Democratic Decline

Democratic backsliding is a global phenomenon, yet few comparative studies analyze it. This paper seeks to fill the gap by examining pathways of deconsolidation in two paradigmatic cases of stealth authoritarianism in the Global South: Brazil and the Philippines. Separated by 19,000 kilometers, they share little political history or cultural ties. However, their experiences offer a clear roadmap to democratic backsliding: a staggeringly similar pattern that includes the influence of religious identity in politics - corruption scandals triggering a breakdown of social trust - the persistent influence of former military rule - the political capture of the security forces - and state-sponsored repudiation of traditional media. But for all these similarities, there is one notable divergence: the preservation of judicial independence. We will thus examine the role of an independent constitutional court in combating authoritarianism, and conclude with prescriptions on democracy protection.

It seems to be taken almost for granted that one of the normatively problematic characteristics of the current wave of democratic backsliding is that it is impossible to detect. As such authors have referred to the process of backsliding as “autocratic legalism“ or “stealth authoritarianism“. This is a process, which is objectively difficult to detect, and the resulting constitution would not appear to differ from a liberal democratic constitution to an outside observer. This paper will seek to tackle this ‘detection problem‘ by recasting it as a problem of institutional competence. It then goes on to consider the strengths and weaknesses of three types of institutions - state, political parties and civil society - to tackle different types of threats to democracy, arguing that each has its advantages and disadvantages when responding to threats to democracy.

This paper develops a theoretical framework that draws insights from evolutionary theory. It examines the institutional construction of constitutional courts through their symbiotic relationship with other actors in the political ecosystem. We assess limits of the influential idea that strong institutions—particularly courts—can prevent democratic decay by themselves regardless of contextual factors. We claim that this particular type of institutional fetishism overstates the autonomy of political institutions and muddles our understanding of broader social and political phenomena. Our contextual approach questions how institutional devices make judicial bodies not only work in a more trivial sense but also be effective in preventing democratic decay. Drawing from the recent Brazilian case, we reconsider arguments that (i) overstate the power of constitutional courts in preserving democracy, or (ii) understate the relevance of recent court-curbing episodes.

Despite the founding focus on democratisation, India is witnessing what is characterised by some as democratic backsliding. Through the lens of this political moment, I propose to reflect on the methodological approach to constitutional discourse, with a focus on discourse on the Constitution of India. The typical unstated premises of such discourse, André LeDuc shows, are that a constitution's existence is ontologically independent from how it is worked, and that correspondence to the objective constitution determines the truth of constitutional claims. However, written constitutions not only state but also do things. They constitute a new reality in a context that is inhabited and worked by socially embedded individuals and political parties. Thus, using John Dewey, Eric Weber, Philip Bobbitt, Dennis Patterson, and LeDuc, I will show the relevance not only of founding ideas, but also of the social practice of constitutional argument to questions of constitutional legitimacy.