dangerous precisely because they might lead to what they called "tyranny"-the sort of denials of liberty that people today now routinely associate with "dictatorship." Even as they celebrated republicanism-rule by the people-they distrusted the passions of majorities.' For the Framers, democracy was not the antithesis of dictatorship, either as a logical or an empirical matter. Democracy was a force that always had to be checked, and its passions cooled, in order to realize the benefits of republican government. Every republic known to the Framers-many of whom were steeped in ancient history -had eventually broken down and led to government by a strongman such as Julius Caesar.

The lesson of the past seemed to be that the natural progression of popular governments was toward demagoguery and eventually tyranny; the most obvious example to the founding generation was the ill-fated English Revolution in 1640 and the rise of Oliver Cromwell as Lord Protector. Therefore, it was crucial to build institutional features like the separation of powers and checks and balances to keep America's experiment with republican government safe from the same fate as previous attempts.

It is better to think of dictatorship, then, neither with associations of praise (Cincinnatus) or dread (Hitler), but with a necessary ambivalence. It is an institutional framework for emergency government that may be valuable and even necessary to constitutional republics; nevertheless, it contains troublesome tendencies that, if allowed to develop unchecked, pose serious threats to democratic government.

Emergency powers may well be necessary to effective governance in a modern state. But precisely because of the growth of emergency powers and other forms of executive discretion in American legal institutions-not to mention the unhappy fate
of many other republics-one cannot be sure that the some times haphazard expansion of executive discretion and emergency
power pose no dangers to the United States.

Note 2: Balkin makes a clear distinction between the Roman mechanism and his understanding of 'constitutional dictatorship' in the contemporary USA: 

The Roman dictatorship limited the time of the dictatorship and separated the institution that declared the emergency from the person who exercised power. The American pattern has been quite different. Generally speaking, the President announces the existence of a crisis or emergency, and, at the President's request, the Congress generally bestows new statutory grants of power. These new powers are usually never repealed and are banked away for future use, sometimes in very different contexts. The American pattern of constitutional dictatorship does not involve the executive claiming the right to transcend the law; instead Congress grants ever more practically unreviewable discretion to the executive. 

In addition, a significant feature of American constitutionalism is the rise of "distributed dictatorships," in which executive power is spread among a number of de facto dictators, each with its own special expertise. The modern administrative state increasingly spreads unreviewable power among a variety of different agencies, czars, and bureaucrats. The Federal Reserve's response to the recent economic crisis and the Centers for Disease Control's powers to impose quarantines are examples. 

Note 3: The term "constitutional dictatorship" has been used in a different sense in the Turkish context. On 16 April 2017 a package of 18 constitutional amendments was approved by popular referendum (albeit by a slim margin of 52 per cent.), transforming the Turkish political system from a parliamentary system to an executive presidency. As Akman and Akçalı (listed above) note, serious concerns had been raised about the plans beforehand:

The institutional framework of the AKP’s original executive presidency proposal of 2012 was subject to criticism by observers and scholars on the basis of the weakness of democratic checks and balance mechanism embedded in the model. In particular, it was argued that presidential decree power, the broad scope of his appointment and dissolution authority would be tantamount to a system of ‘hyper-presidentialism, which in all likelihood could bring about ‘a one-man regime,’ personalized presidentialism or ‘a strong populist dictatorship.

(...)

Another controversial aspect of the executive presidency system in the amendment relates to the president’s decree powers in many areas relevant for ‘the conduct of general politics.’ Although presidential decrees cannot be issued on personal and/or political rights and responsibilities, this limitation may be suspended under a state of emergency. The parliament would be authorized to apply the Constitutional Court for the annulment of decrees and to refer the decrees or some provisions of decrees to referendum (once a year only). However, it is argued that in light of the concerns about the independence of the judiciary in addition to the unilateral dissolution power, decree power to declare a state of emergency would pave the way for ‘a constitutional dictatorship.’

Cross-references

— Abusive constitutionalism.

— Dictatorship.

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Definition  |    a deliberate effort to transform the identity, the fundamental values or the architecture of the constitution without breaking legal continuity.

See: R Albert, 'Constitutional Amendment and Dismemberment' (2018) 43 Yale Journal of International Law 1

Note 1: This concept, like, abusive constitutionalism, focuses squarely on the alteration of constitutional law to achieve undesirable ends. The concept of constitutional dismemberment is at once both narrower and broader than concepts such as 'autocratic legalism' and 'constitutional retrogression'. It is narrower in the sense that focuses exclusively on constitutional amendments, whereas the other concepts cover many other uses of the law to hollow out democracy. It is broader than these other concepts to the extent that it relates to contexts beyond attacks on the democratic order, e.g. secession in Canada. 

Cross-references

— Abusive constitutionalism.

— Constitutional decay.

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Definition  |   how long a constitution lasts, to provide a stable basis for politics and facilitate the operation of government, while at the same time setting out limits on government action.

See: T Ginsburg, 'Constitutional Endurance' in T Ginsburg & R Dixon (eds), Comparative Constitutional Law (Edward Elgar Publishing, 2011)

Note 1: Richard Albert and Michael Pal (see 'democratic resilience' below) summarise constitutional endurance as "a measure of how long a constitution lasts, whether it has been changed by amendment or interpretation, transformed unrecognizably by a major reform brought on by an emergency period, or whether it has remained unchanged throughout." In the context of democratic decay, they emphasise that what matters is not whether the constitution itself lasts, but how it operates, especially as the basis for genuine democratic government (see also 'constitutional liberal democracy', 'rule by law', 'rule of law' and 'self-sustaining democracy' below).

Note 2: In terms of democratic decay, it is clear that it is possible for the constitutional order to undergo profound change with selected amendments - which is captured by the terms 'abusive constitutionalism' (above) and 'constitutional dismemberment' (above). However, as Jan-Werner Müller and Tomek Koncewicz indicate in discussions of 'constitutional capture' (see above), profound change can also be achieved through ordinary law. In Poland, for instance, the current Law and Justice party (PiS) government lacked the two-thirds parliamentary majority to amend the 1997 Constitution, but has thoroughly reshaped the democratic constitutional system through legislation that affects the functioning (and independence) of the courts, state media, bureaucracy, and NGOs. 

Note 3: The notion of the constitution as a source of stability has resonance with the concept of 'constitutional decay' (above), which refers to how incremental changes to the constitution, through a diverse array of channels, can produce a constitutional arrangement that is inherently unstable. 

Cross-references

— Abusive constitutionalism.

— Constitutional decay.

— Democratic endurance.

— Democratic survival.

— Self-sustaining democracy.

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Definition  |    a total failure of the constitution as the referent of legal and political discourse and framework of political action, as well as the failure of the ideology underpinning the constitution and constitutional order.

See: E Kennedy, Constitutional Failure: Carl Schmitt in Weimar (Duke University Press, 2004)

See: S Choudhry, 'Resisting democratic backsliding: An essay on Weimar, self-enforcing constitutions, and the Frankfurt School' (2018) 7(1) Global Constitutionalism 54

Note 1: The above definition is from Ellen Kennedy's book on the political thought of Carl Schmitt and the failure of the democratic constitutional order of Weimar Germany (1919-1933). At p.155 she states:

When the constitution failed in 1933, it was a failure at every level. Constitutionalism as the political theory of liberalism had failed. The constitutional order, as a political system, had failed. And the constitution as the foundation of law, as the referent of legal and political discourse, and as the framework of political action had failed.

Note 2: The collapse of Weimar Germany was clearly rooted in a variety of factors, including hyperinflation, rising unemployment, a lack of consensus concerning the Weimar Constitution, and the promises of the National Socialist (Nazi) Party for strong and stable government and to avenge Germany's humiliation through the Treaty of Versailles, among others.  Today, these factors are echoed in that the financial crisis, polarisation concerning the meaning and foundations of the constitution, and a perceived failure of democratic governance to deliver prosperity and security are commonly touted as factors in the decline of public faith in democracy, fuelling the rise of anti-democratic governments. However, unlike Nazi Germany, constitutional law and practice is today a more central tool for many would-be autocrats, as reflected by the terms 'autocratic legalism' and 'abusive constitutionalism' in particular. In addition, what we see is not an obvious, outright collapse of democratic rule but rather a subtle, incremental erosion of democratic rule. 

Note 3: Sujit Choudhry's article on the lessons from the Weimar experience focuses on how constitutional design can be employed to address democratic backsliding. Based on an analysis of secret policy documents produced by a number of German émigré scholars during and right after World War II (Franz Neumann, Herbert Marcuse, and Otto Kirchheimer) he emphasises (p.54) "the importance of constitutional design in creating a constitutional infrastructure for bounded pluralistic political contestation, especially with respect to the role of political parties." 

Cross-references

— Authoritarian reversion.

— Hybrid regime.

— Militant democracy.

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See Liberal constitutional democracy. 

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Definition  |    a  subtle, incremental erosion of three institutional predicates of democracy occurring simultaneously: competitive elections; rights of political speech and association; and the administrative and adjudicative rule of law.

See: AZ Huq and T Ginsburg, ‘How to Lose a Constitutional Democracy’ (2018) 65 UCLA Law Review 95

Note 1: Drawing on the existing political science literature, Huq and Ginsburg seek to provide a typology of different types of democratic backsliding. They divide the phenomenon into what they call “authoritarian reversion”, which refers to a rapid and wholesale collapse into authoritarianism, and “constitutional retrogression”, which refers to

a process of incremental (but ultimately still substantial) decay in the three basic predicates of democracy—competitive elections, liberal rights to speech and association, and the rule of law. It captures changes to the quality of a democracy that are (1) on their own incremental in character and perhaps innocuous, that (2) happen roughly in lockstep; and involve (3) deterioration of (a) the quality of elections, (b) speech and association rights, and (c) the rule of law.

Note 2: For Huq and Ginsburg, 'constitutional retrogression' is a much greater threat, in the US and the wider world, in a context where illiberal leaders appear to have shifted to subtler methods of capturing the political system than the coups of yesteryear (see 'authoritarianisation' above). On the basis of comparative analysis ranging across a variety of states (particularly Russia, Hungary, Poland, Thailand, Turkey, Sri Lanka and Ukraine) they identify five ways in which such constitutional retrogression unfolds:

(i) constitutional amendment; (ii) the elimination of institutional checks; (iii) the centralization and politicization of executive power; (iv) the contraction or distortion of a shared public sphere; and (v) the elimination of political competition.

Note 3: The concept of 'constitutional retrogression' has much in common with the concepts of 'autocratic legalism', 'constitutional capture', and 'stealth authoritarianism', to the extent that they could be characterised as sister concepts. Although the constitutional retrogression framework, by its very name, emphasises constitutional aspects of democratic decay, it does not focus solely on formal constitutional amendment and law (unlike the 'abusive constitutionalism' framework). Rather, it encompasses the use of constitutional law, ordinary law, and broader manipulation and abuse of State power to effect a fundamental (and negative) transformation of the constitutional order as a whole. In that sense, its terrain encompasses that covered by 'abusive constitutionalism', 'autocratic legalism' ( and similar concepts such as 'stealth authoritarianism' and 'constitutional capture') and 'abusive legalism'. 

Note 4: It is also worthwhile to emphasise that the constitutional retrogression framework has been elaborated principally in order to assess the threat to US democracy, whereas the autocratic legalism framework focuses on threats to democracy in Europe, in states such as Hungary and Poland (although both frameworks refer to a range of states worldwide). This affects the ways in which each framework is constructed.

Cross-references

— Abusive constitutionalism.

— Authoritarian reversion.

— Autocratic legalism.

— Bad faith constitutionalism.

— Constitutional capture.

— De-constitutionalism.

— Stealth authoritarianism.

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Definition  |   a degradation of constitutional norms that may operate over long periods of time.

See: J Balkin, 'Constitutional Rot and Constitutional Crisis' Balkinization 15 May 2017

See: J Balkin, 'Constitutional Crisis and Constitutional Rot' (2017) 77 Maryland Law Review 147

See: J Balkin, ‘Constitutional Rot’ in CR Sunstein (ed), Can It Happen Here?: Authoritarianism in America (forthcoming, Dey Street Books, 2018)

Note 1: Balkin makes a clear distinction between 'constitutional crisis' and 'constitutional rot'(see first source above): 

Constitutional crisis could, in theory, happen to any constitution; constitutional rot is a specific malady of constitutions of representative democracies—that is, republics. Constitutional crisis occurs during relatively brief periods of time; constitutional rot is a degradation of constitutional norms that may operate over long periods of time.

What is constitutional rot? Democratic constitutions depend on more than obedience to law. They depend on well-functioning institutions that balance and check power and ambition. These include not only public institutions but institutions of civil society like the press.

Next, democracies depend on the public’s trust that government officials will exercise power in the public interest and not for their own personal benefit or for the benefit of private interests and cronies.

Democracies also depend on forbearance on the part of public officials in their assertions of power, and obedience to norms of fair political competition. These norms prevent ambitious politicians from overreaching and undermining public trust. These norms help to promote cooperation between political opponents and factions even when they disagree strongly about how to govern the country. Finally, these norms prevent politicians from privileging short term political gains over long term injuries to the health of the constitutional system.

When politicians disregard norms of fair political competition, undermine public trust, and repeatedly overreach by using constitutional hardball to rig the system in their favor, they cause the system of democratic (and republican) constitutionalism to decay. This is the phenomenon of constitutional rot.

The idea of constitutional rot is very old. The political theory of republicanism familiar to Constitution’s founders asserted that republics were delicate institutions that were always susceptible to decay and corruption over time.   Time was the great enemy of republics, because ever-changing circumstances, and the driving force of people’s ambitions and desire for power would open the door to—if not encourage—multiple forms of institutional corruption. In modern democratic republics, this institutional corruption is a version of constitutional rot.

Note 2: As well as being confined by Balkin to long-established democracies, constitutional rot may be distinguished from concepts such as 'constitutional capture', 'autocratic legalism','constitutional retrogression' and 'stealth authoritarianism' for at least two additional key reasons: (i) its stronger focus on norms rather than structures and institutions; and (ii) its longer temporal scope, in that the latter concepts generally cover instances where the hollowing out of the democratic system can be relatively swift, e.g. 8 years in Hungary, 3 years in Poland (albeit longer in e.g. Venezuela).

Note 3: Although the term constitutional rot may be most appropriately applied to long-established democracies such as the US, even in much younger democracies (e.g. Hungary and Poland) the question is raised as to whether some form of 'constitutional rot' underlies the (often repeated) election to government of political parties that are hostile to democratic governance.  It is important to emphasise here that it is not possible to set out hard categories here between 'young' and 'old' democracies, especially given that some post-authoritarian democracies (e.g. Spain, Portugal) are now over 40 years old, while others (e.g. Germany) are almost 70 years old. Even the USA is considered by some leading democratic theorists, such as Alfred Stepan, as having become a liberal democracy only with the passing of civil rights reforms in the 1960s. 

Cross-references

— Authoritarianism.

— Consolidation of democracy.

— Constitutional crisis.

— Constitutional decay.

— Democratic deconsolidation.

— Political decay.

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Definition  |   the commitment, on the part of any given political community, to accept the legitimacy of, and to be governed by, constitutional rules and principles. [Stone Sweet - better definition?]

See: A Godden & J Morison, 'Constitutionalism' in R Grote, F Lachenmann, R Wolfrum (eds.), Max Planck Encyclopedia of Comparative Constitutional Law (Oxford University Press Online Edition, 2017)

See: K Whittington, 'Constitutionalism' in GA Caldeira, RD Kelemen, and KE Whittington (eds), The Oxford Handbook of Law and Politics (Oxford University Press, 2017)

See: KL, 'Autocratic Legalism' (2018) 85 The University of Chicago Law Review 545

See: M Tushnet, ‘Authoritarian Constitutionalism: Some Conceptual Issues’ in T Ginsburg & A Simpser (eds), Constitutions in Authoritarian Regimes (Cambridge University Press, 2014) 

See: L-A Thio, ‘Constitutionalism in Illiberal Polities’ in M Rosenfeld & A Sajó (eds), The Oxford Handbook of Comparative Constitutional Law (Oxford University Press, 2012)

Note 1: Mirroring the way in which Martin Krygier boils the virtual synonym 'rule of law' down to its essentials (see 'rule of law' below), Godden and Morison locate the essence of what is meant by constitutionalism:

1.  The idea of constitutionalism—like the ideas of state, government, democracy, power, and law to which it is very closely related—goes right to the heart of some of the very biggest questions about how we can live together. Where individuals coexist in any social group—a family, tribe, or nation state, or as citizens in a wider global order—there are all sorts of issues about the terms on which they come together and stay together, how rules are made to keep order within the group, and how the group will react to outsiders and adapt to change. There are also issues over how order is maintained, and how disputes over the application of rules are dealt with. In addition, there are questions about how individual and group aspirations are reflected in the arrangements for living together, and whether and how those who take different views are to be protected from domination by more powerful groups—whether these be simply the majority or those who exercise most power in reality.

2.  Constitutionalism may simply be about how power is distributed within any social unit, but often the idea moves beyond a simple description of how things are formally arranged—questions about who does what within a state—and taps into important political and philosophical issues, as well as moral questions, about how government works and the way that we ought to live together. While almost any social group, from a small tribe to a supranational government, will have rules, or at least understandings, about how to conduct its affairs, the idea of constitutionalism can refer to much more. As Grimm (at 1) [D Grimm, Constitutionalism: Past, Present, and Future (OUP 2016)] puts it, ‘every political unit is constituted but not every one of them has a constitution … the term ‘constitution’ covers both conditions’. The word constitution can refer descriptively to the political conditions of a country, or it can have a normative or prescriptive sense where it sets out the rules by which the political process of rule should be exercised. It is this second sense, emerging primarily from the American and French revolutions at the end of the eighteenth century, that now dominates. As Rosenfeld (at 3) has argued, although ‘there appears to be no accepted definition of constitutionalism’, the common thread that appears to unite most conceptualizations is that the subject, at its most basic level, is concerned with the fundamental principle that governmental power requires constraint in the interests of social order (Sweet 626–628) AS Sweet, ‘Constitutionalism, Legal Pluralism and International Rights’ (2009) 1295 Faculty Scholarship Series 621].

Note 2: Scheppele's article on 'autocratic legalism' is very useful for her discussion of the relationship between 'democratic constitutionalism' and 'liberal constitutionalism': see Note 4 in 'autocratic legalism', above. 

Note 3: The fourth and fifth sources listed, by Tushnet and Thio, relate to a growing literature arguing that some form of constitutionalism can be found in some authoritarian regimes (or perhaps more specifically, 'hybrid regimes'; see below), such as Singapore. However, it is perhaps best to describe this as fidelity to  constitutional practice, and a genuine resonance between the constitution as a 'power map' and how power is exercised, rather than the fundamental commitment to limited government suggested by the term 'constitutionalism'. As the Latin American scholar Roberto Niembro argues, authoritarian constitutionalism is

a concept that refers to a very sophisticated way in which ruling elites with an authoritarian mentality exercise power in not fully democratic states. In this case, the regime’s liberal democratic constitution, instead of limiting the power of the state and empowering those who would otherwise be powerless, is used for practical and authoritarian ideological functions. 

Cross-references

— Abusive constitutionalism.

— Bad faith constitutionalism.

— Constitutional liberal democracy.

— De-constitutionalism

— Rule by law.

— Rule of law.

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Definition  |      Democracy is claimed to be in crisis as a result of various factors including: high levels of citizen disaffection with politics; the gross lack of political literacy; low levels of satisfaction and trust in governments and politicians; the decline in membership of political parties; the increasing power of actors without electoral accountability, such as transnational institutions, central banks, or regulatory bodies; the failure, or ineffectiveness, of representation; and the proliferation of complex governance arrangements that evade accountability and transparency. 

See: SA Ercan and J-P Gagnon, Editorial: 'The Crisis of Democracy: Which Crisis? Which Democracy?' (2014) 1(2) Democratic Theory 1

See: P Blokker, New Democracies in Crisis? A Comparative Constitutional Study of the Czech Republic, Hungary, Poland, Romania and Slovakia (Routledge, 2013)

See: M Graber, S Levinson & M Tushnet (eds), Constitutional Democracy in Crisis? (Oxford University Press, 2018)

See: S Issacharoff, 'Democracy’s Deficits' (2018) 85 The University of Chicago Law Review 485

See: A Huq, 'Terrorism and Democratic Recession' (2018) 85 The University of Chicago Law Review 457

Note 1: As regards the definition of 'democratic decay' in this resource (see here and 'democratic decay' below), this concept broadly relates to the degradation of the 'substance' of democratic rule in terms of public faith and institutional accountability. In that sense, it has a much closer affinity with 'democratic deconsolidation' (see below) than other concepts which focus on top-down, planned executive assaults on the democratic system (e.g. 'constitutional capture' above). 

Note 2: The term 'crisis of democracy' has a much wider scope than 'constitutional crisis', as defined above. However, the terms are often used interchangeably, alongside other terms such as 'political crisis'. For instance, Blokker in the book listed above states at p.1:

Crisis rather than consolidation seems the best way to describe the current situation in some of the new democracies in Central and Eastern Europe. According to former dissident Janos Kis, 'Hungary is undergoing a genuine constitutional crisis', while the constitutional lawyer Kim Lane Scheppele feels that 'Romania unravels the rule of law' and Romanian constitutonalist Ioan Stanomir declares that the 'Romanian constitution has become an insignificant and irrelevant element' (...). The political and constitutional crisis can be related to the implications of the global financial and economic crisis, but the roots of democratic breakdown clearly lie elsewhere. 

Note 3: It is important here to avoid strict categorisations between 'constitutional crisis' and 'democratic crisis'. As the title of the third book listed above suggests, many contemporary instances of democratic decay can be characterised as a combined 'crisis of constitutional democracy' (or even of 'liberal constitutional democracy'; see above). It is not easy to fully separate out these elements of governance given that they are so conjoined in contemporary thought and practice. 

Note 4: Sam Issacharoff (fourth listed source above) posits four key factors in the current crisis facing democracies.which focuses on a mix of institutional and socio-cultural factors:

The current democratic malaise is rooted not so much in the outcome of any particular election but in four central institutional challenges, each one a compromise of how democracy was consolidated over the past few centuries. The four are: first, the accelerated decline of political parties and other institutional forms of popular engagement; second, the paralysis of the legislative branches; third, the loss of a sense of social cohesion; and fourth, the decline in state competence. While there are no doubt other candidates for inducing anxiety over the state of democracy, these four have a particular salience in theories of democratic superiority that make their decline or loss a matter of grave concern. Among the great defenses of democracy stand the claims that democracies offer the superior form of participation, of deliberation, of solidarity, and of the capacity to get the job done. We need not arbitrate among the theories of participatory democracy, deliberative democracy, solidaristic democracy, or epistemic democratic superiority. Rather, we should note with concern that each of these theories states a claim for the advantages of democracy, and each faces worrisome disrepair.

Note 5: Aziz Huq, more narrowly, argues that the sense of crisis engendered by terrorist attacks can be a driver for democratic decay. His abstract states:

 This Essay examines the potential causal mechanisms that plausibly link the occurrence of terrorism within a polity to that polity’s democratic decline. That causal pathway is often asserted in political rhetoric about terrorism. But such assertions do not rest on a robust body of theory or empirical knowledge. I hypothesize three pathways along which acts of terrorism might lead to a decline in democratic practices. These three pathways work through the use of emergency powers, the assemblage of a repressive state apparatus, and the emergence of a populist style of politics adverse to democratic contestation. I tentatively conclude that terrorism is most likely to undermine democracy through its accelerating effect on state development and its corrosive effect on democratic politics. Recognition of this possibility, I conclude, has implications for the doctrinal treatment of individual rights in the context of national security threats.

Cross-references

— Constitutional crisis.

— Constitutional liberal democracy.

— Decline of democracy.

— Democratic decay.

— Democratic deconsolidation.

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Definition  |   various ways and practices of constitutional bad faith, employed by the constitutional institutions (mainly the executive, but also the judiciary) which lead to a situation in which there is no longer a (valid) constitution, in terms of the basic principles of constitutionalism–such as the separation of powers, the independence of judiciary, the protection of fundamental rights and freedoms.

See: A Acar, ‘"De-constitutionalism" in Turkey?’ Int’l. J. Const. L. Blog 19 May 2016 

Note 1: Acar's use of this term draws on research (in the Turkish language) by Prof. Kemal Gözler, a constitutional law scholar, who uses the term (in Turkish: Anayasasızlaştırma) to describe the current state of constitutionalism in Turkey where, since 2013 (and intemsifying after the attempted military coup d'état in July 2016) President Erdoğan has concentrated power through political and constitutional means, and, through successive purges aimed at rooting out 'enemies of the state', has greatly diminished the power of accountability forces such as courts, the civil service, the media, and academia: see also 'constitutional dictatorship' above. 

Note 2: This concept has a very close affinity with concepts such as 'constitutional capture', 'constitutional retrogression' and 'autocratic legalism'. However, reflecting the Turkish context, it more expressly places emphasis on the courts as well as the executive as agents of democratic decay, given the perceived role of the judiciary in supporting incremental moves to hollow out the democratic system. This resonates with other under-studied contexts in the literature, such as Brazil. 

Cross-references

— Abusive constitutionalism.

— Autocratic legalism.

— Bad faith constitutionalism.

— Constitutional capture.

— Constitutional dictatorship.

— Constitutional retrogression.

— Stealth authoritarianism.

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Definition  |   

i.  a general rubric for the decline in the quality, number and spread of democracies worldwide, as well as a decline the quality of democratic governance in a specific state.

ii.  the disengagement of the public from the democratic system in a mature system, falling short of the extremes of full democratic crisis. 

See: L Diamond & M Plattner (eds), Democracy in Decline? (JHU Press, 2015)

See: I Marsh & R Miller, Democratic Decline and Democratic Renewal: Political Change in Britain, Australia and New Zealand (Cambridge University Press, 2012)

Note 1: The term 'decline of democracy' or 'democratic decline' is less a strict term of art than a broad rubric encompassing a decline in the quality of established democracies (both long-established and younger democracies), as well as unsuccessful democratic transitions and democratisation processes. In the first source listed above the authors analyse the issue from the perspective of single countries, particular world regions, and from a global perspective: the latter includes Larry Diamond's concept of a worldwide 'democratic recession' (see below).

Note 2:  In the second source listed, the term is used in a more specific manner in the "mature democracies" of the UK, Australia and New Zealand, to refer to the disengagement of the public from the democratic system, including increasingly low turnout in elections and plummeting political party membership, and the need to renew such engagement. This can be distinguished from the more extreme scenarios addressed by concepts such as 'constitutional rot' (above) 'crisis of democracy' (above) and 'democratic deconsolidation' (see below).

Cross-references

— Constitutional rot.

— Crisis of democracy.

— Democratic deconsolidation.

— Democratic recession.

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See Militant democracy. 

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Definition  |   

i.    Government by the people; esp. a system of government in which all the people of a state or polity (or, esp. formerly, a subset of them meeting particular conditions) are involved in making decisions about its affairs, typically by voting to elect representatives to a parliament or similar assembly; (more generally) a system of decision-making within an institution, organization, etc., in which all members have the right to take part or vote. In later use often more widely, with reference to the conditions characteristically obtaining under such a system: a form of society in which all citizens have equal rights, ignoring hereditary distinctions of class or rank, and the views of all are tolerated and respected; the principle of fair and equal treatment of everyone in a state, institution, organization, etc.

ii.    A state or polity with a democratic system of government; (more generally) any institution, organization, etc., which is run according to democratic principles.

iii.    an ideal of persons working together in the context of political procedures that treat them as equals.

See: J Waldron, 'Democracy' in D Estlund (ed), The Oxford Handbook of Political Philosophy (Oxford University Press, 2012)

See: G O’Donnell, ‘The Perpetual Crises of Democracy’ (2007) 18 Journal of Democracy 5

See: SA Ercan & J-P Gagnon, Editorial: 'The Crisis of Democracy: Which Crisis? Which Democracy?' (2014) 1(2) Democratic Theory 1

See: G Frankenberg, 'Democracy' in M Rosenfeld & A Sajó (eds), The Oxford Handbook of Comparative Constitutional Law (Oxford University Press, 2012)

See: CK Lamont, J van der Harst & F Gaenssmantel (eds), Non-Western Encounters with Democratization: Imagining Democracy after the Arab Spring (Ashgate, 2015)

See: C Tomuschat, ‘Democracy and the Rule of Law’ in D Shelton (ed), The Oxford Handbook of International Human Rights Law (Oxford University Press, 2013)

Note 1: The very basic definitions of democracy above, (i) and (ii) from the Oxford English Dictionary, and (iii) from Jeremy Waldron (first listed source above), relate to the basic notion of democracy as 'rule by the people' as opposed to, for instance, rule by a much smaller group of individuals or institutions, whether it is an absolutist monarch, a cabal of generals, or other élite group. 

Note 2: It is impossible here to capture the full complexity surrounding the term 'democracy': as the author Jonathan Clements puts it, facing such an enormous range of material on a given subject can feel like "foolishly attempting to measure out the sea with a shell." What is important here is to emphasise just how contested the term is. Guillermo O'Donnell (second listed source above) has observed that democracy is the "quintessentially contested concept" (p.6). Similarly, in a 2014 editorial for the Democratic Theory journal Selen Ercan and Jean-Paul Gagnon offer the following (third listed source at p.5):

Democracy is an essentially contested concept. The word is prefaced by over 500 adjectives ... such as liberal, representative, deliberative, feminist, and radical. Thus we must examine what kind of democracy we have in mind when criticizing its current flaws
... Most of the literature confirming the current crisis diagnosis seems to take the traditional conception of representative democracy as a normative standard.

Note 3: For theorists such as Waldron, the notion of political equality is central to representative democracy. For Waldron, contemporary representative democracy realises, albeit imperfectly, the principle of political equality by means of elections, representation by
elected persons, and the legislative process itself. As he argues (at p.200):

In general, we should bear in mind that whatever the vicissitudes of formal decision theory, in the real world, decision procedures will be established in the context of complex institutional arrangements. These include not just political parties and legislative agenda setting but also government through representative assemblies and the organization of an electoral system.

Note 4: Waldron's vision of democracy is a relatively thin conception. In the debate on what constitutes democracy, the main distinction is between 'thin' conceptions, which accord the label of 'democracy' to any state that holds regular, full, free and fair elections, and 'thick' conceptions, which require a range of other elements to be present before a system of government can be accorded this label. 

Note 5: The weight of opinion in scholarship and policymaking tends toward thicker conceptions of democracy. Lawyers (especially continental European lawyers such as Frankenberg (fourth listed source above) or Luigi Ferrajoli) tend to use the term 'constitutional democracy', whereas political scientists more often use the term 'liberal democracy'. However, the term 'liberal constitutional democracy' (or 'constitutional liberal democracy') has become more common in the literature on democratic decay, reflecting the manner in which liberalism, constitutionalism and democracy have become tightly conceptually braided: see 'liberal constitutional democracy' below. 

Note 6: Frankenberg (fourth listed source above) provides a highly useful account of the historical pedigree and perceptions of democracy as a form of government, the ascendance of liberal democracy as a global normative standard, and the tensions and relationships between notions of direct democracy, representative democracy, and deliberative democracy. He also highlights the dangers associated with subversion of democracy, through 'tyrannical majorities' and 'political extremism' (see p.256 et seq.).

Note 7: Adding to the main cleavage between 'thin' and 'thick' conceptions of democracy, in the context of democratic decay worldwide, an even more difficult cleavage has appeared between'good faith' attempts to re-envision democracy, and 'bad faith' projects to hollow out even the basic of democratic rule — such as open and fair political competition and the real possibility of alternation of power between different political parties or forces.

Note 8: Good-faith attempts to re-make democracy identify deficiencies in the prevailing global model of liberal (constitutional) democracy as closing space for genuine participation by the public in policy-making, law-making and public deliberation and according too much political, social and economic power to entrenched networks of élites (however defined), as being too tied to one hegemonic (neo-liberal) economic model, and as according too much geopolitical power to certain self-appointed 'leading democracies': see the discussion of 'liberationist democracy', 'post-liberal democracy', and good populism in 'populism' below. See also the collection by Lamont, van der Harst and Gaenssmantel on 'reimagining' democracy after the Arab Spring (fifth listed source above).

Note 9: Bad-faith attempts to 'capture' the democratic system are often articulated through similar language and critiques of democracy as good-faith critiques. In some cases, it is possible to make some distinction: talk of 'conservative democracy' (see above) or 'illiberal democracy' (see below), for instance, tends to offer a vision of a governance system that accords fewer protections to minorities, to freedom of conscience and expression, and to individual autonomy, yet is offered as more democratic by amplifying the voice of the majority and diminishing élite power (e.g. the judiciary in Hungary, or the military in Turkey). In states where governments have offered such visions, such as Hungary and Turkey, the result has been the same: a concentration of political power in one party and tight control, or manipulation, of elections in order to engineer a false 'voice of the majority' in elections and referendums. Yet, it can be difficult in many cases to identify a bad-faith project to undermine democratic rule, at least at the outset.

Note 10: Ultimately, it remains important to recognise that the meaning of democracy is highly contested, and that we should not see all experimentation with alternatives to liberal democracy as negative, but that there remains a certain core meaning of the concept without which democratic rule is not possible. Two points are particularly crucial here: (i) a baseline for assessing whether a system is genuinely democratic (at the most minimal level) is Scheppele's notion of a 'self-sustaining democracy' (see below); and (ii) as Scheppele also emphasises, public lawyers can help to distinguish good-faith and bad-faith projects by mapping patterns of authoritarian behaviour in various states and using these as a form of 'diagnostic tool'.

Note 11: Despite the contestation surrounding the term 'democracy', and its relationship to human rights and the rule of law, international law tends to treat the notion as a monolithic idea which has a harmonious mutually reinforcing relationship with these other concepts. This is reflected in Christian Tomuschat's treatment (sixth listed source above) of the various mechanisms across regional organisations such as the Council of Europe, the African Union and the Organization of American States to reinforce and protect democratic rule. As he states in his conclusion (p.496): "The rule of law and democracy are elements that constitute essential pillars promoting real enjoyment of human rights." However, the reality is often far more complex than this picture suggests. 

Cross-references

— Conservative democracy.

— Constitutional liberal democracy.

— Liberationist democracy.

— Post-liberal democracy.

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Definition  |   the state-led debilitation or elimination of the political institutions sustaining an existing democracy. 

See: N Bermeo, 'On Democratic Backsliding' (2016) 27(1) Journal of Democracy 5

See: P Norris, ‘Is Western democracy backsliding?  Diagnosing the risks’ (2017) 28(2) Journal of Democracy 1

Note 1: This term can be taken broadly as a synonym for 'authoritarianisation' and 'authoritarian backsliding' (see above). Like Frantz and Kendall-Taylor (see 'authoritarianisation' above), Bermeo (in the abstract of the article) emphasises that this phenomenon has changed in recent decades:

Democratic backsliding (meaning the state-led debilitation or elimination of the political institutions sustaining an existing democracy) has changed dramatically since the Cold War. Open-ended coups d’état, executive coups, and blatant election-day vote fraud are declining while promissory coups, executive aggrandizement and strategic electoral manipulation and harassment are increasing.  Contemporary forms of backsliding are especially vexing because they are legitimated by the very institutions democracy promoters prioritize but, overall, backsliding today reflects democracy’s advance and not its retreat. The current mix of backsliding is more easily reversible than the past mix and successor dictatorships are shorter-lived and less authoritarian. 

Note 2: Bermeo's introduction points to the main features (and problematic aspects) of democratic backsliding as a concept (pp.5-6) : 

The term democratic backsliding is frequently used but rarely analyzed. (...) Part of the problem is the term’s extraordinary breadth. (...) 

This essay unpacks the concept of democratic backsliding by exploring six of its major varieties. It illustrates that forms have varied in frequency over time; that some of the most blatant forms of backsliding are now less common; and that more vexing forms of backsliding are becoming more common. Ironically, we now face forms of democratic backsliding that are legitimated through the very institutions that democracy promoters have prioritized. Overall, trends in backsliding reflect democracy’s slow progress and not its demise.

A close historical look at the varieties of backsliding reveals that the classic open-ended coups d’état of the Cold War years are now outnumbered by what I call promissory coups; that the dramatic executive coups of the past are being replaced by a process that I call executive aggrandizement; and finally, that the blatant election-day vote fraud that characterized elections in many developing democracies in the past is being replaced by longer-term strategic harassment and manipulation.

(...)[T]he term’s current ...meaning is in keeping with its [religious] origins in that it denotes a willful turning away from an ideal. But where does backsliding from democracy lead? Backsliding can take us to different endpoints at different speeds. Where backsliding involves rapid and radical change across a broad range of institutions, it leads to outright democratic breakdown and to regimes that are unambiguously authoritarian. Where backsliding takes the form of gradual changes across a more circumscribed set of institutions, it is less likely to lead to all-out regime change and more likely to yield political systems that are ambiguously democratic or hybrid. Democratic backsliding can thus constitute democratic breakdown or simply the serious weakening of existing democratic institutions for undefined ends. When backsliding yields situations that are fluid and ill-defined, taking action to defend democracy becomes particularly difficult

Note 3: Looking to the final paragraph quoted above, we can see the distinction between outright 'democratic breakdown' (or what Huq and Ginsburg call 'authoritarian reversion'; see above) and concepts that capture a subtler, slower degradation of democratic structures, such as 'autocratic legalism', 'constitutional capture', 'constitutional retrogression' and 'stealth authoritarianism'. 

Cross-references

— Authoritarian backsliding.

— Authoritarianisation.

— Democratic breakdown.

— Democratic decay.

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Definition  |   the rapid replacement of democratic rule with authoritarian governance (e.g. through a military coup d'état). 

See: J Linz & A Stepan (eds), The Breakdown of Democratic Regimes (Johns Hopkins University Press, 1978)

See: S Mainwaring & A Pérez-Liñán, ‘Democratic Breakdown and Survival’ (2013) 24(2) Journal of Democracy 123

Note 1: The concept of 'democratic breakdown' was initially formulated in response to the spread of coups d'état and military dictatorships across Latin America in the 1960s and 1970s. By the mid-1970s the vast majority of states in the region were under military rule. 

Note 2: It is clear that power grabs in previous decades differ starkly from the more incremental contemporary processes of democratic decay captured by terms such as 'autocratic legalism' and 'constitutional retrogression' and were not carried out by democratically elected actors. However, as discussed in the context of 'constitutional coups' (see above), it remains important to recognise that such breakdowns did not occur in a vacuum. As Tom Farer notes in ‘The Rise of the Inter-American Human Rights Regime: No Longer a Unicorn, Not Yet an Ox’ (1997) 19 Human Rights Quarterly 510 at 526, in Uruguay, for instance, the military's of 1973 was preceded by years of military encroachment on civil liberties and freedom:

[I]n the late 1960s, the military launched a "creeping coup," that is the progressive evisceration of civil authority accompanied by a spreading net of arbitrary arrest and excruciating torture, which in the course of the 1970s would achieve Hemispheric preeminence in terms of the percentage of the population trapped in its folds.

Note 3: The article by Mainwaring and Pérez-Liñán above shows that the concept of democratic breakdown continues to have purchase in political science. They apply the term to both consolidated democracies (see 'consolidation of democracy' above) and "semidemocracies" (see 'hybrid regime' below). However, the term is not widely used by legal scholars to refer to contemporary threats to democratic rule, especially given the subtler and more ambiguous nature of democratic decay today. Scholars such as Huq and Ginsburg make a clear distinction between 'authoritarian reversion' (a synonym for democratic breakdown) and 'constitutional retrogression', describing the latter as the dominant threat to contemporary democracies: see 'constitutional retrogression' above. 

Cross-references

— Consolidation of democracy.

— Democratic recession.

— Hybrid regime.

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See Crisis of democracy.

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Definition  |   the incremental degradation of the structures and substance of liberal constitutional democracy. 

See: TG Daly, 'Democratic Decay in 2016', Annual Review of Constitution-Building Processes: 2016 (International IDEA, 2017)

See: TG Daly, 'Diagnosing Democratic Decay', Conference paper, Comparative Constitutional Law Round-table, Gilbert and Tobin Centre for Public Law, UNSW Law School, 7 August 2017

See: M Ottaway, ‘Venezuela: Democratic Decay’, Ch.3 in M Ottaway, Democracy Challenged: The Rise of Semi-Authoritarianism (Carnegie Endowment, 2013)

Note 1: As set out in the Democratic Decay as the Organising Concept section, Democratic decay works as a 'meta-concept' that relates not only to express executive attacks on the structures of democratic government (which is the main focus of concepts such as 'autocratic legalism and 'constitutional retrogression' above) , but also more diffuse undermining of democratic structures by a variety of other political actors (see e.g. 'de-constitutionalism' above), 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' (see 'constitutional rot' above and 'democratic deconsolidation' below).

Note 2: See the Concept Map to get a quick sense of how this meta-concept relates to the overall conceptual terrain. 

Note 3: The term 'democratic decay' is also used as a broad rubric, alongside cognate terms such as 'democratic erosion' by scholars such as Huq and Ginsburg in their work on 'constitutional retrogression' (see above). 

Note 4: 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. 

Cross-references

— Democratic backsliding.

— Democratic breakdown.

— Democratic deconsolidation.

— Democratic erosion.

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Definition  |    a process whereby essential predicates for a consolidated democracy are diminished, including declining public faith in democratic rule, declining public faith in democratic institutions, greater willingness of political actors to violate the rules of the political system, and rising support for antisystem political parties, meaning that democracy is no longer 'the only game in town'. 

See: R Foa and Y Mounk, ‘The Danger of Deconsolidation: The Democratic Disconnect’ (2016) 27(3) Journal of Democracy 5

See: P Norris, ‘Is Western democracy backsliding?  Diagnosing the risks’ (2017) 28(2) Journal of Democracy 1

Note 1: This concept, by focusing on long-term patterns in the perceptions and actions of social and political actors concerning democratic rule, has more in common with Jack Balkin's idea of 'constitutional rot' than concepts such as 'autocratic legalism', 'constitutional capture', or 'constitutional retrogression' which focus more squarely on executive attacks on democratic structures.

Note 2: In line with the term 'consolidation of democracy' (see above), this concept might be expected to relate to younger democracies, which are in a process of, or which have achieved the level of, consolidation of democracy. As discussed above, this can raise the question of how to distinguish between democratic decay and a problematic democratic consolidation process. 

Note 3: The above notwithstanding, Foa and Mounck apply the term more squarely to long-established democracies, with secondary reference to younger democracies in Central and Eastern Europe. At pp.15-16 they state:

In theory, it is possible that, even in the seemingly consolidated democracies of North America and Western Europe, democracy may one day cease to be the “only game in town”: Citizens who once accepted democracy as the only legitimate form of government could become more open to authoritarian alternatives. Stable party systems in which all major forces were once united in support of democracy could enter into phases of extreme instability or witness the meteoric rise of antisystem parties. Finally, rules that were once respected by all important political players could suddenly come under attack by politicians jostling for partisan advantage.

It is at least plausible to think that such a process of democratic deconsolidation may already be underway in a number of established democracies in North America and Western Europe. In the United States, citizens have rapidly lost faith in the political system; in early March 2016, for example, public approval of Congress stood at a mere 13 percent. Wealthy businessman and television personality Donald Trump, having attracted fervent and surprisingly broad support by railing against the political system and promising policies that would openly violate the rights of ethnic and religious minorities, appears to have won the Republican nomination for the presidency of the United States. Meanwhile, even mainstream political actors are increasingly willing to violate the informal rules for the sake of partisan advantage: To name but one example of the resulting gridlock and constitutional dysfunction, the U.S. Senate has refused even to consider President Barack Obama’s nominee for a vacant seat on the Supreme Court.

In Europe, too, there have been many signs of democratic deconsolidation in recent years. Approval ratings for the continent’s leading politicians stand at record lows, and citizens have grown deeply mistrustful of their political institutions. Far-right populist parties, such as France’s National Front or the Sweden Democrats, have risen from obscurity to transform the party system of virtually every Western European country. Meanwhile, parts of Central and Eastern Europe bear witness to the institutional and ideological transformations that might be afoot: In Poland and Hungary, populist strongmen have begun to put pressure on critical media, to violate minority rights, and to undermine key institutions such as independent courts.

Note 4: Pippa Norris (listed above) takes issue with Foa and Mounk's analysis, arguing that the data does not support a finding that public faith in democracy is declining across Western states (p.2):

When compared with their parents and grandparents, there is evidence in Anglo-American democracies that Millennials express weaker approval of democratic values, as claimed by Foa and Mounk. But this is not a consistent pattern across two-dozen diverse Western democracies; elsewhere, in several countries such as Spain and France, there are no significant trends by birth cohort. This pattern may also be a life-cycle rather than a generational effect. When evaluating the performance of how democracy works in their own country, the evidence confirms that deep dissatisfaction persists among critical citizens living in several states in Mediterranean Europe, as long observed in Italy and Greece. But over the last four decades, those living in Northern Europe and Scandinavia are consistently more satisfied with how democracy works. Moreover cultural attitudes and values are proxy indices of liberal democracy and not equivalent to more sticky political institutions; old floorboards can crack for years without the foundations collapsing.

Cross-references

— Consolidation of democracy.

— Constitutional rot.

— Political decay.

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Definition  |   How long any given democratic system will endure into the future, assessed against a range of criteria. 

See: A Przeworski, M Alvarez, JA Cheibub & FLimongi, 'What Makes Democracies Endure?' (1996) 7(1) Journal of Democracy 39

Note 1: Przeworski and his co-authors generally used the term as an alternative to 'consolidation of democracy' (see above), focusing more narrowly on whether a democratic system would endure into the near future, and which factors were important in assessing this. Their explanatory note for the article explains their approach as follows:

If a country, any randomly selected country, is to have a democratic regime next year, what conditions should be present in that country and around the world this year? The answer is: democracy, affluence, growth with moderate inflation, declining inequality, a favorable international climate, and parliamentary institutions.

This answer is based on counting instances of survival and death of political regimes in 135 countries observed annually between 1950 or the year of independence or the first year when economic data are available (“entry” year) and 1990 or the last year for which data are available (“exit” year), for a total of 4,318 country-years. 1 We found 224 regimes, of which 101 were democracies and 123 dictatorships, observing 40 transitions to dictatorship and 50 to democracy. Among democratic regimes, there were 50 parliamentary systems, 46 presidential systems, and 8 mixed systems.

Our definition of democracy is a minimalist one. We follow Robert A. Dahl’s 1971 classic Polyarchy in treating as democratic all regimes that hold elections in which the opposition has some chance of winning and taking office. When in doubt, we err in the direction of calling a regime dictatorial. Our classification is not idiosyncratic, but is closely related to several alternative scales of democracy. The rationale and the rules for classifying regimes are discussed in the Appendix below.

Note 2: The concept of 'democratic endurance' has clear resonance with the concept pof 'constitutional endurance' (see above). However, its focus on quantitative analysis of a very broad range of democratic systems worldwide may be contrasted with the qualitative analysis of a very limited number of case-studies in the legal literature on constitutional endurance. 

Cross-references

— Constitutional endurance.

— Democratic resilience.

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Definition  |   a broad rubric used to refer to democratic backsliding and the breakdown of democratic regimes. 

See: Democratic Erosion online resource (social science) 

Note 1: This term is the rubric used by the very useful Democratic Erosion resource developed by (mainly) US social scientists through a broad cross-university collaboration. The resource includes a syllabus, among which the readings for 'Definitions and Theories of Democratic Erosion' include key readings on 'democratic breakdown' and 'democratic backsliding'.

Note 2: 'Democratic erosion' is also broadly used by a variety of scholars to refer to what is described as 'democratic decay' here, and is used interchangeably with 'democratic decay'. David Landau uses the term in his work on 'abusive constitutionalism' (see above), as do Huq and Ginsburg in their 'constitutional retrogression' framework (see above). The term is generally used as a rather broad rubric rather than having clearly defined conceptual contours. 

Cross-references

— Democratic backsliding.

— Democratic breakdown.

— Democratic decay.

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Definition  |   the web of longstanding commitments to free and fair elections, the separation of powers, basic human rights and government accountability without which democratic governance is not possible. 

See: R Dixon, ‘Populist Constitutionalism and the Democratic Minimum Core’ Verfassungsblog 26 April 2017

Note 1: Ros Dixon and David Landau employ this term to capture the essential minimum predicates of a democratic system:

There are a range of important and challenging definitional issues, for any court or scholar, in seeking to define what is within, or outside, the scope of the “democratic minimum core”. The idea, as Landau and I understand it, is not based on political theory, or transcendental understandings of democracy, but rather on the actual practices of existing constitutional democracies.  Deciding what counts as “sufficient consensus” among democracies in this context is also clearly a difficult evaluative exercise.) Among other things, it requires deciding how best to characterise the appropriate level of abstraction in comparing different practices, and the global versus regional nature of relevant democratic commitments.

These difficulties, however, are far from insurmountable: in criticising recent constitutional changes in Hungary, Poland and Turkey, the EU and Venice Commission arguably relied on a Europeanised version of just this kind of idea. There is also implicit support for the idea in the decisions of the Supreme Court of India, the Constitutional Court of Colombia and the CCSA.7)

Cross-references

— Constitutional liberal democracy.

— Democracy.

— Populist constitutionalism.

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See Quality of democracy.

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Definition  |    the reversal of a decades-long global expansion of democratic rule, encompassing four categories: (i) a deepening of authoritarianism in non-democratic states; (ii) an acceleration in the breakdown of democratic regimes; (iii) a decline in the stability or quality of democracy in younger democracies; and (iv) a decline in the vigour of long-established democracies, both in their internal democratic performance and in their faith in, and willingness to engage in, democracy promotion abroad.

See: L Diamond, ‘Facing Up to the Democratic Recession’ (2015) 26(1) Journal of Democracy 141

See: P Schmitter, ‘Crisis and Transition, but Not Decline’ in L Diamond & M Plattner (eds), Democracy in Decline? (JHU Press, 2015)

Note 1: ‘Democratic decay’, in the sense used in this Resource, may be viewed as a subset of the phenomenon of democratic recession, relating to categories (ii) and (iv) above; namely, a decline in the quality of democracy in both younger and long-established democracies, which falls short of a democratic breakdown.

Note 2: The idea that there is a general global recession of democracy is disputed. In a 2015 collection featuring Diamond's work asserting a 'democratic recession' the leading democracy theorist Philippe Schmitter – taking a global view – spoke of “pressures, not to dismantle or destroy democracy as such but to change the way democracy is being practiced.” (p.40) Similarly, some scholars and policymakers emphasise the resilience of democratic systems worldwide: see the discussion of International IDEA's global assessment of democracy in 'Democratic resilience' below. 

Cross-references

— Authoritarian backsliding.

— Democratic backsliding.

— Democratic breakdown.

— Democratic decay.

— Democratic resilience.

— Hybrid regime.

— Modern authoritarianism.

— Reverse wave of democratisation.

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Definition  |   the capacity of a democratic regime to sustain competitive democratic politics and to withstand efforts from within to undermine its democratic foundations. 

See: R Albert & M Pal, 'The Democratic Resilience of the Canadian Constitution' in M Graber, S Levinson & M Tushnet (eds), Constitutional Democracy in Crisis? (Oxford University Press, forthcoming 2018)

See: The Global State of Democracy: Exploring Democracy’s Resilience (1st edn, International IDEA, 2017)

Note 1: The notion of democratic resilience, in its focus on the positive capacity of a democratic system to sustain itself and to withstand attacks from within, might be viewed as lying in opposition to concepts that focus on the threats to democracy, such as 'autocratic legalism', 'constitutional retrogression', and 'constitutional capture'. As Albert and Pal state:

In our view, it is not possible to fully understand the phenomenon of democratic decline without studying how successful constitutional democracies have resisted it. We refer to this countervailing phenomenon as democratic resilience, meaning the capacity of the regime to sustain competitive democratic politics and to withstand efforts from within to undermine its democratic foundations. We exclude resilience from external threats, such as war, from the concept so as to focus on democratic sustainability in the face of internal threats. We distinguish our concept of democratic resilience from a recently theorized idea of constitutional resilience, which is similar in cause but different in outcome.

Both democratic and constitutional resilience refer to how well a constitutional order is equipped to survive serious shocks while retaining its core purpose. Both go beyond what has been characterized as constitutional endurance, a measure of how long a constitution lasts, whether it has been changed by amendment or interpretation, transformed unrecognizably by a major reform brought on by an emergency period, or whether it has remained unchanged throughout. What matters to both democratic and constitutional resilience is not simply the survival of the existing constitution over time; it is more importantly directed to how the constitution continues to operate. The critical difference between the two rests on their normative aspirations: constitutional resilience is concerned with ensuring the constitution can continue to function consistent with its primary values, whether or not those values are democratic. It is a decidedly a normative concept that takes no view on what makes a good constitution. What matters for constitutional resilience is principally that the constitution be capable of surviving shocks.

We are instead concerned with the resilience of a constitution’s democratic institutions and their rules of political competition in the face of threats to the regime that risk weakening their strength. Democratic resilience is therefore rooted in a normative judgment about what in the constitution is worth preserving. For our present purposes, we focus on what makes it possible for a constitution’s democratic character to resist pressures that could otherwise deteriorate the conditions for democracy in the regime and lead to its decline or its outright extinguishment.

Note 2: Democratic resilience is also the theme of International IDEA's flagship publication on the global state of democracy (listed above), first produced in 2017. In Chapter 3, on ''Threats from within: democracy's resilience to backsliding', Catalina Uribe Burcher and Sumit Bisarya focus on what safeguards remain even where the democratic system is under attack. Their introduction sets out their approach as follows (p.70):

What can be done when the instruments of democracy are used to undermine it from within? Threats to democracy from those in power constitute some of the gravest affronts to the global state of democracy today. These leaders manage to increase their political power by manipulating electoral norms, restricting dissent and freedom of speech, and reforming the constitution to extend their terms in office—all within the legal framework of the democratic system. Most alarming, these actions have a ripple effect on the functioning of institutions beyond those directly targeted, and affect people’s safety, wellbeing and livelihoods. Some countries have diverted from this dangerous path towards authoritarianism. This chapter focuses on factors that help resist or counteract democratic backsliding, including leveraging citizen preferences for democracy, generating change from the bottom up, and taking advantage of the remaining (if frail) checks and balances. It examines cases of recent backsliding in Hungary, Poland, Sri Lanka, Venezuela and Zimbabwe.

Note 3: Kim Scheppele uses the rubric 'self-sustaining democracy' (see below) to discuss the same issue, although she focuses more squarely on institutional constraints and arrangements than Uribe Burcher and Bisarya above, for whom 'checks and balances' are just part of a larger equation. 

Cross-references

— Constitutional endurance.

— Democratic decay.

— Democratic endurance.

— Self-sustaining democracy.

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See Democratic breakdown.

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See Hybrid regime.

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See Hybrid regime.

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See Authoritarianism.

See Constitutional dictatorship.

See Hybrid regime.

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Definition  |   a system of governance featuring a civilian government and regular elections, but in which the military (or possibly another veto actor) plays a significant tutelary role

See: M Bünte, 'Burma’s Transition to “Disciplined Democracy”: Abdication or Institutionalization of Military Rule?' GIGA Working Papers No.177 (August 2011)

See: S Aksin, Turkey, from Empire to Revolutionary Republic: The Emergence of the Turkish Nation from 1789 to Present (NYU Press, 2007)

Note 1: Most famously used by the military to describe the system of government in Myanmar (Burma), the term has also been used to describe governance in Turkey after the 1981 military coup d'état, based on a new Constitution of 1982, which remains in force today (albeit extensively amended): see Aksin above (p.280). 

Note 2: As regards democratic decay, this term is most relevant as regards Turkey. Many of the constitutional and political reforms undertaken during the first governments of the Justice and Development Party (AKP) under Recep Tayyip Erdoğan (2002-2014) were welcomed as reducing the influence of the military in governance. However, constitutional reforms and political practice since 2014 are viewed as having moved Turkey toward authoritarian government, especially by switching from a parliamentary to a presidential system, and according greater control of the judiciary to the executive. In this sense, Turkey has moved from a democratising 'disciplined democracy' to a different form of (quasi-authoritarian) 'hybrid regime' (see below) through a process of what might be called 'autocratic legalism', 'constitutional capture' or 'constitutional retrogression' (see above) - or as Turkish scholars have termed it, 'de-constitutionalism' (see above). 

Cross-references

— Constitutional liberal democracy.

— Democracy.

— Hybrid regime.

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See Hybrid regime. 

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See Hybrid regime. 

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Definition  |   

i.   a system in which elections are held but key elements of liberal constitutional democracy are absent, such as adequate checks and balances and rights protection: synonym for hybrid regime

ii.   the starting point of a state that has made the initial transition from authoritarian rule to democratic rule through the holding of full, free and fair elections, but where other key elements of democratic governance, such as functioning checks and balances, have yet to be developed through the 'consolidation of democracy'.

See: S Levitsky & LA Way, ‘The Rise of Competitive Authoritarianism’ (2002) 13(2) Journal of Democracy 51

See: G O’Donnell, ‘Illusions About Consolidation’ (1996) 7(2) Journal of Democracy 34

Note 1: The first definition of 'electoral democracy' above indicates that the term is used as a synonym for 'hybrid regime' that blends elements of democratic and authoritarian rule (see 'hybrid regime' below). Such a regime may reflect a system undergoing transformation (from democratic to less democratic government, or from authoritarian to more democratic government) or a stable governance system that lies in a 'grey zone' between democratic and authoritarian rule. 

Note 2: The second definition above marks a positive, or at least more value-neutral, use of the term, to denote a post-authoritarian state at the beginning of the process of consolidating democratic governance: see 'consolidation of democracy'. Guillermo O'Donnell (see above pp.42-5) describes the four key regime types in the political science literature as authoritarian, electoral democracy, liberal democracy, and advanced democracy, with electoral and liberal democracy representing "the empirical referents of all debate on democratic consolidation."

Cross-references

— Consolidation of democracy.

— Hybrid regime.

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See Hybrid regime.

See Modern authoritarianism. 

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Definition  |  a political ideology encompassing three core themes: (i) the quest for a ‘new man’, which required the creation of new forms of dynamic leadership; (ii) the celebration of the holistic nation, though this did not necessarily mean militaristic expansionism outside states with major geopolitical aspirations; and (iii) the quest for a Third Way, which would inspire the community and promote economic prosperity. Within this matrix there were notable differences about issues such as the role of violence, biological racism, and the nature of the totalitarian state.

See: R Eatwell, 'Fascism' in M Freeden & M Stears (eds), The Oxford Handbook of Political Ideologies (Oxford University Press, 2017)

See: M Albright, Fascism: A Warning (Harper Collins, 2018)

Note 1: Eatwell notes: "Although strands of proto-fascist thought can be identified before 1914, it was only after the First World War that a syncretic fascist ideology emerged. (...)". He also states: "However, since 1945 fascism has been a pariah with only a handful of mainly former supporters seeking to reanimate its ideology". 

Note 2: That said, it is relatively common to find today's would-be autocrats described as 'fascists' or 'neo-fascists', e.g. John McCain described Prime Minister Viktor Orbán of Hungary as a "neo-fascist dictator" in 2014. Madeleine Albright, former US Secretary of State, in her book describes a fascist as "someone who claims to speak for a whole nation or group, is utterly unconcerned with the rights of others, and is willing to use violence and whatever other means are necessary to achieve the goals he or she might have.” She applies the term to discuss the rise and rule of leaders including Hungary’s Viktor Orban, Venezuela’s Hugo Chávez, Turkey’s Recep Erdogan, and Russia’s Vladimir Putin.

Note 3: Certainly, there are parallels in way many problematic executives today combine populism with authoritarianism and nativism (see 'populism' below). However, in comparison with twentieth-century fascist regimes, today's problematic regimes do not tend to cleave to a clear ideology, do not engage in the same level of political symbolism, and show varying commitment to totalitarian control (see 'totalitarianism' below).

Cross-references

— Authoritarianism.

— Hybrid regime.

— Totalitarianism.

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Definition  |    When, through an exercise in 'abusive' comparative constitutional law, perfectly legal and reasonable constitutional components (or problematic components from otherwise well-functioning democratic systems) are stitched together to create a 'monster', i.e. a governance system that undermines democratic rule.

See: KL Scheppele, 'The Rule of Law and the Frankenstate: Why Governance Checklists Do Not Work' (2013) 26(4) Governance 559

Note 1: Scheppele uses the concept of the Frankenstate to capture the growing trend toward 'abusive' comparative constitutional law, where democratically elected but fundamentally anti-democratic governments take reasonable constitutional mechanisms from other states (or cherry-pick problematic institutions and legal mechanisms from otherwise well-functioning democratic systems), and combine them to undermine the democratic system as a whole.

Note 2: Scheppele's analysis highlights why democratic decay (or more specifically, 'autocratic legalism' in her parlance) poses such a challenge for scholars and policymakers concerned with identifying attacks on democratic rule and identifying remedial action (pp.559-560):

Around the world, organizations are developing indicators of the rule of law that measure whether countries have more or less of it. However, such indicators often miss something crucial: interaction effects among the elements that, if recognized appropriately, would send a country from the top to the bottom of the scale.

The rule of law is one of the few political desiderata that generate little opposition from any corner of the world. It compels so much agreement because it is a famously fuzzy concept. Push a little on it and it deconstructs into formal criteria (regularity, predictability), narrow institutional programs (building courthouses, training judges), and vague ideals (legality, equality under the law).

Indicators often reduce the complex judgment about the level of the rule of law to a few isolated and component parts. How many judges have been trained? How many judicial decisions have been enforced? Does the country guarantee appeals from administrative decisions? Does it offer a chance for all aggrieved parties to be heard? Indicators compiled from checklists are designed to make objective the assessment of whether countries are doing well or badly.

However, checklists typically assume there are no interaction effects that undermine the list's integrity.  (...)

When perfectly legal and reasonable constitutional components are stitched together to create a monster ... I call it a Frankenstate. Victor Frankenstein's monster—nameless in Mary Shelley's novel—was assembled from various component parts of once recognizably reasonable bodies. However, he went on to look and act a monster. The Frankenstate, too, is composed from various perfectly reasonable pieces, and its monstrous quality comes from the horrible way that those pieces interact when stitched together. 

Cross-references

— Bad faith constitutionalism.

— Hybrid regime.

— Rule by law.

— Rule of law

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Definition  |   a system characterized by weak checks and balances on executive powers, flawed or even suspended elections, fragmented opposition forces, state restrictions on media freedoms, intellectuals, and civil society organizations, curbs on the independence of the judiciary and disregard for rule of law, the abuse of human rights by the security forces, and tolerance of authoritarian values. 

See: P Norris, ‘Is Western democracy backsliding?  Diagnosing the risks’ (2017) 28(2) Journal of Democracy 1

See: A Bozóki, 'Illiberal Democracy Belongs to the Hybrid Regimes: Reflections on Jeffrey C. Isaac’s Illiberal Democracy' Public Seminar 2 August 2017

See: S Levitsky & LA Way, Competitive Authoritarianism: Hybrid Regimes after the Cold War (Cambridge University Press, 2010)

See: S Levitsky & LA Way, ‘The Rise of Competitive Authoritarianism’ (2002) 13(2) Journal of Democracy 51

Note 1: The definition above is from p.12 of the original working paper on which the first source above, by Pippa Norris, is based. The second listed source, by András Bozóki, provides a useful summary of the conceptual terrain covered by this term. In the introduction he states: 

Since the end of the “transition paradigm”[the paradigm based on widespread transitions from authoritarian to democratic rule from the 1970s onward - see 'reverse wave of democratisation' below] which displayed an optimistic belief in political progress, analysts had to accept that the development from dictatorship to democracy could be halted or reversed. General expectations notwithstanding, the democratic upheaval of 1989-1991 did not end in turning all dictatorships into liberal democracies. Not only the countries of “democracy by default” became authoritarian, but even formerly consolidated, liberal democracies could backslide to hybrid regimes, “combining democratic and authoritarian elements.” While the number of liberal democracies increased significantly, it is even more important to note a growing grey zone lying between democracies and dictatorships, where hybrid regimes thrive.

...

These regimes have been termed variously: as semi-democracies, semi-dictatorships, “guided,” “sovereign” or “managed” democracies, delegative democracies, illiberal democracies, liberal autocracies, electoral authoritarianisms, competitive authoritarianisms and the like. As early as 1986, O’Donnell and Schmitter already recognized the existence of some transitory regimes, such as democradúra (sic) and dictablanda, based on the Latin American experience. It soon became clear that the defining democracy and dictatorship was not simply an “either-or” question, but a problem of “more or less.” Countries in the grey zone contain some elements of democracy and authoritarianism at the same time, albeit in different proportion. But even if it is a “more or less” issue, one has to be able to identify the Rubicon, a particular historical juncture or moment, which needs to be crossed at times of regime change. Even if it is true that dictatorships do not develop to democracies overnight, nor fall back to dictatorships with the same speed, still we have to able to find the borders between liberal democracies, hybrid regimes, and dictatorships. Even on the “more or less” axis, there are some turning points that separate the three different regimes from each other.

Hybrid regimes have the common feature that they all have competition, although the political elite in power deliberately rearranges state regulations and the political arena as to grant itself undue advantages. For all practical purposes, they are all beneficiaries of an “uneven playing field.” 

Note 2: It is important, when employing the term 'hybrid regime', to recognise that some hybrid regimes fit within the democratic decay framework in that they have resulted from negative transformation of a previously democratic system. However, other hybrid regimes have never been democratic, either being slowly liberalising 'hard' authoritarian regimes or stable systems of government that combine elements of democratic rule (e.g. elections) and authoritarian rule (e.g. few checks and balances). See e.g. the discussion of authoritarian constitutionalism in Note 3 of 'constitutionalism' above.

Note 3: Levitsky and Way (third listed above) argued in 2002 that the (then) prevailing approach to hybrid regimes was distorted by an assumption that such regimes were on a path toward democracy (pp.51-2):

In recent years, many scholars have pointed to the importance of hybrid regimes. Indeed, recent academic writings have produced a variety of labels for mixed cases, including not only “hybrid regime” but also “semidemocracy,” “virtual democracy,” “electoral democracy,” “pseudodemocracy,” “illiberal democracy,” “semi-authoritarianism,” “soft authoritarianism,” “electoral authoritarianism,” and Freedom House’s “Partly Free.”. Yet much of this literature suffers from two important weaknesses. First, many studies are characterized by a democratizing bias. Analyses frequently treat mixed regimes as partial or “diminished” forms of democracy, or as undergoing prolonged transitions to democracy. Such characterizations imply that these cases are moving in a democratic direction. Yet as both Jeffrey Herbst and Thomas Carothers have recently argued, this is often not the case. Although some hybrid regimes (Mexico, Senegal, Taiwan) underwent democratic transitions in the 1990s, others (Azerbaijan, Belarus) moved in a distinctly authoritarian direction. Still others either remained stable or moved in multiple directions (Malaysia, Russia, Ukraine, Zambia, Zimbabwe), making the unidirectional implications of the word “transitional” misleading

Note 4: As the quotation above notes, in Freedom House's tripartite classification of states as 'Free', 'Partly free' and 'Not free', the second category refers to hybrid regimes.

Cross-references

— Authoritarian backsliding.

— Authoritarianisation.

— Authoritarianism.

— Dictablanda.

— Illiberal democracy.

— Majoritarian autocracy.

— Modern authoritarianism.

— Totalitarianism.

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Definition  |   

i.   democratically elected regimes which routinely ignore constitutional limits on their power and deprive their citizens of basic rights and freedoms. 

ii.   democracy without rights. A phenomenon whereby voters are growing impatient with independent institutions and less and less willing to tolerate the rights of ethnic and religious minorities.

See: F Zakaria, ‘The Rise of Illiberal Democracy’ (1997) Foreign Affairs 22

See: Ch.5 'The Rise of Illiberal Democracies' in A Puddington, 'Breaking Down Democracy: Goals, Strategies, and Methods of Modern Authoritarians' (Freedom House, June 2017)

See: Y Mounk, The People Vs. Democracy: Why Our Freedom Is in Danger and How to Save It (Harvard University Press, 2018)

See: Democracy Reporting International, 'False Frames: How We Undermine Democracy with Careless Language'. Briefing Paper 89 (November 2017)

See: L Pech & KL Scheppele, 'Poland and the European Commission, Part I: A Dialogue of the Deaf?' Verfassungsblog 3 January 2017

Note 1: Zakaria's definition, at (i) above, fits within the concept of 'hybrid regime' above. Zakaria's 1997 article, listed above, coined the term and has led to wide use of the term 'illiberal democracy'. However, the aptness of the term has been contested: see Note 3 below. 

Note 2: The term, as defined by Zakaria, is widely used. See e.g. reports by Freedom House: the fourth source listed above. Freedom House also employs the term 'illiberalism' as a synonym, e.g. defining it in Nations in Transit 2018: Confronting Illiberalism (Freedom House, 2018) as "an ideological stance that rejects the necessity of independent institutions as checks on the government and dismisses the idea of legitimate disagreement in the public sphere."

Note 3: A range of scholars, including Laurent Pech, Kim Scheppele and Dan Kelemen, and organisations including Democracy Reporting International (DRI), eschew use of the term 'illiberal democracy'. In a briefing paper decrying use of the term (fourth listed source above), DRI argues against the term as follows (p.3):

Next to populism, “illiberal democracy” is often used to describe the aspirations of some parties or the reality in countries like Hungary, Poland or even Russia.

The political commentator Fareed Zakaria publicised the term “illiberal democracy” in 1997, arguing that in more and more countries, democratically elected leaders were curtailing the fundamental freedoms of their citizens. The problem with his argument is that in the countries he cited as examples, such as Russia or Kazakhstan, leaders were not democratically elected. A country is not an electoral democracy simply because people have the chance to cast a vote. Communists and Nazis held elections.

The idea of an ‘illiberal democracy’ has no basis in political science or international law.

Even the most minimal scientific defintion of democracy, proposed by Joseph Schumpeter, namely “a competitive struggle for votes”, presupposes ‘competition’, i.e. a level-playing field. Throwing opponents into jail or abusing media to only broadcast one message undermines competition. Schumpeter did not think that the Third Reich or the Soviet Union were democracies simply because they held elections. Other, wider definitions by political scientists include political rights. The same goes for obligations of states under international law, which makes clear that democratic participation is not limited to voting. The right to vote is only one expression of the wider right to political participation. (...)

In short, the right to vote is not a stand-alone right but it stands and falls with other political rights. A democratic election requires political freedoms: political parties and candidates must be able to compete under equal conditions, the media must be free and pluralistic, and citizens must be free to express themselves. These conditions were not present in the countries Zakaria cited, and they are rapidly weakened in the newly emerging “illiberal” states.

Democracy also requires institutions (such as independent courts) to protect these freedoms. For example, once the Polish PiS party paralysed the country’s constitutional court, the opposition was unable to defend its rights in parliament through any legal means. When a large part of the population cannot be effectively represented in parliament, it is a problem with democracy, not with liberalism. Together, these rights and institutions make up a democracy. If they are not present, a state does not become illiberal, it becomes less democratic or outright authoritarian.

Note 4: Pech and Scheppele (fifth listed source above) suggest that governance systems in states such as Poland and Hungary should be called 'majoritarian autocracies' rather than 'illiberal democracies'. However, majoritarian autocracy itself may be a misleading term given that governments in Hungary and Poland have manipulated electoral laws and processes to stack the electoral odds in their favour. The Polish vice-Prime Minister has gone as far as to suggest that families with children should be accorded an additional vote per child, which would dramatically skew how 'the majority' is identified, and cut across the foundational democratic principle of political equality between citizens. As the Democracy Reporting International paper argues (p.4): 

A conception of democracy as a majority will without limitations is a tyranny of the majority. Furthermore, the characterisation of authoritarian parties as only believing in the majority will – as  opposed to checks and balances – is not backed by evidence. They only do so as long as the majorities are in their favour. Neither Poland’s PiS, nor Hungary’s FIDESZ party, nor Donald Trump propose to abolish the courts. Instead, they want to bring them under their control. Indeed, Prime Minister Orban of Hungary, who pretends to be close to the people, has barricaded his political beliefs behind far-reaching constitutional – and other – protections. The talk of “illiberal democracy” thus provides a sense of philosophical sophistication to something that is better described as a power grab.

Indeed, using the idea of “illiberal democracy” feeds a new frame that is being constructed around the supposed juxtaposition of traditional-conservative versus progressive-liberal views. Authoritarian leaders say: “Don’t ask me how I govern, ask me how I defend our culture and way of life”. This helps autocratic leaders shift the dominant frame of thinking about politics because it implies a battle about political ideologies – pro- or anti-liberalism – what is in fact an attack on democracy. In short, it’s not about liberalism, it’s about democracy. The methodology used by Inglehart and Norris supports such a re-framing as it also does not distinguish democratic and anti-democratic elements of political platforms, but builds an opposition of “populist” versus “cosmopolitan liberal”.

Note 5: The second definition above is offered by Yascha Mounk (p.14 of the book listed). Compared to Zakaria's definition of the term, which focuses on the attitudes of elected governments, Mounk's use of the term approaches it from the rather different perspective of the electorate becoming more illiberal (although the two are clearly linked). 

Cross-references

— Authoritarian backsliding.

— Authoritarianisation.

— Authoritarianism.

— Conservative democracy.

— Hybrid regime.

— Illiberalism.

— Majoritarian autocracy.

— Modern authoritarianism.

— Totalitarianism.

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See Illiberal democracy.

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Definition  |   the idea that the health of some democratic states matters more than others, as regards sustaining democracy worldwide.

See: TG Daly, ‘Democratic Decay in ‘Keystone’ Democracies: The Real Threat to Global Constitutionalism?’ ICONnect blog 15 May 2017

See: MF Plattner, ‘The end of the transitions era?’ (2014) 25(3) Journal of Democracy 5

Note 1: The idea of 'keystone democracies' was raised in a 2017 column on the ICONnect (International Journal of Constitutional Law) blog. An edited excerpt provides the overall idea:

Does decay in some democracies matter more than others, and would significant decay in a small number of key democracies worldwide spell the end of global constitutionalism? Conservation biologists speak of ‘keystone species’: a species so disproportionately important to its ecosystem that its disappearance can remodel the entire system, set in train a negative ‘domino effect’ for the other species in the system (leading to widespread extinction at its extreme), or open a space for new invasive species. In the context of the global democratic ecosystem, which has supported (and been supported by) the emergence of global constitutionalism, do some states count as ‘keystone democracies’ whose removal could profoundly undermine the system as a whole? This is not mere conjecture: recent research, for instance, has shown that a regional political context supportive of democracy, reflected in the presence of other democracies in the region, is a strong factor in the sustainability of each individual domestic democratic system in the region. The converse is also true: authoritarian regimes perceived as successful breed imitators.

At the global level, on democratic influence and profile alone we might reel off a list of keystone democracies that includes the US, the UK, France and Germany in ‘the West’. Non-Western keystone democracies might include India, South Africa, South Korea, Japan, and Brazil. These democracies may matter more than others for a variety of reasons, whether because they play an outsized role in the global imagination as symbols of democracy (for different reasons); provide leading institutional models of liberal constitutional democracy (especially the US, Germany, India, South Africa, and South Korea); or are actively engaged in significant concrete democracy promotion outside their borders (admittedly with often mixed results). Almost all are key actors in the functioning of the international order as we know it.

Writing in 2016, for instance, Ted Piccone of the Brookings Institution suggested that the fate of the “liberal international order” hinges on a group of what he called “five rising democracies”—India, Brazil, South Africa, Turkey, and Indonesia. While Piccone’s prognosis was quite positive (mirroring other rather rosy takes on the eclipse of the West), since the book’s publication in February 2016 Turkey has taken a decidedly authoritarian direction (the narrowly passed 16 April referendum this year is seen by many as voting in a constitutional dictatorship); Brazil has entered into serious democratic crisis (centred on impeachment of President Rousseff and its aftermath); concerns are increasingly being raised about the democratic health and trajectories of India and South Africa under Prime Minister Modi and President Zuma; and Jakarta’s recent gubernatorial elections have raised questions regarding rising sectarianism in a young democracy admired for its tolerance.

Of course, decay in any democracy is a cause for serious concern, and it also must be recognised that democracy is not dying worldwide—as Tom Carothers and Richard Youngs reminded us in a recent op-ed. Yet, your columnist, as an Irishman, is keenly aware that not all democracies were created equal, in terms of symbolic, cultural, and geopolitical power. Decay in the world’s keystone democracies–however we decide who deserves the title–would deal a bigger blow to the global democratic project, and global constitutionalism, than decay elsewhere. It would not extinguish it, but, by tipping the balance away from the centrality of human rights, democracy and the rule of law, could leave it a much diminished force over time. At its simplest, any one instance of democratic decay in a keystone democracy further raises the risk of international relations degenerating into a game of naked power play rather than a structured ‘constitutional’ interaction with rights and law at its core. As Piccone puts it: “It is impossible…to imagine a better world without a solid foundation of democratic societies that respect human rights and practice tolerance and cooperation.”

Note 2: In a 2014 article on the end of the 'transitions era' (i.e. the decades-long global spread of democracy through transitions from authoritarian to democratic rule) Marc Plattner opined at p.16: “Perhaps the most fatal blow to the cause of democracy would be the breakdown of democracy in a country where it has been strong and stable.” This focus on 'core' long-established democracies should not overlook the potentially highly negative effect of a significant number of younger and smaller democracies transforming into hybrid regimes (or worse). 

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Definition  |    

i.    Attachment to or observance of law or rule.

ii.   The quality or state of being legal or in conformity with the law; lawfulness. Also (in early use): legitimacy.

See: KL Scheppele, 'Autocratic Legalism' (2018) 85 The University of Chicago Law Review 545

Note 1: The concept of legality, defined above by the Oxford English Dictionary, lies at the heart of so many understandings of democratic decay. Many scholars, including Kim Scheppele, Tom Ginsburg, Tomek Koncewicz, Jan-Werner Muller and David Landau emphasise that the use of law to hollow out democratic rule is a hallmark of newer forms of 'hybrid' governance, which features elements of both democratic rule (e.g. elections) and authoritarian rule (e.g. concentration of political power, diminished or absent institutions of accountability). Sophistication in how the law is used varies, but at its most sophisticated it can render identification of a problematic trajectory difficult, especially in its early stages. 

Cross-references

— Abusive constitutionalism.

— Constitutional capture.

— Constitutional retrogression.

— Constitutionalism.

— Rule by law.

— Rule of law.

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Definition  |     a democratic system that, at minimum, includes the civil and political rights employed in the democratic process, and the availability of neutral electoral machinery, and the stability, predictability, and publicity of legal regime usually captured in the term 'rule of law'. 

See: AZ Huq and T Ginsburg, ‘How to Lose a Constitutional Democracy’ (2018) 65 UCLA Law Review 95

See: TG Daly, 'Democratic Decay in 2016', Annual Review of Constitution-Building Processes: 2016 (International IDEA, 2017)

See: KL Scheppele, 'Autocratic Legalism' (2018) 85 The University of Chicago Law Review 545  

Note 1: This term - expressed as 'liberal constitutional democracy' (e.g. Scheppele, Daly) or 'constitutional liberal democracy' (e.g. Huq and Ginsburg) reflects the manner in which liberalism, constitutionalism, and democracy have become tightly conceptually braided in recent decades, especially since the global 'third wave of democratisation' from the 1970s onward. To elaborate, Huq and Ginsburg's use of the term (from which the definition above is sourced) reflects their understanding that a thin procedural conception of democracy based on elections is insufficient and also that ‘liberal democracy’ is an incomplete label in that it tends to elide the outsized role that constitutional law and constitutionalism have increasingly played in our prevailing understandings of ‘true’ democracy. The latter is evidenced in the triumph in recent decades of ‘thicker’ conceptions of democracy and the ‘constitutionalisation’ of democracy, as bills of rights have grown progressively longer and constitutions have become more prescriptive regarding the functioning of democratic institutions.

Note 2: This concept reflects a broad consensus among scholars and policymakers that 'true' democratic governance requires more than regular elections. See also 'consolidation of democracy' and 'democratic minimum core' below. 

Note 3: It is useful to unpack the term 'constitutional liberal democracy' in light of the contestation surrounding what true democracy means in contexts of democratic decay.  First, in a variety of states, this forms an additional dimension of contestation which can stymie reaction against hollowing out of democratic governance, by presenting the aims or end-point of transformation as legitimate. Second, this poses the question of whether we can truly judge democracies worldwide against a universal yardstick.

Note 4: To take three examples of democratic decay - Venezuela, Poland, and South Africa - there have been, and continue to be, counter-arguments to the claim that democratic decay is occurring, all claiming merely a shift to a different kind of democracy: a ‘post-liberal’ socialist revolutionary democracy, partly achieved through constitutional experimentation (Venezuela); a valid shift from liberal democracy to a more traditional republican form of government (Poland); and the move from a Western-style liberal democracy to an African-style ‘liberationist democracy’, which focuses more strongly on economic development than classic civil rights (South Africa).  All of these arguments can appear somewhat convincing (at least, on a superficial analysis), and are not always made by servants of the increasingly illiberal government.

Note 5: There is also a highly complex interaction of the three elements of liberal constitutional democracy that also requires significant exploration in the diagnosis of democratic decay. In states suffering democratic decay the mutual antagonisms of liberalism, constitutionalism, and democracy come to the fore in different ways. The global focus on populism, for instance, has been described by Francis Fukuyama as “the democratic part of the political  system rising up against the liberal part”.  Indeed, developments in many states at their core tend to speak to the wider re-assertion of a conception of democracy that places much greater emphasis on majority rule, with a more dyadic relationship between the government and the electoral majority, sidelining other sites of governance power, and evincing a particular distaste for counter-majoritarian mechanisms such as rights and courts, at both the national and international levels. 

Note 6: Importantly, these are not presented as alternatives to democracy itself, and, as Huq and Ginsburg emphasise, do not operate as traditional dictatorships. While liberal democracy is openly derided by governments in states such as Poland, Venezuela, and Hungary, which respectively refer to ‘conservative democracy’, ‘illiberal democracy’ and ‘post-liberal democracy’, these states would still lay claim to being constitutional democracies. In many states degradation of the democratic system has been explained away as simply legitimate constitutional change, taking power back from ‘elites’ (including law as a form of elite power), or the achievement of a more democratic system of governance in states where the scales of governance are claimed to have tipped too far toward liberal constitutionalism to the detriment of the democratic element. 

Note 7: However, the movement is not all in one direction, toward a purported reassertion of the democratic element of constitutional liberal democracy. In Brazil, for instance, there is a strong argument that the liberal element (or neoliberal element) of the political system has risen up against the democratic and constitutional elements, in that political actors with a neoliberal agenda, having failed to win power at the ballot box, have used constitutional means to subvert the Constitution, and to take power without a democratic mandate (see 'constitutional coup' above).  

Cross-references

— Authoritarianism.

— Consolidation of democracy.

— Constitutionalism.

— Democracy.

— Liberalism.

— Rule of law.

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Definition  |    an individualist creed, celebrating a particular form of freedom and autonomy, involving the development and protection of systems of individual rights, social equality, and constraints on the interventions of social and political power. 

See: M Freeden and M Stears, 'Liberalism' in M Freeden and M Stears (eds), The Oxford Handbook of Political Ideologies (Oxford University Press, 2013)

See: KL Scheppele, 'Autocratic Legalism' (2018) 85 The University of Chicago Law Review 545  

Note 1: Freeden and Stears' analysis of liberalism as a political ideology, listed above, is a good place to start in the effort to zero in on its conceptual coordinates. Their introduction highlights the breadth and richness of the term, as well as the contestation surrounding its meaning (pp.329-330):

The vigour and intricacy of liberalism are situated at many levels that overlap while maintaining their distinctiveness: as a political theory, as an ideology and as a set of moral injunctions for human interaction. Like conservatism, liberalism possesses unusual capacities of durability and adaptability, although it has also been particularly successful in penetrating other political ideologies, as well as having been falsely appropriated by others still. Significantly, it has contributed to some of the most important terms of political public discourse and has immensely enriched political vocabulary by placing concepts such as rights, political obligation, justice, equality, democracy, and of course liberty itself at centre stage. More than any other ideology, it has paved the way to the implementation of modern political practices in its methods of governing as well as in its slow but steady drive towards a social inclusiveness that embraces individual recognition and participation, as well as in its resolute commitment to safeguarding fundamental human well-being.

Liberalism is both the dominant ideology of the developed world and one of the most misunderstood. While ideologists, philosophers, and historians of political thought often proceed as if their accounts of liberalism are uncontentious, they produce manifold contrasting accounts, disagreeing on multiple axes of interpretation. It is thus crucial to recognize that liberalism is not a single phenomenon, but an assembly of family resemblances, with a rich and complex historical story and with numerous contrasting contemporary formations. Any student coming to liberalism afresh today will need to be able both to trace the similarities and the contrasts, as well as to realize that efforts to control the language of liberalism mark one of the most frequently employed devices in contemporary political life across the developed world and beyond.  

All efforts to understand the nature of liberal ideology demand, therefore, that we make some sense of this multiplicity and contestation. It is helpful to begin by noting that there are elements of liberalism that are widely accepted. Despite its multiple varieties, liberalism is often described as an individualist creed, celebrating a particular form of freedom and autonomy, involving the development and protection of systems of individual rights, social equality, and constraints on the interventions of social and political power. It would be an error, however, to think that this common rendering of its content was uncontroversial. Even within single countries, such as the United States, the programmatic recommendations and principled commitments of movements that describe themselves and are described by others as liberal have shifted dramatically across times. Indeed, multiple liberalisms often seem to jostle for position at the very same moment in political debate. Liberalism can often be found celebrating notions of communality, progress and welfare that seem initially at odds with the orthodox definition. The differences across countries are more stark still, with liberal traditions in continental Europe and beyond often standing in contrast to those in the Anglophone world and with diverse forms of liberalism being associated with different types of institutional arrangements.

Note 2: There is significant capacity for confusion in what the term 'liberalism' is understood to mean in the area of democratic decay, depending on one's ideological and disciplinary background. The term may be taken by many lawyers to mean 'liberal constitutionalism', or government that is limited by constitutional constraints (see 'liberal constitutional democracy' above and 'self-sustaining democracy' below). Alternatively, it may be taken to mean 'neoliberalism', i.e. a modified form of liberalism tending to favour free-market capitalism. Evidently, these are very different meanings. In general, it may be said that public law scholars criticising the hollowing out of democratic governance are focused on the 'constrained government' meaning of liberalism.

Note 3: It is important to keep the above distinction in mind: it is entirely possible to defend this form of constrained government without necessarily defending neoliberalism, technocratic governance (see 'undemocratic liberalism' below), the status quo ante (i.e. before democratic decay became apparent in states worldwide), or claiming that the support for democracy-threatening governments is wholly irrational. 

Note 4: It is also important to bear in mind that commitment to 'liberal constitutionalism' does not refer to the partisan-political distinction between 'liberals' and 'conservatives' in many states: see the discussion at Note 2 in 'conservative democracy' (above).  Kim Scheppele, in discussing 'autocratic legalism', emphasises that the term 'liberal' should not be equated with the 'left' side of the partisan left-right divide in the political system (pp.558-559):

I use the term “liberal” as a description of a family of political philosophies, which does not mean—as it does in everyday speech in America—that politicians are, or should be, on the Left. Liberalism grows from the Enlightenment struggle for the recognition of the rights of individuals, including their right to be governed under self-limiting and checked authority, authority that has as its normative touchstone legitimation through democratic means.

Cross-references

— Conservative democracy.

— Constitutional liberal democracy.

— Constitutional liberal democracy.

— Democracy.

— Liberationist democracy.

— Politics of resentment.

— Post-liberal democracy.

— Undemocratic liberalism.

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Definition  |    a democratic state which departs from Western-style liberal democracy by, inter alia, emphasising economic development over classic liberal civic rights, prioritising national sovereignty over human rights, and seeking to counter-balance Western dominance in the global order. 

See: J van der Westhuizen, ‘South Africa’s soft power conundrum: how to win friends and influence people in Africa’ (2016) 9(3) Journal of Political Power 449

Note 1: van der Westhuizen defines  liberationist democracy (at p.451) as follows:

First, liberationist democracies emphasise economic development over classic liberal civic rights. Second, whereas liberal democracies view human rights as universal, liberationist democracies tend to prioritise national sovereignty over human rights. Third, whereas liberal democracies broadly support the Western dominated world order, liberationists seek out means to counter-balance Western dominance. Fourth, whereas liberal democracies are marked by a universal morality anchored in a cosmopolitan outlook, liberationist orders seek to establish the equal worth of non-Western cultures, and could culminate in narratives of cultural relativism. Finally, whereas liberal democracies tend to acquiesce to broadly free market economic models, liberationist democracies may seek a radically different domestic order, characterised by a greater degree of state-led development...

Note 2: van der Westhuizen discusses how political discourse in South Africa after President Mandela's tenure (1994-1999) moved from a focus on 'classic' Western-style liberal democracy to liberationist democracy. This may be viewed as having reached its apogee under the Zuma administration. In this context, dubious constitutional practices by President Zuma, and the African National Congress (ANC) more widely — including attacks on judicial independence and other accountability institutions (e.g. corruption prosecutors) — may be seen as couched in a wider legitimating discourse which could counter claims of creeping authoritarianism.

Note 3: Reflecting the discussion under the 'democracy' and 'liberal constitutional democracy' entries above, this is not to deny the legitimacy of good-faith projects to depart from the Western model of democratic governance (broadly understood here as the democratic 'Global North'), in contexts that differ significantly from the Western context.

Cross-references

— Conservative democracy.

— Constitutional liberal democracy.

— Democracy.

— Post-liberal democracy.

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Definition  |    a state in which state action is closely aligned with the interests of power and wealth concentrated in the hands of a small group of insiders. While the traditional mafia channeled wealth and economic players into its spheres of influence by means of direct coercion, the mafia state does the same by means of parliamentary legislation, legal prosecution, tax authority, police forces and secret service.

See: B Magyar, Post-Communist Mafia State: The Case of Hungary (Central European University Press and Noran Libro, 2016) 

See: H Bhorat, M Buthelezi, I ChipkinI, S Duma, L Mondi, C Peter, M Qobo & M Swilling, Betrayal of the Promise: How South Africa is Being Stolen (State Capacity Research Project, May 2017) 

Note 1: The concept of the 'Mafia State' is relevant here insofar as it points to a feature often sidelined in public law accounts of democratic decay: corruption. Although Magyar's framework relates to post-Communist states, corruption is a clear feature (and often an underlying explanatory factor) in a variety of states that have suffered or are suffering democratic decay, including Hungary, Brazil, South Africa. Personal enrichment can fuel a desire to hold on to power, and a fear that alternation of power will bring prosecution or retribution for such enrichment. Thus, while Jan-Werner Müller observes that widespread corruption in itself does not constitute 'constitutional capture' (see above), it remains an important factor to bear in mind in this area. 

Note 2: The type of governance regime captured by the term 'Mafia State' is discussed by other authors without using the term. For instance, a the second-listed source above, a 2017 report on governance in South Africa, states (p.3):

In our view the South African case is just one quite typical example of a global trend in the growth of increasingly authoritarian, neopatrimonial regimes where a symbiotic relationship between the constitutional and shadow states is maintained, but with real power shifting increasingly into the networks that comprise the shadow state.

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See Hybrid regime.

See Illiberal democracy.

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Definition  |   a democratic regime which is willing to adopt preemptive, prima facie illiberal measures to prevent those aiming at subverting democracy with democratic means from destroying the democratic regime. 

See: J-W Müller, ‘Militant Democracy’ in M Rosenfeld & A Sajó (eds), The Oxford Handbook of Comparative Constitutional Law (Oxford University Press, 2012)

See: C Invernizzi Accetti & I Zuckerman, ‘What’s Wrong With Militant Democracy?’ (2017) 65(15) Political Studies 182

Note 1: Also known as 'defensive democracy' or 'fighting democracy', the idea that a democratic system may need to employ illiberal means to protect itself has a long pedigree, but contemporary understandings are rooted in pre- and post-war Germany. As Müller notes (pp.1253-4), 

The intuition behind militant democracy is at least as old as St Just's famous principle of ‘no liberty for the enemies of liberty’. However, the specific expression ‘militant democracy’ was first used in the mid-1930s by the German exile political scientist Karl Loewenstein, at a time when one European country after another had been taken over by authoritarian movements contesting elections in order to abolish or at least decisively weaken liberal democracy once they had gained power. The paradigmatic example was Germany, where Joseph Goebbels infamously gloated after the Nazis’ legal ‘seizure of power’: ‘it will always remain one of the best jokes of democracy that it provided its mortal enemies itself with the means through which it was annihilated.’

It was also in (West) Germany that a doctrine of militant democracy was not just comprehensively developed by legal scholars, but also officially adopted by the Federal Constitutional Court in the early 1950s.

Note 2: The concept of militant democracy has been subjected to serious critiques for decades. The second listed source represents a recent wholesale critique from a conceptual and empirical perspective. The abstract sets out the authors' argument:

This article proposes a critique of “militant democracy,” defined as the legal restriction of democratic freedoms for the purpose of insulating democratic regimes from the threat of being overthrown by legal means. The argument we advance is that this conceptual framework is inadequate for addressing the problem it is meant to solve, since restricting the freedom of its supposed “enemies” may make democracy more prone to authoritarian abuse, rather than less, in the long run. To demonstrate this, we first turn to the theory of militant democracy, both in its earliest articulations by Karl Loewenstein and Carl Schmitt, and in the more recent theoretical literature on this topic. In the second part, we show that the inherent arbitrariness of militant democracy has been reflected in a concrete expansion in the range of targets to which the logic of militant democracy has been applied: from fascism during the inter-war years, to communism during the Cold War, up to several forms of religious practice in the present day.

Cross-references

— Constitutional failure.

— Constitutional liberal democracy.

— Democracy.

— Illiberal democracy.

— Legality.

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Definition  |   the phenomenon whereby fundamentally antidemocratic governments have strengthened their hold on power by making at least some of a common set of concessions—largely illusory in nature—to the world’s prevailing democratic order, including economic openness, a pluralistic media, limited political competition, civil society activity, and the basics of the rule of law. 

See: A Puddington/Freedom House, 'Breaking Down Democracy: Goals, Strategies, and Methods of Modern Authoritarians' (Freedom House, June 2017)

Note 1: This term, as defined by Puddington, most clearly refers to previously authoritarian regimes that have engaged in liberalising measures as a strategic approach to enhancing their legitimacy and retaining the power to engage within an international order in which the traditional agnosticism of international law towards the governance system within a particular state had ceded to growing recognition of the principle of democratic rule as the sole legitimate system, or even an ‘emerging right to democratic governance’, in Thomas Frank’s words.  

Note 2: As such, the term ‘modern authoritarianism’ has limited application, although it has been used in tandem with the term ‘illiberal democracy’ itself.  Moreover, the purchase of the term has been degraded somewhat by recent geopolitical developments, which have witnessed a move away from democracy as an overriding principle, and an increasing willingness by various regimes to cast aside the pretence at democratic or open government. Puddington's Freedom House report observes that while modern authoritarianism remains common, some elements of 'hard' authoritarianism have returned and various regimes have begun casting aside the pretence at democratic or open government, including Russia, China, Egypt, Kazakhstan and others. 

Cross-references

— Authoritarianism.

— Hybrid regime.

— Illiberal democracy.

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Definition |   a condition of political development: the old has to break down in order to make way for the new. But the transitions can be extremely chaotic and violent; there is no guarantee that political institutions will continuously, peacefully, and adequately adapt to new conditions.

See: F Fukuyama, Political Order and Political Decay: From the Industrial Revolution to the Globalisation of Democracy (Profile Books, 2014)

Note 1:  Fukuyuma summarises the notion of political decay as follows (p.462):

Samuel Huntington used the term "political decay" to explain political instability in many newly independent countries after World War II. Traditional political orders undergoing rapid change had collapsed into disorder all around the globe. Huntington argued that socieconomic modernization led to the mobilization of new social groups over time, whose participation could not be accommodated by existing political institutions. The source of political decay was thus the inability of institutions to adapt to changing circumstancesspecifically, the rise of social groups and their political demands. 

Political decay is therefore in many ways a condition of political development: the old has to break down in order to make way for the new. But the transitions can be extremely chaotic and violent: there is no guarantee that political institutions will continuously, peacefully, and adequately adapt to new conditions. 

Note 2: The term political decay. as used by Fukuyama and Huntington, is quite different to the notion of 'constitutional decay' used by Machado to mean the slow but dramatic transformation of the national constitution through multiple processes (see 'constitutional decay' above); or the concept of 'democratic decay' as used in this Resource (see 'democratic decay' above).  

Cross-references

— Constitutional decay.

— Democratic decay.

— Democratic deconsolidation.

— Populism.

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Definition  |    a function, and mixture of, culture, history and domestic politics, the politics of resentment differs from populism in that it is more concrete and fluid and intuitive at the same time, and penetrates social and political life more deeply and broadly than populism. Resentment translates, and structures, populism. At its deepest the “politics of resentment” call into doubt the very commitments entered voluntarily. They strike at the very core of the societal fabric.

See: TT Koncewicz, 'Of the Politics of Resentment and European Disintegration: Are the European Peoples Ready to Keep Paddling Together?' Part I, Int’l J. Const. L. Blog, 26 February 2017

See: TT Koncewicz, 'Of the Politics of Resentment and European Disintegration: Are the European Peoples Ready to Keep Paddling Together?' Part II, Int’l J. Const. L. Blog, 9 March 2017

See: TT Koncewicz, 'Unconstitutonal capture and constitutional recapture: Of the rule of law, separation of powers and judicial promise'. Jean Monnet Working Paper 3/17, Jean Monnet Program, New York University (NYU)

See: RF Inglehart & P Norris, Trump, Brexit, and the Rise of Populism: Economic Have-Nots and Cultural Backlash (HKS Working Paper No. RWP16-026, Harvard Kennedy School, Aug. 2016)

Note 1: In the first source above, Koncewicz usefully distinguishes the notion of a 'politics of resentment' from populism as follows:

Just like populism, resentment is not only anti-elitist, but also anti-pluralist. Populism appeals to resentment to exclude others from “the people” and claim that only “We” represent the real “We the People.” My argument is that for resentment to obtain, it must be qualified and be more than just a critique of the elites and the status quo.

Resentment is conceptually different: more concrete and fluid and intuitive at the same time, it penetrates social and political life more deeply and broadly than populism. Resentment translates, and structures, populism. At its deepest the “politics of resentment” call into doubt the very commitments entered voluntarily. They strike at the very core of the societal fabric.

Importantly the “politics of resentment” never work on their own. It is always a function, and mixture of, culture, history and domestic politics. As a result of this “bifurcation,” resentment works differently in different environments and manifests itself in different guises: Brexit in UK, and more generally anti-European sentiments across the continent, rise of the right-wing parties in Germany, Austria and France, the spread of hate speech and exclusion of the “the Other,” Roma expulsion from France, or more recently disabling constitutional checks and balances and excluding the political opposition from the politics in Poland and Hungary. The rationale behind resentment–exclusion and distrust-–plays out in each and every case just mentioned, yet it operates differently, with varying intensity and consequences.

Last but not least, the “politics of resentment” are felt differently in the main axes of divergence that is “the West” and “the East” of the European continent. In the former case, EU law and Europeanization provoke well-known criticisms of the remoteness of Brussels with the resultant civic indifference, turn against the mainstream politics and the nostalgic return to the nation state.

Note 2: Koncewicz very expressly applies this term to the Central and Eastern European states that, after the end of Communist rule, experienced a significant disciplining of politics, and both internal and external assessments, in the push to achieve membership of the European Union (EU):

In homogeneous societies of the East [of Europe], the “politics of resentment” did not have “the Other” to turn against and, as a result, the “politics of resentment” fed off the phenomenon that I call “alienating constitutionalism.” The latter provides fertile ground for sweeping “politics of resentment.” The incessant pressure of Europeanization and catching-up with what was thought to be a superior Western standard provoked a backlash against the elite-driven and technocratic politics. Public discourse was dominated by strict legalism and top-down approach. People were relegated to the symbolic casting the vote moment. There was almost an aura of inevitability of mainstream politics: the choice at the polls could be against a person (party) but never against the policies seen as non-negotiable itinerary to follow. The “politics of resentment” took advantage of the exclusion that defined alienating constitutionalism and transformed into vindictive constitutionalism marked by gut-politics, emotions, revolt against the corrupt political elites and institutions. “Constitutional capture” followed. The predictable and stabilizing liberal narrative of “in rule of law we trust” has been debunked by an emotional and unpredictable brand of politics.

Note 3: Koncewicz's analysis takes a broader and much more nuanced analytical approach to the fundamental drivers of democratic decay, which has resonance beyond Central and Eastern Europe. It warns against simplistic narratives that present economics as the central explanatory factor in contemporary backlashes against liberal democratic rule: the people turning against democratic rule (or élites more narrowly) due to losing out as a result of economic globalisation. Koncewicz's analysis, by blending historical, political and cultural factors, chimes with the analysis of the USA by Ronald Inglehart and Pippa Norris, who somewhat similarly argue that cultural backlash (which they define as "a retro reaction by once-predominant sectors of the population to progressive value change") is a more convincing explanation for the rise of populism than economic factors.

Cross-references

— Constitutional capture.

— Rule of law.

— Liberalism.

— Populism.

— Undemocratic liberalism.

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Definition |   

i.    a thin-centered ideology that considers society to be ultimately separated into two homogenous and antagonistic groups, ‘the pure people’ versus ‘the corrupt elite,’ and which argues that politics should be an expression of the volonté générale (general will) of the people.

ii.   a political worldview based on a critique of the underinclusiveness and underrepresentation of (large elements of) the “people” in a political system dominated by entrenched elites, and which seeks a polity where decisions are made for the good of all, where “all” includes even the interests of the elites.

See: C Mudde, 'Are Populists Friends or Foes of Constitutionalism?' (The Foundation for Law, Justice and Society, 2013)

See: C Mudde & C Rovira Kaltwasser, Populism: A Very Short Introduction (Oxford University Press, 2017)

See: J-W Müller, What Is Populism? (Penguin UK, 2017)

See: P Norris, ‘Is Western democracy backsliding?  Diagnosing the risks’ (2017) 28(2) Journal of Democracy 1

See: R Howse, 'Populism and Its Enemies'. Workshop on Public Law and the New Populism, Jean Monnet Center, NYU Law School, 15-16 September 2017

Note 1: Populism is among the most misused concepts in scholarship, commentary and policymaking concerning democratic decay. It is often used in a manner that suggests it is always a negative phenomenon, or that elides the distinction between 'popular' and 'populist' (e.g. the regular use of referendums in Ireland is an example of popular constitutionalism rather than 'populist constitutionalism' - see below). The extended quotations below aim to provide some clarity. 

Note 2: Mudde offers a nuanced characterisation of populism and its relationship to adjacent concepts. In the Executive Summary of the first reference above he states at p.1:

While populism is essentially democratic, it is not liberal democratic. Principally, populism is a form of extreme majoritarianism. Given that constitutionalism limits both popular sovereignty and majority rule, populism is theoretically opposed to constitutionalism.

In practice, however, populists take an opportunistic approach toward constitutions. While populists-in-opposition cling to the constitutional protection of their minority rights, they reject those of other minorities on the basis of the democratic argument of majority rule.

Populists-in-power have done the same, but, when able, have (significantly) reformed the constitution, most often strengthening majoritarian institutions (like the executive and referendums) and marginalizing counterbalancing powers and extra-political institutions.

Note 2: In Populism: A Very Short Introduction (listed above) Mudde and Rovira Kaltwasser observe at p.34 that, in many European states, populism has been combined with authoritarianism and nativism:

Whereas the former refers to the belief in a strictly ordered society, and is expressed in an emphasis on "law and order" issues, the latter alludes to the notion that states should be inhabited exclusively by members of the native group ("the nation") and that non-native ("alien") elements are fundamentally threatening to the homogeneous nation-state. 

Note 3: Pippa Norris also provides useful distinctions between different strains of populism, emphasises the difference between populism and authoritarianism, and notes that not all populist movements pose threats to democracy (pp.14-15):

Trump’s angry nativist rhetoric and dark fear-mongering ...echoes xenophobic political discourse among populist leaders in several hybrid regimes worldwide, from Recep Tayyip Erdoğan in Turkey to Viktor Orbán in Hungary, Rodrigo Duterte in the Philippines, and the late Hugo Chávez and Nicolás Maduro in Venezuela. These cases provide the clearest warning of how populist forces have the capacity to undermine fundamental human rights and freedoms under these types of regimes.

To understand the risks, it helps to see populism as a governing style with three defining features. Firstly, populist rhetoric emphasizes that legitimate political authority is based on popular sovereignty and majority rule. Secondly, populism challenges the legitimacy of the establishment. This concept remains vague but the term reflects disapproval of the privileged  classes (‘the haves’) holding the reins of political, cultural, and economic power in any society. Finally, despite the rhetoric about popular sovereignty, in practice populist forces are often led by maverick outsiders (‘none-of-the-above’) claiming to speak for the vox populi and to serve ordinary people.

It should be emphasized that not all populists are authoritarian, and not all authoritarians are populists, by any means. For example, Bernie Sanders’ Democrats, Spain’s Podemos and Italy’s Five Star Movement are all antiestablishment but more progressive in their values. When the populist style of governance is coupled with authoritarian values, however, this potent combination presents most dangerous risk to the principles and practices at the heart of liberal democracy. Trump falls into this category. Authoritarian values emphasize the importance of protecting traditional lifestyles against perceived threats from ‘outsiders’, even at the expense of civil liberties and minority rights. These values advocate strict conformity to conventional norms, such as in the spheres of the family, religion, marriage, sexual orientations, and gender identities, rather than tolerance of multiculturalism, fluid identities, and diverse lifestyles. Finally these values also reflect xenophobic and racist attitudes towards foreigners, refugees and immigrants, coupled with deep mistrust of cosmopolitanism, multiculturalism, and the institutions of global governance. 

Populism undercuts the legitimacy of the checks and balances on executive power in liberal democracies, thereby leaving the backdoor ajar, and turning off the burglar alarm, protecting citizens from strong leaders advocating authoritarian values attacking the heart of liberal freedoms, social tolerance, and cosmopolitanism.

Note 4: Rob Howse (fifth listed source above) sets out a clear defence of 'good populism' in a 2017 conference paper, from which the second definition above is drawn: 

Good populism [like 'bad' populism] entails a claim against the elites, but the claim is a pluralist, not an antipluralist one. It is not a demand for popular hegemony but a critique of the underinclusiveness and underrepresentation of (large elements of) the “people” in a political system dominated by entrenched elites. Good populism seeks a polity where decisions are made for the good of all, not a minority; but “all” includes even the interests of the elites. It is just that these interests have to be cut down to proper size in their place in the overall common good-not that they be eradicated or rendered completely illegitimate. It is along these lines that I believe Dani Rodrik is correct that we can distinguish good populism from bad populism by the kinds of policies that populists seek, or that are implied in order to address the populist critique. Bad populists will take aim at minority rights, they will engage in actions such as arbitrary seizure or nationalization of the property of the “elites”, punitive taxes, deportation of foreign workers, and so on. (...) The policies of good populists with be consistent with inclusion and pluralism-on the economic side, as Rodrik suggests, these would be New Deal-like initiatives that tax and regulate the wealthy, large businesses, but all the while allowing them to participate and continue to thrive in the polity.

Note 5: Although Howse's analysis is a theoretical critique pitched toward the US context (e.g. referring to the [Bernie] "Sanders movement" in the US as the main example), it has global resonance, from the Podemos movement in Spain, to criticisms of (and significant evidence of) serious corruption among political élites in states such as Brazil and South Africa (see e.g. 'Mafia state' below). To further add to the complexity, Brazil also demonstrates that populism is no monolith: a decade of left-wing populist government and declining economic fortunes have led to the emergence of a more anti-democratic right-wing populism. 

Cross-references

— Authoritarianism.

— Constitutional liberal democracy.

— Liberalism.

— Illiberal democracy.

— Mafia state.

— Populist constitutionalism.

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Definition |   the employment of constitutional change by populists to carry out three functions: deconstructing the old institutional order, developing a substantive project rooted in a critique of that order, and consolidating power in the hands of populists.

See: D Landau, 'Populist Constitutions' (2018) 85 The University of Chicago Law Review 521

Abstract: This essay draws on recent academic definitions of populism and recent examples of its use in order to show that there is an affinity between populism and widespread constitutional change. It argues that populists use constitutional change to carry out three functions: deconstructing the old institutional order, developing a substantive project rooted in a critique of that order, and consolidating power in the hands of populists. Thus, access to the tools of constitutional change may accentuate both the promise of populism as a corrective to stagnating liberal democracies, and the threat that it poses to those constitutional orders. I also argue that there is a trajectory to populist constitutionalism: populist constitutions begin by emphasizing their promise to improve upon existing liberal democratic constitutional orders and obscuring their underlying consolidation of power, but if populists are able to maintain power for long periods of time they will likely become overtly illiberal, arguing that their substantive goals cannot be met within the confines of liberal democracy. This suggests at least two separate agendas: one that prevents the forms of constitutional change that allow populists to mold the constitutional order so that they become difficult to dislodge, and a second that makes a stronger affirmative case for the virtues of liberal democracy.

Note 1: This concept is clearly rooted in the negative understanding of 'populism' (see above), i.e. where populism is allied with authoritarianism. For some (see Notes 3, 4 and 5 in 'populism', above), there is a case for the possibility (or existence) of a positive populist constitutionalism. 

Cross-references

— Bad faith constitutionalism.

— Constitutionalism.

— Constitutional liberal democracy.

— Hybrid regime.

— Illiberal democracy.

— Populism.

— Rule by law.

— Rule of law.

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Definition  |   experimentation with post-liberal formats of political participation and citizenship by various left-wing governments in Latin America, which do not replace the liberal state and electoral democracy but, by adding such non-liberal forms, tend to transform liberal-democratic polities. 

See: J Wolff, Postliberal Democracy Emerging? A Conceptual Proposal and the Case of Bolivia, PRIF Working Paper 11/2012

See: Almut Schilling-Vacaflor & ‎Detlef Nolte (eds), New Constitutionalism in Latin America: Promises and Practices (Routledge, 2012)

Note 1: The idea of post-liberal democracy has progressive connotations in Latin America, where traditional liberal democratic government has often tended to prioritise liberalism and the entrenched power and privileges of economic élites, to the detriment of a more inclusive democratic engagement by the population as a whole.

Note 2: However, the experimentation involved in post-liberal formats of democratic government has, in some states, provided cover for hollowing out of the democratic system. For instance, in Venezuela, the 1999 Constitution, presented as entrenching a new type of ‘post-liberal’ democratic constitutional order, placed less emphasis on core tenets of liberalism such as judicial independence, and greater emphasis on social rights, direct democracy, and experimentation with a new separation of powers model.  Through the new constitution, President Hugo Chávez expanded the powers of the presidency and the hard-wired deficiencies of Venezuela’s “petro-State”–corruption, rent-seeking, and obstacles to building strong democratic institutions–worsened.  The new Supreme Court, established in 2000, quickly gained a reputation as a tool of the Chávez regime.  Concerted moves were made to repress media freedom,  and the electoral rules rewritten to secure majorities for Chávez.  Instruments for greater participation by the people were subverted. As David Landau has observed in his article 'Populist Constitutions' (p.538; see 'populist constitutionalism' above):

In Venezuela... the 1999 constitution included an innovative method for selecting the supreme court by giving a significant role to a commission staffed largely by representatives of civil society, a change that Chávez could present as part of a new participatory mode of government that would be superior to the closed and elitist nature of the old constitutional regime. Yet Venezuela’s National Assembly avoided setting up this commission, opting instead to rely on a temporary constitutional amendment (and later other devices) to centralize appointment power in the executive branch.

Cross-references

— Conservative democracy.

— Constitutional liberal democracy.

— Liberalism.

— Liberationist democracy.

— Illiberal democracy.

— Populism.

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Definition  |   assessment of the level of legitimacy in a democratic system against factors including democratic norms as participation, competition, equality and rule of law. 

See: L Diamond & L Morlino (eds), Assessing the Quality of Democracy (Johns Hopkins University Press, 2005)

See:  G O’Donnell, J Vargas Cullell & OM Iazzetta (eds), The Quality of Democracy: Theory and Applications (University of Notre Dame Press, 2004)

Note 1: In the late 1990s leading ‘consolidologists’ (i.e. scholars in the area of 'consolidation of democracy' - see above), such as Guillermo O’Donnell, turned their focus to other analytical frameworks, chiefly the concept of ‘quality of democracy’ (QoD). The quality of democracy framework is designed to provide a means of analysing the true quality of a democracy – whether long-established democracy, younger democracy, or otherwise – against a complex set of criteria.

Note 2: Assessing the quality of democracy is a highly contested area. There are now any number of indices for rating democracy across the world, each weighted toward different measures, e.g. Freedom House, Economist Intelligence Unit, POLITY, V-Dem (see Links section). See 'consolidation of democracy' (above) and 'democratic minimum core' (above). 

Cross-references

— Consolidation of democracy.

— Constitutional liberal democracy.

— Democracy.

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Definition  |   the phenomenon whereby multiple states shift from democratic rule toward authoritarian rule at roughly the same time or in close succession. 

See: S Huntington, The Third Wave: Democratization in the Late Twentieth Century (Oxford University Press, 1991)

See: TG Daly, The Alchemists: Questioning Our Faith in Courts as Democracy-Builders (Cambridge University Press, 2017)

See: S Mainwaring and A Pérez-Liñán, ‘Democratic Breakdown and Survival’ (2013) 24(2) Journal of Democracy 123

Note 1: The following summary of the concept of 'waves' and 'reverse waves' of democratisation is provided in the Alchemists book (second listed above) as follows (pp.31):

Samuel Huntington’s concept of ‘waves of democratisation’ [refers to the manner] in which multiple states took steps toward democratic rule at roughly the same time.  The first took place in the Western World–mainly Western European and North American states–in the nineteenth and early twentieth century (1828-1926). The second took place in the immediate post-war period as Italy, Austria, West Germany, and Japan committed to democratic rule after authoritarian periods and decolonisation took place in South Asia, Southeast Asia, and Africa. The third, most extensive, wave began in 1974 with Portugal’s Carnation Revolution, followed by a return to democratic rule in Spain in 1978, spread to Greece, Latin America, Central and Eastern Europe (CEE), and various states in East Asia and Africa in the 1980s and 1990s, and also encompassed another round of decolonisation in the 1970s. 

Each ‘wave’ is viewed as having been followed by a ‘reverse wave’: in the 1920s-1940s by authoritarian regimes such as the National Socialist and other fascist regimes of Europe; and in the 1960s-1970s by the souring of democratic governance in newly independent African states and the striking emergence of military rule across Latin America. Consensus is emerging that we are now witnessing a ‘reverse wave’ affecting a significant number of ‘third wave’ democracies–Larry Diamond, for instance, uses the term ‘democratic recession’ to discuss democratic backsliding worldwide since 2000. 

Note 2: Recent research (see Mainwaring and Pérez-Liñán above) suggests that the regional international environment can be a significant factor, tending to bolster the idea of 'reverse waves' and the influence of negative developments in one state on another state (pp.132-3): 

[A] more democratic regional environment makes it considerably less likely that competitive regimes will break down. This result meshes with the large literature that has emerged over the last 25 years on the importance of international influences on democratization. A more democratic regional political environment fosters the diffusion of ideals about what is possible and desirable in politics (...) Conversely, before the third wave [of democratisation], some authoritarian regimes provided inspiration for coups and authoritarian leaders elsewhere in the region. For example, the Cuban revolution encouraged the formation of revolutionary leftist movements throughout most of Latin America, in turn prompting a right-wing counterreaction. In the 1960s and 1970s, the national-security doctrine that justified military coups and authoritarian rule as a way of thwarting leftist threats spread throughout the hemisphere. The establishment in 1964 of a “successful” Brazilian military dictatorship—it boosted economic growth and thwarted the left—made Southern Cone militaries more prone to believe that they too might govern successfully. 

Note 3: The above notes tend to support Kim Lane Scheppele's research suggesting that the 'new autocrats' are learning from one another, and tend to borrow or emulate practices to hollow out democratic rule from other states: see 'autocratic legalism' and 'Frankenstate' above.

Cross-references

— Autocratic legalism.

— Democracy.

— Democratic recession.

— Frankenstate.

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Definition  |   where political power is exercised by legal means but key elements of the rule of law are lacking, two in particular: (i) that governments not merely rule by law but are reliably and effectively constrained by it as well; and (ii) though governments may rule by what they call law, this law might fail in some respects to be of a character that warrants use of the phrase 'rule of law'.

See: M Krygier, 'Rule of Law' in in M Rosenfeld & A Sajó (eds.), The Oxford Handbook of Comparative Constitutional Law (Oxford University Press, 2012)

Note 1: Krygier's definition is essential to understanding what is missing in states where governments continue to place significant focus on legalism, but where governance is not constrained in the manner we expect of a democratic state under the rule of law. Krygier elaborates on the first element in the definition above, as follows (pp.234-235):

In many states, law has been a very useful vehicle (and at times equally useful camouflage) for authoritarian exercise of power. Where this is so, though rule might be by, it is not of law. Again, it must be stressed, we speak of differences of degree, not categorical distinctions of kind.

Of course, this is always partly so. Much law serves as an instrument for the achievement of governmental administrative and regulatory goals in every modern state. Today's governments are not sporting umpires, simply enforcing inherited and rarely changing rules of a game made elsewhere and elsewhen. They are active in pursuing their own purposes, and make laws to serve them. However, where the state is framed and constrained by effective and independent legal institutions, professions, and traditions, and typically these days written, effectively binding and relatively fixed constitutions, we are a world away from a polity, such as the former Soviet Union, where regular legal constraint on the power of the Communist Party was for long periods not merely non-existent but unthinkable. Indeed, it was illegal given the ‘leading role’ constitutionally accorded the Party. So even though this polity was not lawless, since there was plenty of law about, its legal subordination to a supra-legal authority vitiated the feature that makes the rule of law distinctive and precious: constraint by law on the ways in which power can be exercised.

Note 2: Regarding the second element of the definition above, Krygier offers:

Secondly, though governments may rule by what they call law, this law might fail in some respects to be of a character that warrants use of the phrase, ‘rule of law’. If the laws are secret, retrospective, contradictory, impossible to know, to understand, to perform, it has often been said, as we will see, they do not add up to the rule of law. Nor would they even if the government obeyed them. 

Cross-references

— Abusive constitutionalism.

— Autocratic legalism.

— Bad faith constitutionalism.

— Constitutional capture.

— Constitutionalism.

— Constitutional liberal democracy.

— Hybrid regime.

— Rule of law.

— Stealth authoritarianism.

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Definition  |   a number of overlapping ideas, including constitutionalism, due process, legality, justice, and sovereignty, that make claims for the proper character and role of law in well-ordered states and societies. 

See: M Krygier, 'Rule of Law' in in M Rosenfeld & A Sajó (eds.), The Oxford Handbook of Comparative Constitutional Law (Oxford University Press, 2012)

See: J Sempill, ‘Ruler’s Sword, Citizen’s Shield: The Rule of Law & the Constitution of Power’ (2016) 31 Journal of Law & Politics 333

See: L Ferrajoli, ‘The Normative Paradigm of Constitutional Democracy’ (2011) 17 Res
Publica 355

See: Venice Commission, Rule of Law Checklist CDL-AD(2016)007 (18 March 2016)

Note 1: The rule of law has many different definitions and interpretations, but Martin Krygier helpfully strips the idea to its basics (pp.233-234):

Is it necessary for the rule of law that law rule? Is it sufficient? 

Starting with necessity, it would be an odd rule of law without law. And so, one way a society could lack the rule of law is for its rule to be by means other than legal ones. In such a society, and of course I exaggerate to make the point, law would not be engaged in the exercise of  power, which takes place without legal authorization, excuse, or form. This is the thought that underlies the old distinction between limited, even if authoritarian, government and tyranny. Thus Montesquieu, late in a long tradition, distinguished between monarchies, ‘in which one alone governs, but by fixed and established laws’, and ‘despotic government [in which] one alone, without law and without rule, draws everything along by his will and his caprices’. He favoured the former.

At the other extreme are societies where no one rules but many fight. Such is Hobbes's ‘state of nature’, ‘solitary, poore, nasty, brutish and short’. Life in John Locke's natural state is less brutish, less solitary, and perhaps longer, but still inhabitants are minded to leave it, because

First, there wants an establish’d, settled, known Law … Secondly, … there wants a known and indifferent Judge, with Authority to determine all differences according to the established Law [and] Thirdly, … there often wants Power to back and support the Sentence when right, and to give it due Execution.

Remedy those three defects, and you have moved some way toward the rule of law. Similar reasoning applies to the anarchic ‘failed states’ common in the contemporary world. Again, and obviously, law does not rule in a failed state.

Note 2: Julian Sempill argues that we cannot understand the meaning of the term 'rule of law' without an appreciation of the intellectual history of two competing visions of the rule of law: (i) a traditional version focused on limited government; and (ii) a formal or 'thin' vision, which takes an instrumentalist view by identifying the central purpose of the rule of law as facilitating efficient State action. Sempill's analysis rewards a close and thorough read, but the following are key insights:

For the limited government tradition, the term is one way, among others, of referring to a complex array of propositions regarding the proper relationship between law, state power, and interests, expectations, and rights. The tradition does not always refer to these propositions using the term "the Rule of Law." Others are also employed, including "empire of laws," "legality," "constitutionalism," "government under law," "the rule of reason," "the Law," or simply "law." And sometimes the propositions are expressed without being collected under the heading of an omnibus term.

...

When we put forward alternative visions of the Rule of Law, what we are doing, in effect, is proposing different ways of thinking about the proper relationship between law, state power, and interests, expectations, and rights. 

...

The essence of our disagreement concerning rival visions is moral and political, and so it needs to be tackled by a debate conducted on the fully normative terrain of moral and political philosophy.

Note 4: In many non-Anglophone states, the idea of the 'rule of law' is expressed as 'the state based on (the rule of) law' (e.g. Spanish 'estado de derecho', French 'état de droit', Portuguese 'estado de direito').  The Italian legal philosopher Luigi Ferrajoli (using the term 'rule-of-law constitutional state) discussed the relationship between the rule of law and democracy as follows (pp.356-7, third listed source):

[I]t is not true that in constitutional democracies the respect for democratic forms and procedures is sufficient to legitimate any decision. It is equally untrue that the power of the people, i.e. of the majority, is the only source of legitimacy for collective decisions, and thus an unlimited power. On the contrary, this power is law-bound with regard not only to the forms, but also to the contents of its exercise. It is, in short, subject to the law—in the form of the constitutional norms establishing the principle of equality and fundamental rights—coherently with the paradigm of the ‘rule-of-law constitutional state’ (stato di diritto costituzionale),1 which does not admit the existence of unlimited powers. Given the presence of such limits, should we infer, following the purely formal conception of democracy as the mere ‘will of the people,’ that constitutional systems are not democratic? Or, as has been suggested, should we consider entrenched fundamental rights constraining political democracy as limits to democracy tout court? Or even, such as when constitutional rights are depicted as ‘insatiable’ ... should we consider them as the negation of democracy itself? Contrary to these interpretations, can we instead maintain that, where there are no constraints, it is not possible to talk of ‘democracy’—or at least of ‘constitutional democracy’?

Note 5: In post-authoritarian contexts the rule of law can carry the additional connotation of a 're-founding' of the state itself, paradigmatically based not just on a political transition to democratic rule but the adoption of a (liberal) democratic constitution that not only sets out democracy and the rule of law as foundational values but which also expresses a rejection of the prior authoritarian order, which will ordinarily have preferred either competing values (e.g. official ideology) or pragmatic decision making (e.g. bureaucratic governance in military dictatorships), and which will have favoured an executive with relatively unconstrained competences, as compared to the 'constrained' nature of a democratic government (through rights, courts, and other institutional checks and balances): see 'authoritarianism' above. 

Note 6: There are various lists against which a state's adherence to the rule of law can be measured. Lord Bingham (UK) distilled Eight Principles of the Rule of Law. More recently,  the Venice Commission's 'Rule of law Checklist' (fourth listed source above) is an extensive text, referring to a range of separate dimensions of the rule of law, drawing on a thick accretion of European standards (EU and Council of Europe), especially in the past two decades. These include: supremacy of the law, compliance with the law, law-making procedures, accessibility of legislation, foreseeability, stability and non-retroactivity of the law, prevention of abuse of powers, access to courts and fair trial rights, and negative challenges including corruption, use of preventive measures, and State surveillance, among others. 

Note 7: Rule of law checklists and rule of law indicators are produced as an assessment tool, and provide a useful conspectus of the general terrain covered by the term. Although they can have limited application in contexts of democratic decay, where the use of law can be sophisticated enough for governments to provide clear counter-arguments against claims that the rule of law is being undermined. 

Cross-references

— Constitutionalism.

— Constitutional liberal democracy.

— Rule by law.

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Definition  |   the process through which elected public authorities deliberately implement governmental blueprints which aim to systematically weaken, annihilate or capture internal checks on power with the view of dismantling the liberal democratic state and entrenching the long-term rule of the dominant party.

See: L Pech & K Scheppele, ‘Illiberalism Within: Rule of Law Backsliding in the EU’ (2017) 19 Cambridge Yearbook of European Legal Studies 3

See: RD Kelemen, 'Europe’s Other Democratic Deficit: National Authoritarianism in Europe’s Democratic Union' (2017) 52(2) Government and Opposition 211

See: J Schulte (ed), The Other Democratic Deficit: A Toolbox for the EU to Safeguard Democracy in Member States (Friedrich-Ebert-Stiftung (FES), 2018)

Note 1: This is the most commonly used term to refer to democratic decay in the European Union (EU) context. This is due to the rule of law being (if not officially) the ultimate value of the EU. While Article 2 of the Treaty on European Union (TEU) refers to a range of fundamental values, including rule of law, democracy, human rights and equality, all EU institutions focus on the rule of law as the dominant concept. This is seen in the European Commission's 'pre-Article 7' rule of law monitoring process [what else here??]. This tendency to focus on 'rule of law' rather than 'democracy' may also reflect the EU's own perceived 'democratic deficit' as a supranational system of governance: indeed, two recent publications refer to democratic decay in the EU as the Union's "other" democratic deficit: see the second and third listed sources above.

Note 2: 'Rule of law backsliding' may be viewed as a synonym of 'autocratic legalism'. Pech and Scheppele set out what they call a 'recipe' for such backsliding, which serves also as a summary of the autocratic legalism phenomenon:

(1) Rule of law backsliding tends to begin with a significant number of citizens losing faith in their system of government for a number of reasons which vary from increasing inequality, persistent unemployment or the predatory practices of the ruling elites. This is often accompanied by a crisis in the party system in which one of the mainstream parties is either riven with conflict or takes a sharp turn to an extreme which then presents itself as a normal option at the next election;

(2) Disgruntled citizens vote to break the system by electing a leader who promises radical change, often referring to the ‘will of the people’ while attacking the pre-existing constitutional framework with cleverly crafted legalistic blueprints borrowed from other ‘successful’ autocrats, a pattern that led Professor Cooley to speak of a new ‘League of Authoritarian Gentlemen’;

(3) The new autocrats act quickly to shut down the key offices that might resist their consolidation of power, which includes the independent judiciary, the media and the repressive institutions (security services, police, public prosecutor’s office);

(4) To remain popular, these autocrats engage in benefit giveaways while they seek to control the public debate and eliminate alternative views through the bullying of civil society groups and the deployment of tax police and public prosecutors, newly captured, against their opponents;

(5) They then change the election law, the electorate (by pushing the opposition out of the country or suppressing their votes) or both;

(6) When voters eventually wake up to the damage done (usually too late, as the new autocrat has by that time destroyed any channel through which alternative views may be expressed), they have few options to resist because their constitutional system has been captured and no constitutional avenue remains to effectively challenge the government/ruling party;

(7) In the unlikely situation where resistance nonetheless emerges from the Parliament or from the streets, biased referenda can always be organised to confirm the will of the leader under the guise of the will of ‘the people’, a notion which authoritarian populists find useful to rely upon in order to put themselves ‘above democratic institutions and to overcome obstacles’ which may stand in their way;

(8) Having sealed the space against dissenting voices and rewritten electoral regulations, autocrats can then expect to get the votes they need to win subsequent elections by whipping up imaginary enemies or giving away state largesse to garner votes. In this way, the rotation of power from one party to another becomes a feature of the past.

Cross-references

— Abusive constitutionalism.

— Autocratic legalism.

— Bad faith constitutionalism.

— Constitutional capture.

— Constitutionalism.

— Constitutional liberal democracy.

— Rule by law.

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Definition  |   a system where liberal-constitutional constraints on the sitting government prohibit an elected leader from simply abolishing future elections.

See: KL Scheppele, 'Autocratic Legalism' (2018) 85 The University of Chicago Law Review 545   

Note 1: Scheppele uses the term 'self-sustaining democracy' to argue that liberal constitutionalism, placing constraints on the government of the day, can be considered democratic to the extent that it prevents any one government from ending the possibility of alternation of government. At p.558 she states:

In its simplest form, a constitutional commitment to self-sustaining democracy prohibits an elected leader from simply abolishing future elections. In its more complicated form, a constitutional commitment to self-sustaining democracy requires that leaders be prohibited from hampering the institutional prerequisites for free and fair elections, among which are a pluralistic media, a range of effective parties, an independent judiciary, recognition of a legitimate and loyal opposition, neutral election officials, a system of representation that does not unduly dilute the powers of minorities, and legally accountable police and security services, as well as a free and active civil society—all of which should have constitutional protection for a democracy to be considered self-sustaining. In its even more substantive varieties, democratic constitutionalism is bound to honor what democratic publics should want if they were able to follow liberal theoretical commitments through from beginning to logical end point. Starting from liberal premises, it is possible to construct the arguments for both constitutionalism and democracy together. 

Note 2: This term should be distinguished from 'militant democracy' (see above), which concerns the employment of illiberal mechanisms (e.g. political party bans, restrictions on free speech) to safeguard the democratic system, rather than traditional liberal safeguards. 

Note 3: This term has clear resonance with the concepts of 'democratic resilience' and 'constitutional endurance' (see above), which focus on what safeguards are in place to ensure the proper functioning of a democratic order and its capacity to withstand attacks, although its focus is more squarely on institutional checks and balances.  

Cross-references

— Constiitutionalism.

— Democratic resilience.

— Liberal constitutional democracy.

— Democracy.

— Militant democracy.

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See Hybrid regime.

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See Constitutional coup.

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Definition  |   the manner in which a new generation of authoritarians have learned to perpetuate their power through the same legal mechanisms that exist in democratic regimes. In so doing, they cloak repressive practices under the mask of law, imbue them with the veneer of legitimacy, and render anti-democratic practices much more difficult to detect and eliminate. 

See: O Varol, ‘Stealth Authoritarianism’ (2015) 100 Iowa Law Review 1673

Abstract: Authoritarianism has been undergoing a metamorphosis. Historically, authoritarians openly repressed opponents by violence and harassment and subverted the rule of law to perpetuate their rule. The post-Cold War crackdown on these transparently authoritarian practices provided significant incentives to avoid them. Instead, the new generation of authoritarians learned to perpetuate their power through the same legal mechanisms that exist in democratic regimes. In so doing, they cloak repressive practices under the mask of law, imbue them with the veneer of legitimacy, and render anti-democratic practices much more difficult to detect and eliminate.

This Article offers a comprehensive cross-regional account of that phenomenon, which I term "stealth authoritarianism". Drawing on rational choice theory, the Article explains the expansion of stealth authoritarianism across different case studies. The Article fills a void in the literature, which has left undertheorized the authoritarian learning that occurred after the Cold War and the emerging reliance on legal, particularly sub-constitutional, mechanisms to perpetuate political power. Although stealth authoritarian practices are more prevalent in nondemocracies, the Article illustrates that they can also surface in regimes with favorable democratic credentials, including the United States. In so doing, the Article aims to orient the scholarly debate towards regime practices, rather than regime types.

The Article concludes by discussing the implications of stealth authoritarianism for scholars and policymakers. The existing democracy promotion mechanisms in the United States and elsewhere are of limited use in detecting stealth authoritarian tactics. Paradoxically, these mechanisms, which have narrowly focused on eliminating transparent democratic deficiencies, have provided legal and political cover to stealth authoritarian practices and created the very conditions in which these practices thrive. In addition, stealth authoritarianism can ultimately make authoritarian governance more durable by concealing anti-democratic practices under the mask of law. At the same time, however, stealth authoritarianism is less insidious than its traditional, more repressive alternative and can, under some circumstances, produce the conditions by which democracy can expand and mature, in a two-steps-forward-one-step-backward dynamic.

Note: This concept has a close affinity with more recent conceptual innovations, including 'autocratic legalism' and 'constitutional retrogression'. 

Cross-references

— Abusive constitutionalism.

— Authoritarianisation.

— Authoritarianism.

— Autocratic legalism.

— Bad faith constitutionalism.

— Constitutional capture.

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Definition  |   a holistic ideology of a revolutionary party that considers itself to be the unique and exclusive vanguard of its own reference group—the proletariat, the nation, the racial entity—and as such demands for itself a monopoly of power in order to establish a new order. Total and totalitarian ideologies, presenting themselves as global conceptions of life that defined the significance and ends of individual and collective existence, have been interpreted as secular religions contributing to the sacralization of politics.

See: E Gentile, 'Total and Totalitarian Ideologies' in M Freeden & M Stears (eds), The Oxford Handbook of Political Ideologies (Oxford University Press, 2017)

Note 1: As Gentile notes (p.60), totalising ideologies have deep roots, and include "traditionalist total ideologies" (e.g. English conservatism, German political romanticism) that wished to preserve or restore the old order, based on the authority of the monarch and Church, which had been shattered by the French Revolution. However, when we think of totalitarianism we tend to think of later variants which became uniquely important in the twentieth century, especially Marxism, Communism and National Socialism. 

Note 2: Gentile notes (p.66) a number of key insights from other scholars. This includes Hannah Arendt's view that every ideology contains totalitarian elements but that totalitarianism can only be fully developed by a totalitarian movement. Gentile also cites Bernard Wolfe's analysis that totalitarianism "‘is rooted in the word total. All cultures have had their ideologies, but the ideology in a totalitarian society is deliberately total—that is, it embraces and prescribes for every aspect of human life. Similarly, every modern society has involved ‘a state’ but the totalitarian state is designedly total, in that it becomes coextensive with the society itself. This totality is unique to our age". 

Note 3: Totalitarianism is not a feature of states suffering democratic decay for three reasons: (i) contemporary hollowing out of democracy is not underpinned by any clear or elaborate ideology; (ii) the end-point of democratic decay tends to be a hybrid regime that in many ways 'mimics' true democracy (e.g. Hungary, Poland); and (iii) even where a more elaborated ideological underpinning is present, such as Chavismo's 'post-liberal democracy' based on 'socialist revolution' in Venezuela, the result of two decades of democratic decay is best described as authoritarianism or dictatorship (or even Mafia State) rather than totalitarianism, especially given that the capacity of the State has been weakened and it cannot exert totalising control.

Cross-references

— Authoritarianism.

— Autocracy.

— Hybrid regime.

— Modern authoritarianism.

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Definition  |   rights without democracy. In this form of government, procedural niceties are carefully followed (most of the time) and individual rights are respected (much of the time). But voters have long since concluded that they have little influence on public policy. 

See: Y Mounk, The People Vs. Democracy: Why Our Freedom Is in Danger and How to Save It (Harvard University Press, 2018)

Note 1: The definition above is drawn from pages 13 and 14 of Mounk's book, listed above. Mounk's essential claim is that liberal democracy is falling apart and being replaced by two extremes: illiberal democracy and undemocratic liberalism. An extended quotation from the introduction to his book encapsulates his argument:

 Hungary's rise of the populists [through election of the Fidesz government - see 'autocratic legalism' above] and Greece's rule of the technocrats [through the EU-IMF financial bailout and change to technocratic government] seem like polar opposites. In one case, the will of the people pushed aside the independent institutions that were meant to protect the rule of law and the rights of minorities. In the other case, the force of the markets and the beliefs of the technocrats pushed aside the will of the people.

       But Hungary and Greece are just two sides of the same coin. In democracies around the world, two seemingly distinct developments are playing out. On the one hand, the preferences of the people are increasingly illiberal: voters are growing impatient with independent institutions and less and less willing to tolerate the rights of ethnic and religious minorities. On the other hand, elites are taking hold of the political system and making it increasingly unresponsive: the powerful are less and less willing to cede to the views of the people. As a result, liberalism and democracy, the two core elements of our political system, are starting to come into conflict. 

        Scholars have always known that liberalism and democracy could, at times, be observed in isolation from each other. In eighteenth century Prussia, an absolute monarch ruled in a comparatively liberal manner by respecting (some of) his subjects' rights and allowing (a modicum of) free speech. Conversely, in ancient Athens, the people's assembly ruled in a blatently illiberal manner, exiling unpopular statesmen, executing critical philosophers, and censoring everything from political speech to musical scores.

          Even so, most political scientists have long thought of liberalism and democracy as complementary. While they recognized that individual rights and the popular will may not always go together, they held fast to the belief that they are meant to. Where liberalism and democracy do meet, the story holds, they form an especially stable, resilient, and coherent amalgam.

           But as the views of the people are trending illiberal and the preferences of the elites are turning undemocratic, liberalism and democracy are starting to clash. Liberal democracy, the unique mix of individual rights and popular rule that has long characterized most governments in North America and Western Europe, is coming apart at its seams. In its stead, we are seeing the rise of illiberal democracy, or democracy without rights, and undemocratic liberalism, or rights without democracy. 

Note 2: [MORE HERE] Says emergence of 'undemocratic liberalism' has been unnoticed by most political scientists (p.13) [His definition of 'illiberal democracy' also seems odd - in most places quite a few rights remain, it's the power structures that have been captured (think possibility of large-scale protests in Hungary right now, for example). 

Cross-references

— Authoritarianism.

— Autocracy.

— Constitutional decay.

— Illiberal democracy.

— Liberalism.

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