Abusive Constitutional Borrowing: Legal Globalization and the Subversion of Liberal Democracy
In Poland, Venezuela, Rwanda, and several other countries, governments have in the past years altered basic rules of their constitutional system to mimic constitutional developments elsewhere. While these reforms use superficially democratic and liberal means, some of those processes mask nefarious, illiberal ends. In a groundbreaking new book, Professors Rosalind Dixon and David Landau study this phenomenon, coining the book’s titular phrase, Abusive Constitutional Borrowing, that is, the “appropriation of liberal democratic constitutional designs, concepts, and doctrines” for the purpose of “advance[ing] authoritarian projects.”
As the authors acknowledge, it has long been understood that would-be autocrats use legal means to further authoritarian agendas. Studying the rise of fascist movements in Europe in the 1930s, political philosopher Karl Loewenstein observed, “[t]he main principle of democracy is the notion of legality.” For that reason, he observed, fascism had “officially annexed legality.” “Since experience acquired in other countries does not commend the coup d’etat for the immediate conquest of the state,” Loewenstein argued, “power is sought on the basis of studious legality.” The observation has often been repeated over the last eighty years. Governments’ nominally committing to the rule of law while subverting its values has variously been described as “stealth authoritarianism,”3 “autocratic legalism,” “institutional populism,” and “anti-constitutional populist backsliding.”
Dixon and Landau move this debate forward, not only by documenting how constitutional law is used by would-be autocrats, but also by connecting these legal moves to core elements of the widely celebrated liberal constitutional model. Autocrats do not just use any law they can find, but they borrow constitutional techniques and doctrines with uncontested liberal democratic pedigrees, such as constitutional rights, judicial review powers, notions of constituent powers, the unconstitutional-constitutional-amendment doctrine, and theories of political constitutionalism.