Pub Date : 2021-06-24DOI: 10.1093/oso/9780192893765.003.0005
Rosalind Dixon, David E. Landau
This chapter explains the concept of abusive judicial review: the use of courts by regimes to achieve anti-democratic constitutional change. Abusive judicial review involves abusive constitutional borrowing in two distinct senses: first, regimes lean on captured or cowed courts as a strategy to legitimate or advance authoritarian goals, and second, those courts often draw upon liberal democratic doctrines in abusive ways. It develops a typology of two different forms of the phenomenon—a weak form where courts uphold authoritarian moves by political actors, and a strong form where they act more directly to remove obstacles to authoritarian programs. Finally, it draws out two main examples: the Venezuelan Supreme Court’s repression of the opposition-held legislature using a doctrine of ‘legislative omission’ and other tools, and the wielding of militant democracy doctrines by the Cambodian and Thai apex courts to ban parties for authoritarian ends.
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Pub Date : 2021-06-24DOI: 10.1093/oso/9780192893765.003.0006
Rosalind Dixon, David Landau
This chapter explores the abusive borrowing of ideas related to constituent power—the concept that all power ultimately stems from the people, and which thus reserves power to the people to replace their constitution, while limiting the ability of ‘constituted’ institutions to make fundamental changes. It shows how constituent power theory has been abused to legitimate anti-democratic Constituent Assemblies, including twice in recent years in Venezuela. It also demonstrates how the unconstitutional constitutional amendment doctrine has been wielded throughout Latin America to eradicate presidential term limits, on the argument that they are infringements of the human rights of both voters and elected officials. Finally, it explores the anti-democratic use of international law doctrines related to constituent power: the abuse of ‘unconstitutional government’ norms to justify a military coup in Fiji, and the wielding of the European Union’s constitutional identity doctrines for illiberal or anti-democratic ends in Hungary and Poland.
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Pub Date : 2021-06-24DOI: 10.1093/oso/9780192893765.003.0003
Rosalind Dixon, David E. Landau
This chapter elaborates the book’s concept of abusive constitutional borrowing, which is defined as the use of designs, doctrines, and concepts associated with liberal democratic constitutionalism for anti-democratic ends. All forms of abusive borrowing decouple the form of a norm from its substance, but in different ways. The chapter develops a typology of four subtypes of abusive borrowing—(1) sham borrowing, which takes the form of a norm without its substance; (2) selective borrowing, where borrowers use only part of a norm or package of norms; (3) acontextual borrowing, where a norm is intentionally transplanted into a context with different background conditions; and (4) anti-purposive borrowing, where an anti-democratic norm is repurposed to achieve the opposite of its intended purpose. Changes in the form and substance of norms are common with all borrowing, but the hallmark of abusive borrowing is that it undertakes these mutations to maximize anti-democratic impact.
{"title":"The Concept and Scope of Abusive Constitutional Borrowing","authors":"Rosalind Dixon, David E. Landau","doi":"10.1093/oso/9780192893765.003.0003","DOIUrl":"https://doi.org/10.1093/oso/9780192893765.003.0003","url":null,"abstract":"This chapter elaborates the book’s concept of abusive constitutional borrowing, which is defined as the use of designs, doctrines, and concepts associated with liberal democratic constitutionalism for anti-democratic ends. All forms of abusive borrowing decouple the form of a norm from its substance, but in different ways. The chapter develops a typology of four subtypes of abusive borrowing—(1) sham borrowing, which takes the form of a norm without its substance; (2) selective borrowing, where borrowers use only part of a norm or package of norms; (3) acontextual borrowing, where a norm is intentionally transplanted into a context with different background conditions; and (4) anti-purposive borrowing, where an anti-democratic norm is repurposed to achieve the opposite of its intended purpose. Changes in the form and substance of norms are common with all borrowing, but the hallmark of abusive borrowing is that it undertakes these mutations to maximize anti-democratic impact.","PeriodicalId":111680,"journal":{"name":"Abusive Constitutional Borrowing","volume":"15 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-06-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129508460","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-06-24DOI: 10.1093/oso/9780192893765.003.0002
Rosalind Dixon, David E. Landau
This chapter defines abusive constitutional change as an intentional attack on the democratic minimum core, or a minimalist, electorally focused definition of democracy familiar from recent work in law and political science. The advantage of using a yardstick for abuse that is a relatively thin, electoral version of democracy is that it avoids engaging more contestable commitments and thus enjoys a higher degree of global consensus. The chapter also distinguishes democracy from liberalism and explores the complex relationship between the two concepts. There is a theoretical tension between democracy and liberalism, although recent experience has suggested a strong tendency for them to erode together. Finally, the chapter explains the main forms of abusive constitutional change—formal constitutional amendment and replacement, sub-constitutional change through the passage of new legislation, and informal methods of change such as judicial reinterpretation. Most recent experiences with democratic erosion rely on a broad mix of these methods.
{"title":"Democracy and Abusive Constitutional Change","authors":"Rosalind Dixon, David E. Landau","doi":"10.1093/oso/9780192893765.003.0002","DOIUrl":"https://doi.org/10.1093/oso/9780192893765.003.0002","url":null,"abstract":"This chapter defines abusive constitutional change as an intentional attack on the democratic minimum core, or a minimalist, electorally focused definition of democracy familiar from recent work in law and political science. The advantage of using a yardstick for abuse that is a relatively thin, electoral version of democracy is that it avoids engaging more contestable commitments and thus enjoys a higher degree of global consensus. The chapter also distinguishes democracy from liberalism and explores the complex relationship between the two concepts. There is a theoretical tension between democracy and liberalism, although recent experience has suggested a strong tendency for them to erode together. Finally, the chapter explains the main forms of abusive constitutional change—formal constitutional amendment and replacement, sub-constitutional change through the passage of new legislation, and informal methods of change such as judicial reinterpretation. Most recent experiences with democratic erosion rely on a broad mix of these methods.","PeriodicalId":111680,"journal":{"name":"Abusive Constitutional Borrowing","volume":"11 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-06-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130618755","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-06-24DOI: 10.1093/oso/9780192893765.003.0007
Rosalind Dixon, David E. Landau
This chapter explores the abusive borrowing of an important set of concepts associated with political constitutionalism, or the idea that political institutions such as legislatures, rather than courts, should be chiefly charged with interpreting and enforcing the constitution. It shows how regimes in Hungary and Poland have relied heavily (and erroneously) on these theories to justify attacks on their judiciaries without seeking to develop the set of political and social preconditions which would be necessary for political forms of constitutional interpretation to make sense. It also shows how allies of Prime Minister Benjamin Netanyahu, in Israel, have (so far unsuccessfully) attempted to import the ‘weak-form’, dialogic, or New Commonwealth model of judicial review instantiated in Canada, which allows for a legislative override, in a context where the chief goal was immunizing the Prime Minister from ongoing criminal prosecution.
{"title":"The Abusive Borrowing of Political Constitutionalism and Weak-Form Judicial Review","authors":"Rosalind Dixon, David E. Landau","doi":"10.1093/oso/9780192893765.003.0007","DOIUrl":"https://doi.org/10.1093/oso/9780192893765.003.0007","url":null,"abstract":"This chapter explores the abusive borrowing of an important set of concepts associated with political constitutionalism, or the idea that political institutions such as legislatures, rather than courts, should be chiefly charged with interpreting and enforcing the constitution. It shows how regimes in Hungary and Poland have relied heavily (and erroneously) on these theories to justify attacks on their judiciaries without seeking to develop the set of political and social preconditions which would be necessary for political forms of constitutional interpretation to make sense. It also shows how allies of Prime Minister Benjamin Netanyahu, in Israel, have (so far unsuccessfully) attempted to import the ‘weak-form’, dialogic, or New Commonwealth model of judicial review instantiated in Canada, which allows for a legislative override, in a context where the chief goal was immunizing the Prime Minister from ongoing criminal prosecution.","PeriodicalId":111680,"journal":{"name":"Abusive Constitutional Borrowing","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-06-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123881593","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-06-24DOI: 10.1093/oso/9780192893765.003.0004
Rosalind Dixon, David E. Landau
This chapter shows how constitutional rights, which have become a nearly universal hallmark of liberal democratic constitutionalism, can be abused for anti-democratic ends. It offers a series of examples, running across different forms of rights and contexts. It shows how hate speech and ‘memory’ laws have been abused in Rwanda, Poland, and Russia, how voting rights were turned to authoritarian ends in Hungary and Fiji, how gender quotas advanced anti-democratic agendas in Rwanda, and how a sham commitment to environmental rights helped to shore up support for an authoritarian agenda in Ecuador. Examples of the abuse of constitutional rights in fact show up in many other chapters of this book, reflecting the centrality of modern rights discourse to liberal democracy.
{"title":"The Abuse of Constitutional Rights","authors":"Rosalind Dixon, David E. Landau","doi":"10.1093/oso/9780192893765.003.0004","DOIUrl":"https://doi.org/10.1093/oso/9780192893765.003.0004","url":null,"abstract":"This chapter shows how constitutional rights, which have become a nearly universal hallmark of liberal democratic constitutionalism, can be abused for anti-democratic ends. It offers a series of examples, running across different forms of rights and contexts. It shows how hate speech and ‘memory’ laws have been abused in Rwanda, Poland, and Russia, how voting rights were turned to authoritarian ends in Hungary and Fiji, how gender quotas advanced anti-democratic agendas in Rwanda, and how a sham commitment to environmental rights helped to shore up support for an authoritarian agenda in Ecuador. Examples of the abuse of constitutional rights in fact show up in many other chapters of this book, reflecting the centrality of modern rights discourse to liberal democracy.","PeriodicalId":111680,"journal":{"name":"Abusive Constitutional Borrowing","volume":"25 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-06-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123836398","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-06-24DOI: 10.1093/oso/9780192893765.003.0008
Rosalind Dixon, David E. Landau
This chapter concludes by offering thoughts on how policymakers and scholars might design better responses to combat abusive constitutional borrowing, or the repurposing of liberal democratic designs, doctrines, and concepts for anti-democratic ends. It suggests a set of ways in which international and transnational monitoring might be made more sophisticated in recognizing and responding to the problem. It also highlights how liberal democratic theorists and practitioners might seek to design and promulgate norms that are more robust against the sometimes substantial threat of abuse. Finally, it concludes by considering how the pervasiveness of mimicry—the use of liberal democratic forms for anti-democratic goals—informs debates about liberal democratic constitutionalism and democratic erosion. It suggests that a more open contestation about the content of liberal democratic norms, bounded mainly by respect for the democratic minimum core, may be the best antidote against the threat posed by abusive constitutional borrowing.
{"title":"Can Abusive Borrowing Be Stopped?","authors":"Rosalind Dixon, David E. Landau","doi":"10.1093/oso/9780192893765.003.0008","DOIUrl":"https://doi.org/10.1093/oso/9780192893765.003.0008","url":null,"abstract":"This chapter concludes by offering thoughts on how policymakers and scholars might design better responses to combat abusive constitutional borrowing, or the repurposing of liberal democratic designs, doctrines, and concepts for anti-democratic ends. It suggests a set of ways in which international and transnational monitoring might be made more sophisticated in recognizing and responding to the problem. It also highlights how liberal democratic theorists and practitioners might seek to design and promulgate norms that are more robust against the sometimes substantial threat of abuse. Finally, it concludes by considering how the pervasiveness of mimicry—the use of liberal democratic forms for anti-democratic goals—informs debates about liberal democratic constitutionalism and democratic erosion. It suggests that a more open contestation about the content of liberal democratic norms, bounded mainly by respect for the democratic minimum core, may be the best antidote against the threat posed by abusive constitutional borrowing.","PeriodicalId":111680,"journal":{"name":"Abusive Constitutional Borrowing","volume":"294 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-06-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132425160","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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