Posts in category: MONITOR

Professor Tom Ginsburg warns against the simplistic notion that a “strongman” can solve complex political and social problems, arguing that such leaders often weaken democratic institutions by eroding trust. He discusses how authoritarian regimes manipulate international law to shield themselves from scrutiny. Despite these trends, Ginsburg remains cautiously optimistic, believing that well-established democracies can endure with vigilance and strong institutions. However, he emphasizes the need for constant global cooperation to prevent the further erosion of democratic norms and institutions.

Interview by Selcuk Gultasli

In an insightful interview with the European Center for Populism Studies (ECPS), Dr. Tom Ginsburg, Leo Spitz Professor of International Law at the University of Chicago, discusses global democratic backsliding and the rise of authoritarianism. He cautions against the simplistic notion that a “strongman” can solve complex political and social issues, emphasizing that such leaders often undermine democratic institutions and erode public trust, ultimately weakening nations rather than strengthening them. Ginsburg highlights the importance of safeguarding democracy and the critical role of strong institutions.

Professor Ginsburg underscores the importance of institutions in preserving democracy, noting that while democracies may experience backsliding, complete breakdowns are rare. He also warns of the manipulation of international law by authoritarian regimes to entrench power and diminish democratic principles. Reflecting on historical examples, Professor Ginsburg points out that many authoritarian regimes, during their first term, often present themselves as relatively moderate, only to erode institutions more effectively once they learn how to wield power. He notes that although democracies, especially established ones like the United States and France, are resilient and unlikely to break down completely, they are vulnerable to backsliding, particularly when polarization intensifies. When political opponents are seen as existential threats, the foundations of democracy can weaken.

In discussing the impact of rising authoritarianism on international law, Ginsburg highlights how authoritarian regimes are increasingly manipulating international institutions to protect themselves from scrutiny and criticism. He warns that authoritarian regimes are using international law strategically to legitimize their rule and repress opposition through tactics like exploiting vague terms such as “extremism” or “separatism.” He also mentions how some authoritarian governments have hijacked institutions like Interpol to target political opponents under the guise of legal protocols.

Despite these troubling trends, Professor Ginsburg remains cautiously optimistic about democracy’s survival in well-established systems. While authoritarianism poses serious challenges, he believes that, with vigilance, democracies will continue to endure and that the resilience of their institutions can help them weather periods of backsliding. Nonetheless, he calls for constant awareness and global cooperation to prevent the further degradation of democratic norms and international institutions.

Here is the transcription of the interview with Professor Tom Ginsburg with some edits.

Rising Polarization Is a Major Cause of Democratic Backsliding

Professor Ginsburg, thank you so very much for joining our interview series.

Professor Tom Ginsburg: It’s my pleasure to be here. I think the work you’re doing is important.

Thank you. Let me start with the first question. You argue that there is a strong possibility that the twenty-first century will be known more as an authoritarian century than a democratic one. What are the reasons for this assumption and what impact rising authoritarianism will have on international law? Additionally, what do you think are the primary factors contributing to the global trend of democratic backsliding and constitutional erosion, and how do you see it impacting the future of global constitutionalism?

Professor Tom Ginsburg: Well, that’s quite a lot of questions! Let me start by saying that over the last three decades, wehave tended to think of democracy as something that naturally emerged through modernization theory. We haveacknowledged that throughout most of human history, governments have been undemocratic and authoritarian. But after the Cold War, it seemed like democracy was on the rise—what Samuel Huntington called the ‘Third Wave of Democratization.’

At the time, democracy appeared to be the only game in town, as people used to say. However, from where we stand now, that seems not only like a naive assumption but also quite mistaken. Democracies now seem more like a historical blip in some sense, as the world appears to be reverting to its more common state of violent conflict and authoritarianism.

Now, I would disagree with the simplicity of that assumption. I still believe that the richest, most powerful, and successful countries—those that deliver public goods to their citizens—are grounded in the will of the people. While there are a few high-performing non-democracies or limited democracies, like Singapore, which would be an excellent place to be born, these are exceptions. In such cases, there exists a kind of responsive authoritarianism.

However, in general, if you had the choice, you would want to be born in a democracy. Despite all their flaws and challenges, democracies allow us to express disappointment in our leaders, which can create a sense of existential crisis. Yet, when we look at most performance indicators, democracies still excel. Sometimes there’s a naive belief that we just need a dictator to “make the trains run on time.” But for every Singapore, there’s a Cambodia in 1975 or something equally disastrous. For every high-performing authoritarian regime, there are plenty of terrible ones. The search for a “strongman” to fix everything is almost always a naive solution, and this ties into your question about populism. The desire for a strongman rarely leads to the outcomes people hope for.

Take Tunisia, for example. It now has a weak strongman—who, ironically, was a constitutional lawyer—who took power following widespread disappointment with the democracy’s economic performance. But the result is stagnation, and people are not better off. So, overall, I support democracy and believe it will persist in countries where it is well-established. However, it is fraying, and there’s a sense of existential concern.

You also asked about the causes of democratic backsliding. There are many factors to consider, but one major cause is rising polarization. When political opponents are seen not just as people with differing opinions but as existential threats, it escalates democratic competition, eroding the institutions necessary to make democracy work. Polarization is a significant factor, fueled in part by social media, which places people into ideological bubbles.

In the United States, for example, I’m encouraged that the public seems less polarized than its leaders. Many areas of policy actually enjoy broad agreement among citizens. So, I’m not one of the more alarmist analysts who predict civil war in the US—that’s not going to happen. Most of us have family or friends on the other side of the political spectrum and we’re not going to kill each other over Donald Trump or something similar.

Finally, you asked about the impact of rising authoritarianism on international law. Indeed, this is changing rapidly before our eyes. A few years ago, I wrote about Authoritarian International Law and published a book called Democracies in International Law. In it, I pointed out that democracies and authoritarians use international law differently. Europe, for example, has built the European Union on an international legal framework that has provided public goods and fostered cross-border cooperation, including the commitment to human rights. Authoritarians, on the other hand, are less interested in these principles because they don’t trust each other and struggle with deep cooperation.

What we see in international law today is a pattern where democracies innovate—through mechanisms like transparency laws, citizens’ assemblies and administrative reforms—while authoritarians copy these innovations and repurpose them for their own ends. This repurposing is happening in international law too. Authoritarian regimes have taken over bodies like the Human Rights Council, where their main goal is to avoid criticism of themselves. Similarly, the General Assembly now has a majority of authoritarian states and this shift degrades some of the highest ideals of international law.

We also see double-speak, like Russia’s claim that its invasion of Ukraine is a defense against genocide by the Ukrainians. These kinds of manipulations are meant to confuse citizens and degrade the potential for genuine international cooperation.

I know I’ve answered many questions quickly, but I hope this provides a useful overview.

Indeed, Professor Ginsburg, thank you. In your article “The Value of ‘Tyrannophobia’,” you mention the blurred distinction between democratic backsliding and breakdown. How important is it for scholars and policymakers to clearly differentiate between the two and what criteria should be used to make this distinction effectively?

Professor Tom Ginsburg: That’s a great question. I think even talking now in 2024 compared to six years ago, our perspective has to shift somewhat. Democratic backsliding, as it turns out, is fairly common. Many democracies experience degradation in the quality of their institutions and their self-perception. However, a full democratic breakdown—meaning the end of democracy—is actually quite rare for countries like yours and mine, those that are wealthy and have long democratic histories.

Adam Przeworski, the great scholar at NYU, calculated that the probability of a wealthy country with a strong democratic history, like the United States, seeing its democracy end is infinitesimally small. And I think he’s right. Democracies like the US and France will persist; the electoral mechanisms will continue to function and the basic components of the rule of law will remain, even if they become degraded. However, the quality of democracy can decline and we may experience what is known as subnational authoritarianism in federal systems like the US.

We have seen this before. Between the end of the Civil War and the Civil Rights Act of 1964 and the Voting Rights Act of 1965, the entire southern United States was not a democracy because Black citizens were disenfranchised by various legal mechanisms. So, while the US as a whole may have been a democracy, significant regions within it were not. This kind of subnational authoritarianism could happen again because states are very powerful in our system.

But as for a full breakdown? When we look at history, democracies typically break down due to war, revolution or military coups. I don’t see any of those happening in the US or in countries like France. There are certainly revolutionaries, but they don’t have a social base and military coups are extremely unlikely in countries like ours. Civil-military relations are well-controlled here. Even with all the discussion about figures like Donald Trump, I don’t see any scenario where he or anyone else would order the military to stop an election.

In short, the oldest and strongest democracies are certainly subject to backsliding, but I don’t believe they are at serious risk of breakdown.

European Union Failed to Develop a Demos

In your article ‘How Authoritarians Use International Law,’ you underline that democracies have produced the grandest legal achievements including the European integration and the development of the global trade regime. You clearly see European Union as a great success. How do you explain the rise of far-right parties and their recent successes in elections in the founding members of EU like France, Italy and the Netherlands?

Professor Tom Ginsburg: That’s a great question. By the way, I happened to be living in Europe when the euro was introduced in 2000. It was fascinating because, for most ordinary people, there wasn’t much public discussion about it. I was living in the Netherlands and I found that many ordinary folks didn’t like the euro; it led to inflation and there was a sense of resentment because the decision seemed to have been made by the government without much public input.

A lot of people talk about the failure of Europe to develop a demos—a true sense of a continent-wide polity. The project, in some ways, felt technocratic and elitist. I think that’s right. It doesn’t work to have someone like Valéry Giscard d’Estaing pronounce a constitution from on high; people rejected that and rightly so. It lacked the social base necessary to sustain it.

At the same time, economically, the EU has been massively successful. It is a major global regulatory power and it has made people wealthier than they would have been otherwise. But politically, it hasn’t quite gained the legitimacy it needs. The nation-state, the idea that it would fade away, was naive. I remember reading scholars like Anne-Marie Slaughter in the late 1990s and early 2000s who celebrated the European project and thought it would lead to an ever-closer union, as if it were an unstoppable machine. I was skeptical, especially because I study East Asia, where national consciousness is still very strong. There’s no sense that China or Japan, for example, would ever give up their national identities.

Even in Europe, I was somewhat skeptical. When I visited, I noticed a lack of a European identity—people still identified as Italians, French or Dutch. No one, aside from EU bureaucrats in Brussels, introduced themselves as European.

So, what does that mean? The nationalist backlash we’re seeing is healthy and we need to admit that. It’s not some kind of pathology; it reflects real feelings in society. This is important when studying populism. We shouldn’t view populism as a disease to be cured. It’s a natural political development, particularly when elites are out of touch. That’s why we’re seeing the rise of far-right parties across Europe.

The key thing is not that populist parties are running for office. In fact, in the United States, there’s a long tradition of running as a populist—every politician runs against Washington, DC. George W. Bush did it, Barack Obama did it and of course, Trump did as well. But running as a populist is different from governing as a populist. Once in office, you can’t govern like a populist.

Take Italy, for example. Giorgia Meloni leads a far-right party and she ran as a populist. But from what I see, while she pursues some far-right policies, she isn’t governing as a populist in the sense of trying to dismantle the institutional structure of the country. In fact, Italy’s institutional structure constrains her, as it has constrained every post-war leader. Italy’s constitutional order has many pathologies, and it will constrain her too.

So, the key point here is that we need to distinguish between running as a populist, which is healthy and governing as a populist, which can degrade democratic institutions.

In my book with Aziz Z. Huq, How to Save a Constitutional Democracy (2018), we talk about the forces leading to democratic backsliding. One of those forces is what we call partisan degradation, but the key one relevant to this discussion is charismatic populism. Donald Trump embodies this—the idea that “I alone can fix everything” and that anyone or any institution that stands between me and the people must be eliminated. That kind of rhetoric can lead to actions that destroy institutions and the fact is, for constitutional democracy to succeed, you need strong institutions.

That’s why I’m against governing as a populist.

Authoritarian Constitutional Systems Are Incredibly Diverse

The concept of ‘authoritarian constitutionalism’ has gained traction in the academic literature, describing regimes that use constitutional tools to consolidate power. How do you distinguish between genuine constitutionalism and its authoritarian use and what role do international and domestic actors play in challenging or supporting these regimes?

Professor Tom Ginsburg: Hmm! That’s an interesting question. First of all, I think the term authoritarian constitutionalism is valid. It can represent a genuine form of constitutionalism. For instance, Britain, until the Reform Act of 1832, had a constitutional system, albeit a non-democratic one. So, we shouldn’t assume that constitutionalism only applies to liberal democracies. Just because a system isn’t a liberal constitutional democracy—which is itself a rare phenomenon—doesn’t mean there isn’t constitutionalism. Power can still be constrained in meaningful ways.

Take Thailand, for example. It’s not a strong democracy—certainly not at the moment, with political parties being banned and other such measures. Yet, the military-backed leader stepped down after eight years, as required by the Constitution. This means the text constrained the power holder, which is a form of constitutionalism, even though it’s not liberal constitutionalism. So, I tend to think of authoritarian constitutionalism as a broader category where power is constrained, even in non-democratic settings.

Mark Tushnet wrote about authoritarian constitutionalism, using Singapore as a case. But I wasn’t entirely convinced by that example. What he meant was a regime that is still authoritarian but not too bad. However, true constitutionalism requires a deeper examination of the actual mechanisms in place—such as the role of constraining institutions. It’s fascinating to study because there are so many variations. The famous Tolstoy quote comes to mind: “Every happy family is alike; each unhappy family is unhappy in its own way.” Similarly, authoritarian constitutional systems are incredibly diverse—perhaps even more so than constitutional democracies.

Now, when it comes to the role of the international community, I hold a fairly thin view of international law. I don’t believe there’s a right to democracy under international law. States are required to observe basic human rights, but there’s no legal obligation for them to be democratic. It would be problematic if international law insisted on democracy, as it would render many members of the international community illegitimate. Historically, the majority of governments have not been democratic.

What can international law do, then? There are examples of international efforts to keep backsliding democracies from completely derailing or to hold authoritarian regimes accountable to some degree. One example is Poland under the Law and Justice Party (PiS). Since they took power, they’ve engaged in institutional takeovers, especially of the courts, which created friction with European law. The EU has mechanisms like Article 7 and Article 2 processes, and while they didn’t stop the PiS from consolidating power, they helped prevent things from going too far off the rails. Being part of the EU gave the Polish opposition space to organize, and they eventually won the recent election. PiS may return to power, but the point is that democracy didn’t completely collapse in Poland.

Hungary is a different story. Of course, we don’t really know for sure, but the playing field there seems extremely tilted and it’s plausible that Viktor Orbán may remain in power for the rest of his life. Fortunately, it seems the European Union has become more aware of the situation. However, you also see examples in Latin America and Africa where courts play a role on the margins. While they may not save democracy entirely, they help keep space open for opposition to organize and prevent the worst outcomes, stopping the country from devolving into one of the truly oppressive dictatorships wehave seen too many times throughout history.

Constant Vigilance Needed to Prevent Authoritarian Hijacking of International Legal Institutions

In your article “How Authoritarians Use International Law,” you discuss how authoritarian regimes are increasingly using international law to legitimize their rule and shield themselves from criticism. How effective has this strategy been in reshaping international norms and what can democratic states do to counter this manipulation?

Professor Tom Ginsburg: I do think we are seeing the manipulation of international law. One clear example is explicitly authoritarian cooperation, like in the Shanghai Cooperation Organization (SCO) or the Eurasian institutions that Vladimir Putin set up as counterweights to the European Union.

One of the key tactics these organizations use is cooperation on internal security issues. In my article, I mention the creation of new international norms, such as labeling crimes like extremism and separatism. These terms have been defined by authoritarian regimes in a way that can criminalize anything from advocating for LGBT rights to seeking greater autonomy for regions like Tibet. These are now international norms in those regions, with enforcement mechanisms. If I, as a government, label you an extremist or separatist, other countries in the group are obligated to arrest and extradite you. These terms are vague, but they have real teeth and are being used to reinforce domestic dictatorships while binding them more closely in their shared projects.

Another concern is the degradation of human rights norms, such as the rise of concepts like human rights with Chinese characteristics. I previously mentioned the Human Rights Council and the kinds of cases they focus on. A while back, there was a proposal before the Human Rights Council for a norm against the defamation of religion. Traditionally, defamation is an individual-level crime—if you say something false about me, I can seek legal recourse. But this proposal aimed to extend defamation protections to religions themselves. The driving force behind this was the desire to prevent the denigration of Islam, though it included other religions as well. This is inconsistent with democratic norms of free speech.

Suddenly, the focus of human rights shifts from humans to religions. That’s a profound shift—what does it even mean? Who speaks for the religion? These are subtle but significant changes in international law that deserve close scrutiny.

Another example is the abuse of institutions like Interpol. Authoritarian regimes have been using Interpol’s red notices to target political opponents who haven’t committed any real crimes, forcing them to be arrested internationally under the guise of legal protocol. This is a clear abuse of international systems and it shows just how important it is to pay attention to who controls institutions like Interpol. The Chinese government, for instance, had made significant inroads into influencing Interpo and Western powers were somewhat asleep at the wheel. Fortunately, they have started to wake up to the risk of such institutions becoming politicized and used for authoritarian purposes.

This is why it requires constant vigilance, advocacy, and awareness from democratic states. We need to ensure that international legal institutions are not hijacked by authoritarian regimes for their own ends.

Democracy Will Endure Under Another Trump Administration

How could a possible Trump victory on November the 5th impact American democracy? There are those who are very concerned and there are those who argue that American democracy will survive another Trump administration. Where do you stand at this debate?

Professor Tom Ginsburg: I have two views on this. First, we in the United States tend to not look much at the rest of the world—we’re quite inward-looking and sometimes a bit arrogant in that sense. But if we did pay attention to global experiences, we’d have reasons to be very concerned.

If you look at other countries where democracy has been eroded, many leaders had a first term that wasn’t so bad. Some people say, “We survived Trump once; it’s no problem, the institutions held.” But look at examples like Viktor Orbán in Hungary. His first term was relatively moderate—he governed as a reasonable nationalist. Jarosław Kaczyński in Poland didn’t show clear signs of trying to dismantle the country’s institutions initially. Even Narendra Modi’s BJP had a more normal first term in government under Atal Bihari Vajpayee.

The pattern is that during their second time in power, these leaders learn how to use the machinery of government more effectively to consolidate power and undermine institutions. So from that perspective, I think we should be very worried about a second Trump administration.

But here we have to think about who this character is and what his motivations are. The Supreme Court has been very helpful to Trump. They have given him a very expansive notion of immunity and they allowed him to remain on the ballot despite some efforts by certain states to remove him. They’re not going to be much of a constraint on him.

Now, what exactly is he threatening to do? I think it’s clear he’s going to use the justice system to go after his political opponents. He’s said he will, so we might as well believe him. The key question then becomes: is the justice system capable of withstanding that kind of politicization? In the end, I think it is, but I certainly wouldn’t want to be one of his political opponents.

The way it works here is that Trump can direct national prosecutors. While they have norms of independence, those are just norms. He can tell them, “I want you to prosecute Biden, or I’ll fire you,” and if they refuse, they get fired and someone else is appointed who is willing to do it. I think that’s likely to happen. The question is, will it work? It will definitely cost those prosecuted a lot of money and cause harassment and it will degrade public confidence in the legal system. It’s a terrible situation.

But at the end of the day, in this country, you need judges and a jury to secure a conviction. I don’t see fake charges getting very far. Yes, Trump has appointed a lot of judges, but so has Biden. Biden has been very quick in appointing judges and right now, about half of the appeals court judges are appointed by Democrats and half by Republicans. The lower courts lean more towards Democratic appointees. So, judges are not partisan to the point where they will just do whatever Trump says.

I also don’t expect him to try to stay in power after another four years. He’s old, and he might want his children to run for office. If he tries to stay on, that would ruin their chances, so I don’t see that being part of his motivation.

So, what are my biggest fears? My biggest concerns are policy-related, particularly around immigration. It’s going to be very, very ugly. They have promised to establish large detention camps for immigrants and round people up. That will be terrible to witness. While it’s a human rights issue, it’s not necessarily anti-democratic since it’s a popular policy with a segment of the electorate.

I also worry about the administrative state. They may discourage career bureaucrats, especially those working in agencies like the EPA, to the point where they quit, reducing state capacity. That would be very bad for democracy.

But I don’t see democracy itself ending. So, in some sense, I have a mixed answer. I’m certainly not the biggest Trump fan and I do worry about American democratic institutions. I think Trump is bad for them, but I don’t believe he will end them.

That being said, it still requires vigilance. One last point to mention is that we are a federal country, which means most law enforcement is local and state-run. The states are very divided. For example, California has a bigger economy than France and there’s very little Trump could do to change what happens there in any significant way.

So yes, democracy will survive.

State-Level Prosecutions of a President Can Set a Dangerous Precedent

In your recent article ‘Trump is gearing up for lawfare,’ you argue that Trump, if elected, will instrumentalize and politicize the prosecution. In a system of solid check-and-balance, how can Trump possible achieve his goal?

Professor Tom Ginsburg: That’s a great question. I touched on this a bit earlier, but let me go into more detail.

During President Richard Nixon’s time in office, specifically around the Watergate scandal where he was caught spying on his opponents, he sought to control the prosecutors. Nixon fired people until he found someone willing to follow his orders. Eventually, after Nixon resigned, a new Attorney General came in and aimed to restore dignity to the office, putting in place very detailed internal rules before prosecutions could happen at the federal level. These rules became internal norms at the Justice Department, helping to regulate the prosecution process.

Now, a president like Trump has the authority to hire and fire an Attorney General at will. I believe he will appoint someone willing to overrule some of these norms to carry out certain key prosecutions, for example, going after Biden. However, the law itself still constrains what can be done and there are limits. That said, even though a president has the power to appoint a compliant Attorney General, there are checks in place that would make this difficult to pull off effectively on a large scale.

One of my bigger fears, though, is something we’ve already seen on the Democratic side. In New York State, for example, the Attorney General ran for office on a platform that included prosecuting Trump and she did manage to get a judgment against him. Then, there was Alvin Bragg, the New York City District Attorney, who prosecuted Trump on fraud charges and won. Trump is now a convicted criminal, which is unprecedented for someone running for office.

However, I’m not a big fan of that prosecution. If you ask the average American what Trump was prosecuted for, they likely wouldn’t be able to explain it and even many lawyers would find the legal theory behind the case to be a stretch. Technically, yes, it was a violation of the law, but my concern is that state-level prosecutions, especially involving a president or former president, can set a dangerous precedent. Even when presidents commit wrongdoing, I believe they should be subject to a different standard than the average citizen.

This is controversial to say, but I think presidents deserve a bit more leeway because there is another mechanism of accountability—political accountability. The law should not be a substitute for political accountability, and sometimes pursuing legal accountability can undermine it. If the public wants to elect someone who has committed a crime, like Donald Trump, they will. When prosecutions are poorly understood or seem politically motivated, they can damage public trust in the justice system.

I worry about these state-level prosecutions and if Trump’s attempts to prosecute Biden are unsuccessful, you may still see state-level prosecutions being weaponized. That’s not good. It further politicizes the justice system, and in many countries, once this starts, it’s hard to reverse. So, yes, I do worry about this.