What is democratic backsliding?
2022; Wiley; Volume: 30; Issue: 3 Linguagem: Inglês
10.1111/1467-8675.12627
ISSN1467-8675
Autores Tópico(s)Social Policy and Reform Studies
ResumoMuch recent political commentary suggests that a "backlash," "revolt," or "counter-revolution" is unfolding against liberal constitutional democracy (e.g., Eatwell & Goodwin, 2018; Galston, 2020; Mounk, 2018; Norris & Inglehart, 2019; Zielonka, 2018). As a generalizable observation about contemporary politics, this diagnosis is perhaps unduly alarmist (e.g., Przeworski, 2019). In some countries, however, sustained attacks on democratic institutions have indeed become commonplace. An emblematic example is the Hungarian Prime Minister Viktor Orbán's attempts to transform his country into an "illiberal democracy." Attentive to the weakness of domestic opposition and supranational democracy monitoring, Orbán, and his Fidesz party have gradually dismantled Hungary's post-1989 constitutional order. In its place has arisen a regime that is not outright dictatorial, yet less than democratic—something that may also be said about Turkey under Recep Tayyip Erdoğan and Poland after the electoral victory of Jarosław Kaczyński's PiS-party in 2015. Scholars routinely reach for the analytical frame of democratic backsliding to describe such phenomena. But though the term is widely used across different disciplines, its precise meaning has rarely been made the subject of sustained reflection. As one leading comparative politics scholar notes, the notion of democratic backsliding is "frequently used but rarely analyzed" (Bermeo, 2016, p. 5) Reacting to this, my aim in this article is to clarify the meaning of democratic backsliding. The ambition, in particular, is to develop a more general account of democratic backsliding that can be applied across a range of different institutional contexts. I begin by running through existing attempts to conceptualize democratic backsliding, noting that much of the existing research either under- or overdetermines the concept. The second section deals with the fact that the notion of "backsliding" implies regression, which in turn raises complicated philosophical issues concerning the accurate identification of progressive and regressive social phenomena. The remainder of the paper is devoted to developing a theoretical account of democratic backsliding that neither under- nor overdetermines the concept, and that can satisfactorily explain democratic regressions. Taking its cues from work in the tradition of critical theory, the account comes with a broadly framed distinction between rights-suspending and rights-obstructing forms of democratic backsliding. I discuss and illustrate this distinction and offer some reflections on how backsliding may usefully be analyzed using "immanent critique." Most conceptually oriented contributions to the literature on democratic backsliding focus on the techniques and strategies that political actors employ to attack democracy. These include, but are not limited to, coups d'état, executive aggrandizement, and the strategic manipulations of elections (e.g., Bermeo, 2016; Daly, 2019; Galston, 2020; Haggard & Kaufman, 2021; Khaitan, 2019a; Levitsky & Ziblatt, 2018; Lust & Waldner, 2015; Runciman, 2018; Waldner & Lust, 2018).1 A further conceptual feature of democratic backsliding that is frequently highlighted is that it occurs "through a discontinuous series of incremental actions, not a one-time coup de grâce" (Waldner & Lust, 2018, p. 95). A polity's "sliding away" from democracy is typically a process, not a clean, revolutionary break with the past. If the concrete actions and events that transform democratic regimes into less democratic or outright nondemocratic ones are relatively well-analyzed, the quite fundamental conceptual question of how exactly we can tell that a democracy has stopped being a democracy is rarely discussed. Most accounts limit themselves to brief, stipulative definitions along the lines of "Backsliding makes elections less competitive without entirely undermining the electoral mechanism" (Waldner & Lust, 2018, p. 95) or (to cite a quite different definition of democratic backsliding) "backsliding … denotes the state-led debilitation or elimination of any of the political institutions that sustain an existing democracy" (Bermeo, 2016, p. 5). Why making elections less competitive always and necessarily implies a deterioration of democratic quality, or how a democracy's political institutions should look to begin with, is not addressed. Instead, what democracy requires is treated as fairly obvious and straightforward. The fact that there exists a great variety of democratic ideals that could plausibly be invoked, none of which are value neutral or "obvious" choices, tends to be side-lined (for a critical discussion of this practice in political science, see Sabl, 2015). If one part of the literature on democratic backsliding underdetermines the concept by treating certain features of democracy as stable, obvious, and not in need of further discussion, there are numerous more specific case studies of democratic backsliding that offer rich and detailed discussions of what it means to erode a democracy. For example, research on the Hungarian and Polish governments' recent attempts at "disabling" (Bánkuti et al., 2012) their countries' constitutions avowedly treat a particular conception of liberal democracy with strong independent constitutional courts as definitive normative standard (e.g., Bugaric, 2016; Hillion, 2016; Kelemen, 2017; Kochenov, 2014; Müller, 2015; Scheppele, 2019; Wolkenstein, 2022). As Jan-Werner Müller (2015, p. 152) notes, this form of "constrained democracy" was the preferred conception of the "architects of the post-war West European order" and underpins the democratic constitution of the European Union. It is interpreted to be implied in Article 2 TEU, which Hungary and Poland are said to be breaching with their "illiberal" attacks on constitutional courts in particular (Castillo-Ortiz, 2019). In short, democratic backsliding in Hungary and Poland equals sliding away from the "constrained" conception of democracy that defines the Union's wider constitutional self-understanding. Unfortunately, such a context-specific understanding of democracy is only of limited use for the task of clarifying the meaning of democratic backsliding. For even if it makes some sense to say that attacks on independent constitutional courts are a core conceptual feature of democratic backsliding within the EU, given the conception of democracy the EU is based on, it would be odd to say that attacks on independent constitutional courts are a core conceptual feature of democratic backsliding as such, that is, in any given context. Democracies come in many different forms with significant variations in their institutional architecture, and some supposedly well-functioning democracies have no (or very weak) constitutional courts (e.g., the Scandinavian countries; see Larsen, 2021; Wind, 2010).2 Arguably a useful general account of democratic backsliding must be able to explain deteriorations of democracy in such "nonconstrained" democracies, too. The same problem of overdetermination plagues recent attempts to measure democratic backsliding using a large-scale quality of democracy datasets, such as the Varieties of Democracy Project (V-Dem). Without denying the value of this impressive project, its model-based definition of democracy as "electoral democracy plus three additional components: the rule of law ensuring respect for civil liberties, judicial constraints on the executive branch, and legislative checks and oversight of the executive" (Mechkova et al., 2017, p. 162), which is merely stipulated rather than defended, also runs the risk of overgeneralizing the place and function of particular ideal-typical democracy-sustaining institutions (this is a consequence of thinking about democracy in terms of particular "models" of democracy, see Warren, 2017; on this issue in connection with V-Dem in particular, see Dryzek, 2016, p. 362). For instance, the quite central assumption that more judicial checks on legislative processes indicate better democracy appears rash, not least because there exist well-functioning democracies with very few judicial checks, as noted before. Identifying democracy with very specific institutional features not only blinds us to the considerable institutional variations across democracies. Perhaps even more importantly, it also holds the risk of making use lose track of what political institutions should actually achieve within a democratic political system. As Warren (2017, pp. 40–41) argues, once we step back and ask that question, it often turns out that the institutions or practices that particular models of democracy foreground as definitive of democracy as such, have clear strengths and limitations. If we treat their mere existence and stability across time as a primary normative yardstick, we may well miss the bigger, "qualitative" picture of whether those institutions perform their supposed functions in a satisfying fashion.3 That is, we may grow insensitive to the question of whether they fulfill the function ascribed to them in a way that sustains or enhances democracy at the level of the democratic system. There are two primary takeaways from the prior section. First, a theoretically satisfying account of democratic backsliding must be able to explain why particular developments (e.g., making elections less competitive without entirely undermining the electoral mechanism) constitute a degeneration of democracy. Second, a theoretically satisfying account of democratic backsliding must be able to explain this without asserting a particular normative model of democracy that frames specific institutional features of democracy as definitive components of any well-functioning democracy. Another issue that needs handling concerns the question of whether we need to make specific theoretical assumptions about history in general and the historical development of democracy in particular when we speak of democratic backsliding. To better understand what is at stake, consider first that the notion of backsliding implies directionality: moving backward, from a desirable, "higher" state of development to a prior, "lower" state. This meaning has been inscribed into the term since its first usage in the English language. According to the Oxford English Dictionary, the verb "to backslide" was first used in a published work in 1581, in the context of the sixteenth century religious dispute between the English Latinist Walter Haddon and the Portuguese bishop Jerome Osorio de Fonseca. The specific phrase in which it was used—i.e., "the onely righteousnesse of Fayth, from whence they were back-slyden" —is indicative of the just-mentioned connotation of moving back to a lower, earlier state of (moral) development. The adjective "backsliding," in turn, makes its first appearance in the King James Bible of 1611 and then more than 200 years later, in Sir Walter Scott's 1816 novel The Tale of Old Mortality, where Scott speaks of "a backsliding pastor, that has … forsaken the strict path." Again, "backsliding" is invoked to describe a regress into an earlier state of amorality or sin. This normative connotation is to some extent retained in the term democratic backsliding. Bermeo (2016, p. 6) acknowledges this when she notes that "When linked with the word democratic, the term's current secular meaning is in keeping with its origins in that it denotes a willful turning away from an ideal." However, there is an important difference between the early modern, religious use of "backsliding" or "to backslide" and the contemporary secular notion of "democratic backsliding." Whereas the former is based on a specifically Christian ideal of striving toward spiritual maturity and perfection (according to which "No one is perfect who does not strive for further perfection" [Koselleck, 2010, p. 172]), the latter (at least implicitly) turns upon the kinds of Enlightenment philosophies that see history as gravitating towards ever-greater emancipation (see, paradigmatically, Hegel, 1986).4 The assumption appears to be that the theory and practice of democracy have over the course of the nineteenth and twentieth centuries progressively evolved to become more inclusive and democratic, culminating in (as one well-known commentator put it) "the universalization of Western liberal democracy as the final form of human government" (Fukuyama, 1989, p. 4). Accordingly, any departure from this "final" type of regime (e.g., making it more "illiberal," as Viktor Orbán and his party tried to do) equals regress—sliding backward. There are at least two well-known problems with such developmental views of history. For one thing, many of their most common variations adopt an implausibly teleological vision of progress that casts history as moving unidirectionally toward a predetermined goal. As Buchanan and Powell (2018, p. 7) put it, however, acknowledging the "bloodbaths of the twentieth and early twenty-first century" requires abandoning "linear conceptions of progress" that imply "continuous progress or at least rule out major regressions." (Theodor W. Adorno [2006, p. 4] famously drew an even stronger conclusion: "After Auschwitz," he argued, "any appeal to the idea of progress would seem absurd given the scale of the catastrophe.") For another thing, developmental views of history typically have a strong Eurocentric or Western-centric bent. That is, they tend to present a "historical story that positions European modernity as the outcome of a developmental learning process, [and] this story necessarily positions non- or premodern Others as cognitively and normatively inferior to 'us'" (Allen, 2016, p. 79). This not only has discomforting imperialist overtones. Insofar as it universalizes what might be a specifically Western understanding of democracy, it also jars with the article's ambition to offer a general account of democratic backsliding. For these reasons, a satisfactory account of democratic backsliding would do better not to rely on a Eurocentric developmental view of history. It may be asked why we should bother dealing with vexing issues of regression or progress if we could give up the concept of democratic backsliding instead. The narrower concepts used in some of the empirical and legal literature, such as "coup d'état" or "executive aggrandizement," come with much less philosophical "baggage" to navigate. Aren't these ultimately better alternatives? While there is nothing wrong with using these concepts to categorize the different kinds of things that may occur when democracies are under attack, it would be rash to dispense with the notion of democratic backsliding altogether. As a term that describes a regressive development (in English, backsliding is indeed a synonym for regression), it captures more accurately than alternative concepts what poses the problem in the first place: that coups d'état or acts of executive aggrandizement are usually threatening or undoing hard-fought political achievements concerning individual or collective freedoms (cf. Ahlhaus & Niesen, 2019; Haggard & Kaufman, 2021; Schäfer & Zürn, 2021). It has, in other words, distinctive advantages as a normative concept for describing what is wrong with attempts to undermine democracy. explain why particular developments constitute a degeneration of democracy (rather than simply stating that they are a degeneration of democracy), which presupposes that it can identify democratic regressions without resorting to a Eurocentric developmental view of history, while resisting the temptation to overgeneralize the place and function of particular ideal-typical features of democracy (as "models of democracy"-approaches usually do). I suggest that the tradition of critical theory can provide useful theoretical resources for constructing an account of democratic backsliding that meets these demands. Both democracy and regression are themes that figure prominently in that tradition, and critical theorists have been exceptionally sensitive to the problems that plague teleological conceptions of history (e.g., Allen, 2016; Habermas, 1992; Horkheimer & Adorno, 1969, pp. 234–237; Jaeggi, 2018; Verovšek, 2019). Nor, moreover, do critical theorists resort to freestanding normative standards that are decoupled from the perspectives of those who participate in a particular individual or collective practice. Characteristically their focus is on reconstructing and then interrogating the norms and assumptions that inhere in widely accepted practices and institutions. The most comprehensive "generalizing reconstruction of the self-understanding on which historically known democratic constitutions and declarations of rights are necessarily based" (Maus, 1995, p. 839) is Jürgen Habermas' Between Facts and Norms, which identifies as the backbone of any existing democracy a system of rights that are meant to secure citizens' public and private autonomy (Habermas, 1992, pp. 151–165). This understanding of democracy can fruitfully inform the present inquiry. Habermas' approach is to start with an analysis of the practice of democratic constitution-making. A focus on the presuppositions that participants in that practice must unavoidably make in order for the practice to make sense to them is intended to unveil that constitutional democracy fundamentally "represents an enterprise of free and equal citizens who govern themselves through the medium of positive law" (Patberg, 2017, p. 54). This insight, Habermas (1992, p. 668) suggests, may be reformulated as a guiding question for every constitution-maker: "what rights must citizens mutually grant one another if they decide to constitute themselves as a voluntary association of legal consociates and legitimately to regulate their living together by means of positive law?"5 basic rights (whatever their concrete content) that result from the autonomous elaboration of the right to the greatest possible measure of equal individual freedom of action for each person; basic rights (whatever their concrete content) that result from the autonomous elaboration of the status of a member in a voluntary association of legal consociates; basic rights (whatever their concrete content) that result from the autonomous elaboration of each individual's right to equal protection under the law, that is, that result from the actionability of individual rights … basic rights (whatever their concrete content) that emerge from the autonomous elaboration of the right to an equal opportunity to participate in political law-giving (Habermas, 2001, p. 777).6 That the substantive content of these sets of rights is not specified is deliberate. The system of rights is an abstract framework for positive democratic constitutional law that, as Ingeborg Maus puts it, is intended to leave room for the "political autonomy of constitutional lawmaking and law-giving citizens who first develop rights from their own vantage point, bring them historically to consciousness, and enact them into positive law" (also see Habermas, 1992, pp. 160–162; Habermas, 1996, p. 90). It is thus up to the citizens of real-existing democracies (or their representatives) to spell out the concrete content of their basic rights, as well as establish the central institutional components that sustain their constitutional order. None of these things, the thought goes, should be determined from the observer-perspective the theorist. The attractiveness of this approach lies in part in its minimalism. It does not insist on the presence of particular political institutions nor does it stipulate any substantive fundamental rights that a polity must secure if is to count as "democratic." As such, the four sets of basic rights can be translated into multiple "varieties" of democratic constitutionalism. They are just as compatible with democracies that reign in majority rule through legal checks as with systems of collective self-rule that lack such constraints. So long as citizens' rights to an equal opportunity to participate in political law giving are protected in other ways,7 Habermas' system of basic rights does not even require that democracies hold elections. Clearly, then, it can satisfy desideratum (3). No particular model of democracy is implicitly assumed as normative ideal. Less straightforward is the question of whether Habermas' approach can also satisfy the rather demanding desideratum (2). It is after all parasitic on a broader theory of progressive social evolution that positions Western modernity as the outcome of moral-practical learning (see, most notably, Habermas, 1981). Learning processes, on this line of thinking, were set in motion by the Enlightenment and the democratic revolutions of the late eighteenth and nineteenth centuries. In Habermas' own words (2019, p. 737), these events introduced a "new tension (Spannungsbogen) between norms and reality … into social reality itself," since the rights that were framed as universal by the emerging republican constitutions were first only enjoyed by a small privileged minority. However, those who sought to criticize "lacking social and political justice" were now in a position to make appeals to "the non-realised normative content of non-saturated basic rights and claims to justice" (Habermas, 2019, p. 737). Eventually, these appeals, and the episodes of resistance that sometimes accompanied them, encouraged the sort of collective moral learning that led to the gradual expansion and institutionalization of equal freedoms to universal suffrage, human rights, and so on. a certain vestigial remnant of the traditional philosophy of history remains in … the notions of sociocultural development, historical learning, and moral-political progress that inform Habermas's … [conception] of modernity. In other words, Habermas [remains] committed to a … core understanding of social progress, such that if a society can be said to have progressed then this will be because that society followed a certain developmental, unidirectional, and cumulative moral-political learning process. As far as the system of rights is concerned, the potential problem is twofold. On the one hand, being pegged to what is an avowedly Eurocentric theory of modernity, in which the motor of progress are moral-practical learning processes instigated by the Enlightenment, it may be seen as (perhaps unintentionally) devaluing alternative developmental paths (Allen, 2016, p. 17). On the other hand, when employed as a normative standard, the system of rights is vulnerable to the criticism that it universalizes a particular European or Western experience of constitutionalism, side-lining other forms of democratic self-government. Does this then disqualify Habermas' account? The latter of the two issues hardly poses a problem. Even if the emergence of democratic constitutionalism may initially have been a European particularity, arguably the notion of free and equal citizens exercising self-rule through the medium of positive law also underpins non-Western democratic constitutions, without it always or necessarily being a Western imposition (see, e.g., Ackerman, 2015; Galligan & Versteeg, 2013). It may well be that some societies—possibly at local or substate levels—have opted for radically different forms of organizing democracy, and it seems clear the system of rights cannot be applied to those societies. But these are rare exceptions. Recall, moreover, that the four categories of basic rights are abstract "placeholder" rights whose concrete content is meant to be shaped by real constitution-makers. This also tempers the force of the objection that Habermas' approach unduly universalizes a European experience of constitutionalism, for it raises the prospect of a large variety of substantive formulations of rights that are informed by non-Western normative commitments (Khaitan, 2019b). As already noted, decoupling the form of rights from their content makes space for a plurality of constitutionalism. The former issue, to do with the Eurocentrism of Habermas' theory of modernity, proves more complicated. If a normatively adequate account of democratic regressions is to emerge, it seems that a step back from Habermas is required—otherwise, it is difficult to see how desideratum (2) could be satisfied. One possibility is to retain the developmental theory of modernity and restrict the scope of application. This is what Ahlhaus and Niesen (2019) attempt in their account of "selective regressions." Their suggestion is that one can fruitfully deploy an "Enlightenment conception of progress" to identify regressions as long as one does not universalize its reach: "Insofar as the discussion of regressions has an indexical reference to one's own order, it can dispel the suspicion that it has an imperial understanding of progress, as it criticizes the collective self, not the other" (Ahlhaus & Niesen, 2019, p. 494). But while I am not unsympathetic to this approach, for our purposes it seems needlessly restrictive. If, as I suggested, the internal logic of democratic constitutionalism that Habermas reconstructs in his system of rights travels beyond the West without being a mere top-down imposition with imperial intent, perhaps we need not limit our analysis of democratic regressions to our "own order." A more fruitful direction is to modify one's conception of progress. In recent critical theory, the question of how a broadly applicable, non-Eurocentric understanding of progress might look like has been usefully approached by framing progress in nonteleological, formal, and negativistic terms (Allen, 2016; Jaeggi, 2018; Verovšek, 2019). Progress, it has been suggested, is imaginable without assuming that progressive developments have a particular final goal (a rejection of teleology), nor need a generalized notion of progress stipulate any particular substantive outcomes that dynamics of sociopolitical change need to generate in order to count as "progressive" (a formal, rather than substantive, view). Instead, it may be possible to think of progress simply as "part of an accumulative problem-solving process that is not hampered by … moments of regression" (a negativistic take on the identification of progress) (Jaeggi, 2018, p. 36; also see Kitcher, 2021, pp. 15–26; Zurn, 2020). As Rahel Jaeggi (2018, p. 36) explains, all human societies constantly try to solve problems that arise due to "social crises, conflicts, and contradictions," and to the extent that these acts of problem-solving do not involve "moments of regression—extending from ideological distortions … to … alienation, and blockages to collective action" —they may be considered progressive developments.8 Identifying moments of regression, in turn, requires a sustained analysis of the internal inconsistencies and contradictions of the respective problem-solving processes and their outcomes. This way of conceptualizing progress has particular merit when thinking about democratic backsliding as a regressive phenomenon that may occur in various different cultural contexts. It enables us to treat democratic backsliding as a particular species of identifiable regressions that are produced by political problem-solving processes within constitutional democracies, without indexing the analysis of those regressions to an Enlightenment conception of progress. I speak of a "particular species of regressions" because the relevant regressions concern those fundamental constitutional rights that correspond to the basic rights Habermas sketches in the system of rights: as I will explain more below, at issue is either the outright suspension of those rights or that the exercise of those rights is obstructed without them being suspended. Problem-solving efforts that end up limiting the exercisability of previously exercisable rights are identifiable as regressions, moreover, when they fail on their own terms, undermining the norms they are meant to advance or producing results that contradict those norms altogether. In other words, the standard according to which regressions can be identified is the norms that are constitutive of particular, contextually situated political problem-solving processes. Putting the point in another way, identifying instances of democratic backsliding requires a close study of the norms that inhere in those problem-solving processes that lead to the curtailment of fundamental rights, followed by a critical appraisal of the (in)consistencies between norms, processes, and outcomes. Note that there is nothing unfamiliar in approaching the matter in this way: immanent critique is the term sometimes used to describe an exercise of this kind. Immanent critique takes as its point of departure "norms that are inherent in an existing (social) situation" or, indeed, constitutional order. It then proceeds to investigate whether "the relationship between norms and reality" may be "inverted or reversed," which is to say that the norms in question "are operative but have become contradictory and deficient" (Jaeggi, 2009, pp. 286–287; cf. Habermas, 2019, pp. 238–240). It should be added that immanent critique is traditionally thought also to involve the transformation of both the norms the underpin particular social practices and institutions, and the practices and institutions themselves (Benhabib, 1986, pp. 106–107, 226). For present purposes, though, we may limit ourselves to tapping the diagnostic power of immanent critique. Its transformative capacities, however central to the broader project of critical theory, are not required for identifying democratic backsliding. To sum up, understanding progress as the absence of regressions, and identifying regressions through immanent critique—a method that can in principle be used by any citizen—allows us to avoid the charge that the criteria of judgment are "partial, reflecting the history and tradition of a
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