This episode explores the political phenomena related to governance in illiberal democracies. What relationships do such regimes have to the rule of law and the constitution? How does legal cheating play a role in the governance style? And how can democracy be restored after an illiberal interlude?
Guests featured in this episode:
Professor Andras Sajo, former judge at the European Court of Human Rights & founding Dean of Legal Studies Department at the Central European University,
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Bibliography:
Glossary:
What is Max Weber’s view on charismatic leadership?
(at 00:9:20 or pg. 2 in the transcript)
In his essay “The Three Types of Legitimate Rule” published in 1958, the influential German sociologist Max Weber introduced his theory of authority which was based on tripartite classifications of authority: traditional authority, rational-legal authority and charismatic authority (also referred to as charismatic leadership or domination). According to Weber, order is based on two fundamental forms: norms and authority.
Charismatic leadership, according to Weber, is found in a leader with extraordinary characteristics of individual, whose mission and vision inspire others. In such, this charismatic leader is seen as the head of any social or political movement, sometimes gifted with divine powers such as: religious prophets and Gurus. However, charismatic leadership is considered unstable as it is related to faith and belief; once these fade, the authority and leadership dissolve.
Thus, charismatic authority depends on the extent to which a religious or political figure is able to preserve moral influence and prosperity to his followers. Weber favoured charismatic leadership and saw its inevitable influence over the other two authorities with the use of soft power in both the traditional and legal-rational authorities. Source
What is India’s Citizenship Amendment Act?
(at 00:21:51 or pg. 5 in the transcript)
In December 2019, the Indian Parliament passed the Citizenship Amendment Act 2019. The Act amended the law to fast-track citizenship for religious minorities, specifically Hindus, Sikhs, Buddhists, Jains, Parsis and Christians, from Afghanistan, Bangladesh and Pakistan who entered India prior to 2015. However, the Act does not extend to Muslim minorities, for example: the Ahmadiyya from Pakistan; the Rohingya from Myanmar; and the Tamil from Sri Lanka. Opponents of the Act have claimed that it is unconstitutional as it links citizenship to religion and marginalises India’s Muslim population. However, the Government has argued that the law protects religious minorities.
The Act has been referred to the Indian Supreme Court. In January 2020, the Court said it would not put the implementation of the law on hold but asked the Government to respond to the petitions challenging the law’s constitutional validity within a month.
Some Indian states have announced that they will not implement the law. However, the Government has stated that states have a “constitutional duty” to do so.
The Act has led to widespread protests, with activists and human rights organisations, such as Amnesty International, criticising the police and the Government for the response. Source
What is the concept of constitutional patriotism?
(at 00:23:02 or pg. 5 in the transcript)
The purpose of constitutional patriotism, -Jürgen Habermas's well-known theory- as a set of beliefs and dispositions, is to enable and uphold a liberal democratic form of rule that free and equal citizens can justify to each other. The object of patriotic attachment is a specific constitutional culture that mediates between the universal and the particular, while the mode of attachment is one of critical judgment. Finally, constitutional patriotism results in a number of policy recommendations that are clearly different from policies that liberal nationalists would advocate. Source
Who was Gustav Radbruch?
(at 00:27:30 or pg. 6 in the transcript)
Gustav Radbruch, German jurist and legal philosopher, one of the foremost exponents of legal relativism and legal positivism. He also served the Weimar government as a Minister of Justice (1921–22; 1923). Radbruch’s legal philosophy grew out of the neo-Kantian principle that law is defined by and depends upon moral values. In such a system, there are no absolutes; thus, the concepts of right and justice are not absolute but are relative to time and place and to the values of the parties in a given legal proceeding. As a result of Nazi rule in Germany, however, a radical change in Radbruch’s outlook occurred in his later years. He abandoned relativism and turned toward a philosophy of natural law that recognized certain absolute, innate properties of law and justice. Source
SR: Welcome to Democracy in Question, the podcast series that explores the challenges democracies are facing around the world. I am Shalini Randeria, the Rector and President of Central European University in Vienna, and Senior Fellow at the Albert Hirschman Centre on Democracy at the Graduate Institute in Geneva.
My guest today is Professor András Sajó, former judge at the European Court of Human Rights. He's the founding Dean of Legal Studies Department at the Central European University, where he is currently professor. A distinguished scholar in the field of human rights, Professor Sajó is a prominent constitutional lawyer who has been involved in the drafting of constitutions in Ukraine, Georgia, and South Africa. Among his many books, let me just mention two; Constitutional Topography: Values and Constitutions, in 2010 and his most recent book titled Ruling by Cheating: Governance in Illiberal Democracy, that came out this year. He's also the editor of the Oxford Handbook of Comparative Constitutional Law.
In our conversation today with András Sajó, I would like to focus on the question of what he calls governance in illiberal democracy. What is the nature of the political phenomena that are called by this name? What relationship does such a regime have with the rule of law and, indeed, with the constitution? What kind of cheating is part of the governance style of these new regimes and how can we restore democracy after an illiberal interlude? Let's find out with Professor András Sajó in this episode.
András, welcome to the podcast. It's wonderful to have you here.
AS: I'm really glad to be involved in this great project.
SR: So, András, let me start with the fact that the emergence of illiberal regimes, so-called, out of populist movements has transformed democratic politics in many parts of the world in the last couple of decades. Concerns about democracy are no longer just about the birth pangs of new democracies in the Global South or in Eastern Central Europe, they now abound equally in so-called mature democracies.
An important question about illiberal democracies in Europe and elsewhere is the question of legitimacy; whether an illiberal regime, like that of Orbán, Erdogan, Bolsonaro, can be called democratic, given its assault on liberal institutions and the rule of law. In your new book, Ruling by Cheating, you make a very important argument about these when you say that, while these regimes may exhibit authoritarian or even despotic tendencies, we should not call them authoritarian or despotic because they remain members of the democracy family. You seem to be thinking here in terms of what Wittgenstein called "family resemblances." Why do you think that these regimes should be thought of as members of the democracy family and what implications does such an argument have for our critique of a regime like that of Orbán in Hungary, for example?
AS: Certainly, this is a hotly debated issue. Because to call something a democracy or to deny that it is a democracy has very strong consequences, both for shaping people's reaction and in terms of international legitimacy and domestic legitimacy.
Now, to call these illiberal democracies authoritarian, or authoritarian regimes is very misleading and it just increases internal resistance by those who are in power. There is a very important element here, that the leaders of these plebiscitarian democracies are all the time maintaining a very important relation with that part of the population that they find relevant. And what they find relevant is that part of the population that can bring them back to power every time there is an election.
So, there are problems with the fairness of the elections, but these are relatively fair and certainly more or less free elections. And there is an opportunity for the opposition to challenge it. The opposition, for a number of reasons, is not always capable of making use of that. But they are not beyond the point of no return. And there is a genuine legitimacy. "Genuine" in the sense that what these leaders do is, of course, through manipulation, the result of a popular desire. An obscure desire, perhaps, which is then channeled into very specific directions.
Like if you take the anti-migrant sentiment. This was, to some extent, present in these societies, but not something central. It required a lot of imposed fear to ferret it out from society and now they are genuinely fed. Being genuine doesn't mean legitimate, of course, but that's how the system works.
And I think that's why it should be considered in this family. After all, perhaps Hungary was not invited to this meeting of democracies by Biden, Poland was. So, they are accepted at the table, at the family table. They are very distant relatives, but still they are showing enough resemblance to be considered part of the family. And, perhaps, there is a problem with the family. The family is not as noble as it claims to be.
SR: So many very interesting points that you make. Let me pick up one, and then I'll come back to another. The first one I want to pick up is your remark the family, the democratic family, and we have seen it gather recently at Biden's invitation, the democratic family is not as noble as it may look at first sight. Could you elaborate on the variation within the family and why distant relatives therefore are still relatives?
AS: Sajó: So, when people talk about democracy, and I am among many others, we talk about a value and a normative concept. And that's one thing. And then you have a political reality where various concepts are used for purposes of self-description, etc. The two are not 100% matching. So, when you criticize, as I dare, this democratic family concept, this is not a criticism of democracy as such. Democracy has its own problems. And when you allow these distant relatives to eat at the table the way they eat, claiming that's their tradition, which it's not, that's a problem. But it's a very different problem from what is the political nature of that family that loves to call itself a family of democracies, that's a political construction.
And, again, I'm convinced that keeping together and trying to civilize family members is necessary in this very complex world where the alternative is certainly not very promising. So, you really have to create some kind of family togetherness. It comes at a price.
SR: I take your point. Let me pick up a second idea that you put forward right at the beginning, and that is a key concept that you have borrowed also in the book from Max Weber to describe the precise nature of these regimes. And that is the term you used, "plebiscitarian" leader democracy. So, could you explain why this is a good conceptual framework to analyze the kinds of changes we have seen in Hungary, Turkey, Poland, Venezuela, to name just some of the countries that you have focused on?
AS: Right. So, the idea of Max Weber is based on the assumption that there is a charismatic leader, he influences people with his charisma or he is accepted because of his charisma. It's not like a religious charisma that you just believe because of the direct relation of the leader with some extra-human or superhuman characteristic or source of power. Here, there is a constant feedback, a loop. The leader insists on having support from the people, invites people to endorse him, to identify with him. That’s the source of his power. And once he loses that support, like de Gaulle did, in normal circumstances, he resigns. That's why it is a democracy.
The problem is that a plebiscitarian leader may have a vested interest in perpetuating his or her power. Therefore, the plebiscite, which is already something quite manipulated, becomes a tool of self-perpetuation, of the power's self-perpetuation. You ask the people to confirm the power of the leader on the terms set by the leader. That, I think, is how these systems work.
SR: So, let me turn to another aspect, András, which you point to in your book and which is the argument that rule of law and what you very rightly call the usurpation of the state through an attack on constitutional institutions, these are important tools, also, in the playbook of these regimes that we are observing today, regimes that govern by cheating.
Now, very interestingly, you lay out a theory of cheating in your book which I think is important for very many reasons. One, because it allows us to think beyond each of these regimes as somehow constituting an exception, and it allows us then to grasp these practices as common to a particular toolbox. Even though we may recognize that each illiberal democratic regime has emerged due to very specific and different reasons and conditions in a country, the idea that there could be a theory of cheating allows us to still look at the commonalities.
And you provide a fascinating catalog of "techniques of legal cheating," as you call them, which are the hallmarks of these kind of illiberal governance practices that routinely subvert constitutionalism and bend it to the wishes of a charismatic leader. So, you talk about "self-blinding," instead of self-binding, falsification of facts, arbitrary applications of rules, circumventions, etc. So, could you say something about these legal cheating techniques and give us a couple of really concrete examples so that we can understand how are these techniques being really put into practice?
AS: Allow me to start with a case I had at the European Court of Human Rights. Which also tells you that this self-blinding is also inherent in judicial work, the difference being that it becomes systematic and systemic in illiberal democracies. So, here is the example.
The Hungarian government introduced a law which suddenly ended tobacco sale licenses in Hungary. It was very easy to get that tobacco sale license and there were tens of thousands of shops selling tobacco. The government's argument was that this is detrimental to the health, especially of the youth, and they will limit the number of licenses. So, they abolished without compensation, they revoked without compensation the licenses of these shopkeepers, who many of them probably went bankrupt. And then they distributed these new licenses to a limited number of people. Journalists and politicians claim that these rather lucrative licenses went to government cronies. It was clear, that was in the docket when we had to look into this, that the new license holders received the license without any serious plan in the public bid process. So, they just got these in a completely arbitrary way.
Now, the European Court of Human Rights considered these to be “possessions”. That's the word used in the European Convention. A license is a possession if you take it away without compensation, especially where there is not enough lead time to adjust to it, that's a violation. In that respect, it was an easy case. And we stopped there.
Now, imagine this kind of reasoning in a domestic court. Where using very traditional legal reasons, like the assumption that the legislative intent is in good faith, that's a standard consideration in law, right? You have to assume good faith. And, by the way, if you are a member of the Council of Europe, which is the body behind the European Court of Human Rights, you sign a convention and a treaty which declares that you accept the principles of democracy. Now, how on earth can you assume that a member of an international organization created for democracy is not a democracy? The presumption is that it is a democracy. So, this is how it works. Basically, the legal system is inherently vulnerable where there is no good faith.
SR: Let me come to a much larger point, András, which you make in the book, and that is about constitutional changes and amendments. So, the transformation of the constitution through amendments, or even revocation of key principles, seems to be a common feature of right-wing political agendas across the world. The interesting question for me as somebody who is not a lawyer, and not a constitutional lawyer, like yourself, is why are these leaders so obsessed with constitutions while they hollow them out?
So, let me quote you. You write, "Amendments to the constitution take place according to the momentary interests of the political power, like in any democracy where the constitution has no cumbersome amendment rules. The ultimate attachment to the spirit of the constitution, the idea of respecting an unamendable core is missing." So, the one question is really why then are these leaders, who definitely don't want the constitution as something which binds their power, holds them accountable, why are they so obsessed with constitutions and constitutional changes rather than just get rid of the constitution?
AS: I think this insistence on legal forms, and in particular constitution, has partly to do with the existing social ethos. A law is considered something that is respectable, that people have to respect. And, at least in Hungary, this has a very long tradition. Now, people were not particularly enthusiastic about the forms of law, but they said, "Okay, laws are laws." So, in other words, again... it's like Midas' touch. If King Midas, one of the mythological kings in ancient Greece, if he was touching something, it turned into gold. So, if you manage to declare something in legal forms, then it has some credibility. That's socially attractive for the leader.
There is a second and, I think, equally important element here. Once you control the constitution, you control the whole legal system; and in order to maintain a specific order that serves the interests of the power holder, you need a chain of command. And the law is a chain of command. It's not by accident that even communist leaders, like Lenin, insisted on what Lenin called “socialist legality”. Because he was very much concerned that the central wishes are not followed in the provinces. So, law is an important tool of creating obedience within the state.
But, again, take the example of public procurement. If you can write the rules of public procurement and it is all based on the constitution, deducted from the constitution. If you can create rules of the public procurement, for example creating exemptions from the public procurement, in the name of national economic interest, the government grants itself the power to say that certain investments, certain procurements, are of this nature of specific economic interest for the national economy. So, they can create exceptions to ordinary EU-sanctioned rules of public procurement. So, you dictate, through the rule, the outcome.
And, in order to make this really coherent, you need to start with the constitution, which will then authorize the government to have specific powers in specific circumstances. It's very difficult to challenge that once you accept it, that all this emanates from the constitution.
And then, third and last, is that you really would like to be seen, again, at the table as a constitutional regime. You can say, "Look, I'm not only born into this, but I can demonstrate that I have all the features you have. You have a constitution, I have a constitution. Look at my constitution. Is there a separation of powers? Yes, there is. Is there a constructive vote of confidence? Oh, sure. We just copied it from the German Basic Law. So, what's the problem?" So, that's the third element - international recognition.
SR: So, let me pick up one point here, which you just mentioned in the German case. Because, of course, there’s Habermas’s very famous idea of “Verfassungspatriotismus”, that is categorizing Germany’s post-war the need for legitimacy, and that legitimacy provided by the constitution and the Basic Law for the new regime which was established after 1945.
But even if I take a very different example, and that would be India. When there were broad protests by ordinary citizens in the streets, who took charge of the streets, occupied the streets, and protested against the Citizenship Amendment Act by the government in 2019. Citizens were sitting on the crossings on the roads holding up the Constitution in their hands. And I was asking myself about the attachment that is necessary to the Constitution, in order to be able to save, protect, the spirit of the Constitution.
So, could one argue that there must already exist a certain ambivalence or even an indifference to constitutions in those countries where this kind of subversion of the constitution is possible? Or what kinds of conditions does one need to develop a certain emotional attachment, as we saw in India, quite unexpectedly but very strongly, among very ordinary citizens to the Constitution as a founding document?
AS: I'm not sure that everybody in Germany, or even scholars in Germany, would subscribe to this idea of constitutional patriotism envisoned by Daniger and Habermas. But we have to see this proposal in the German context. Certain forms of identification for nation-building were off the chart because of Germany's history. So, I think to rely on nationalism or even adoring the state, those were impossible in Germany because of the history. And so you move towards a document which was everything that is not good, everything that denies what is not good in German history. But that is, I think, the function of this theory.
In Hungary or in Poland, and very differently in Latin America, this is not a consideration. You are allowed to be a pure-blood nationalist, it's okay. So, you are not constrained by these historical experiences, although the history should have taught a similar lesson. But the fact is that you have an alternative.
Now, the much more interesting story is that of India, where I think there was a real issue at stake. It was about hundreds of millions of people feeling that they will be treated as second-state citizens. If politics continues along the lines of this new citizenship law, they will be further discriminated. And that was contrary, clearly contrary, to the Constitution.
So, in that respect, the Constitution is really...it's not that your identity is built on the constitution, but your identity is something that is affirmed and protected by the constitution. So, you turn towards the Constitution in those circumstances, because of what you are or what you are afraid of that will be taken away from you. You find a kind of refuge, if you wish.
SR: So, how do we begin to undo the damage done both to constitutions as well as to other institutions which provide the necessary checks and balances in a liberal democratic regime? And I ask myself, "What are the kinds of tools that are there at our disposal to rebuild these institutions and also the ethos of liberal democracy after the illiberal regimes that we have seen? And can institutions, like courts, especially supranational institutions, like the European Court of Human Rights, play a role here?"
AS: I'm afraid no one knows the answer. And I'm also afraid that our thinking is very much blocked by legalism, by ritualistic respect of legal formalities which are imposed on us by the very system. This tells you why is this so important for the charismatic leader of plebiscitarian democracy. Because once they started to insist on legal formalities to build up their own power, they imposed a positivist frame of thought on political elites and even general public.
And, of course, as I said, it's a versed mistake to call these regimes authoritarian or totalitarian and compare them to authoritarian regimes. But it's part of the story that, at least in totalitarian regimes, one of the sources of success of these regimes, the fact that it was so easy to carry through very, very serious human rights violations and oppression in 1933, had to do with the German legal mentality. Which is then criticized by a former Minister of Justice and legal philosopher Radbruch after World War II, and he claimed that in certain circumstances you can just disregard the German law, which remained in force in 1945. So, you're a judge, you should not apply.
Now, the problem with that logic is that is simply not applicable in its totality. So, what to do? Well, interestingly enough, the European Court of Human Rights and the Court of Justice of the European Union in Luxembourg, they moved into a new direction. So, the rule of law is not an absolute, it does have exceptions. You know, there are crimes. But it is recognized a statute of limitation applies, and then you cannot convict even those who should be convicted under the rule of law. And it works the other way around, as well. So, most international human rights conventions do allow a disregard of the rule that there is no crime without first having a law on it. When it came to war crimes, they made an exception to it, it's a recognized exception. And there are many other exceptions built into the rule of law because legal formalities come at that price.
Now, talking about the European courts, one of the most important elements of the rule of law, I would say an indispensable one, is irremovability of judges, they can be removed only in a very specific process and only for a cause, so there ought to be an extremely serious disciplinary violation, etc. The courts realized that, like is true with all rights, that rights are not absolute, except when it comes to torture. To be exempt of torture, that's an absolute right. But most rights are not absolute. And the same applies to irremovability. It's also very important to stress that these measures require extreme caution. So, only where this is compelling and where the measure is satisfying standard requirements of proportionality that they can apply.
But all I wanted to say that, you asked me about international bodies, in particular courts. And what I would like to learn from them is that they offer a more nuanced thinking about these things. It's not necessarily a practical help, but at least it helps you to think through. And that's a way to approach this problem, what I call restoration of the rule of law.
Shalini: Thank you very, very much, András, for these fascinating insights into both the toolbox, the playbook of techniques of cheating and illiberal governance, and also some thoughts about how we could restore the rule of law in these countries.
AS: Thanks, it was a real pleasure to talk about these matters with you.
SR: So, we've heard a very strong argument why illiberal regimes are members of the democracy family, rather than categorizing them as authoritarian or despotic. Some may be distant relatives, but all really existing democracies, whether new ones or so-called mature ones, don't always live up to their own ideals. These new plebiscitarian leader democracies enjoy popular support, they have been brought into being through free, more or less, fair elections, even if these elections have been manipulated to some extent, but none of them are beyond the point of no return.
The charismatic leader at the center of these regimes is dependent on popular support. Even if this popular support can be based in a quite obscure popular sentiment or desire, but it's based in popular sentiment nonetheless. What should caution us, however, about these leaders is that they have an interest in self-perpetuation of their own power. It's an institutionalization of charisma, probably very different from what Max Weber meant by the future form of these regimes.
We've also heard about the techniques of legal cheating as an important part of the toolbox of illiberal democracies, circumvention, arbitrary application of norms. But, nonetheless, we've also learned why illiberal and authoritarian leaders are very keen on law and are wedded to constitutionalism. As it not only ensures a chain of command which is legitimate, but they also are keen on the international recognition which this kind of adherence to a constitution brings with it. Constitutions my not build national identity, but they can protect, and are being used to protect, one's identity and citizenship rights.
We don't have a blueprint on how to undo the damage done to liberal democracies today. We know, however, a little bit about what ought not to be done. Extra legal measures are no answers to restoring democracies. So, adherence to rule of law in dismantling these illiberal regimes is absolutely crucial.
This was the ninth episode of Season 3. Thank you very much for listening and I hope you have enjoyed it. Please go back and listen to any episode you might have missed. And, of course, let your friends know about this podcast if you're enjoying it. The next episode will be the 10th and final episode of this season. And then, after a short break, we'll see you again in the fourth season. You can stay in touch with the work of the Central European University at www.ceu.edu and the Albert Hirschman Centre on Democracy at www.graduateinstitute.ch/democracy.