Washington International Law Journal

Volume 28 | Number 2

4-1-2019

Breaking the Equilibrium: From Distrust of

Representative Government to an Authoritarian
Executive
Gábor Attila Tóth

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Gábor A. Tóth, Breaking the Equilibrium: From Distrust of Representative Government to an Authoritarian Executive, 28 Wash. L. Rev. 317
(2019).
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BREAKING THE EQUILIBRIUM:

FROM DISTRUST OF REPRESENTATIVE
GOVERNMENT TO AN AUTHORITARIAN EXECUTIVE
Gábor Attila Tóth†
Abstract: Although contemporary populist authoritarians have not entirely
abandoned the aims and methods of their ancestors, authoritarianism has been undergoing
a reinvention in recent years. Behind a façade of constitutionalism, new authoritarianism
claims to abide by democratic principles. Populist authoritarians legitimize themselves
through popular elections and maintain the entire set of formal institutions associated with
constitutional democracy, using them as both an appearance of representation and a tool of
authoritarian imposition.

The article focuses on the concepts of trust and distrust of representative government to
afford a better understanding of populist authoritarianism. The paper describes two rival
theoretical conceptions of government, known as Hobbesian (sovereign government) and
Lockean (limited government). The Hobbesian conception rests on the idea of an effective
and efficient executive that is able to protect the safety of the people and avoid anarchy. In
contrast, the Lockean tradition requires checks and balances in the constitutional design in
order to prevent the rise of a tyrannical executive. In the former conception, trust in the
authority is a substitute for constitutional constraints, whereas in the latter, constitutional
limitations presuppose that public officials and institutions should be distrusted.

The article argues that constitutionalism is better served when the characterizing traits of
the two theories are balanced. A comparison of some of the elements of modern
constitutionalism supports the idea that under certain circumstances, a relatively stable
equilibrium between trustful constitutional cooperation and constitutional mechanisms of
distrust can be achieved. However, the executive may gain unrestrained power when a
constitutional system loses this balance. The article shows how a divergence from
equilibrium can be a marker of populist authoritarianism.

Cite as: Gábor Attila Tóth, Breaking the Equilibrium: From Distrust of Representative
Government to an Authoritarian Executive, 28 WASH. INT’L L.J. 317 (2019).

I. THE RISE OF POPULIST AUTHORITARIANISM

In the twenty-first century, more than half of the countries in the world
are far from what we would consider “normal” constitutional democracies.1

†
Alexander von Humboldt Senior Fellow at Humboldt University in Berlin. Versions of this paper
were presented at the workshops Illiberal Democracy? Poland in Comparative, European Perspective, St.
Antony's College, University of Oxford; Constitutionalism, Dissent, and Resistance, Humboldt University
and Princeton University, Berlin; and Resurgence of Executive Primary in the Age of Populism, Academia
Sinica, Taipei. The author thanks participants in those intensive discussions for insightful comments and
suggestions.
1
See Michael J. Abramowitz, Freedom in the World Report 2018: Democracy in Crisis, FREEDOM
HOUSE, https://freedomhouse.org/report/freedom-world/freedom-world-2018 (last visited Nov. 8, 2018)
(creating categories—rule of law, electoral process, political participation, form of government, fundamental
rights, civil society—evaluated as separate entities. The results are weighted according to the importance of
318 WASHINGTON INTERNATIONAL LAW JOURNAL VOL. 28 NO. 2

Outdated dictatorships still exist and so do war-torn countries or failed states

like Syria or Yemen. Old-fashioned dictatorships can be characterized by a
single-party system or a complete ban on political parties, the use of terror,
censorship, and a strong mobilizing ideology. Such systems, e.g., North
Korea, Saudi Arabia, or, to some extent, China, are exceptional today.

In the majority of autocracies, leaders gain power peacefully and

legitimize themselves through popular elections and referendums. Regular
multiparty elections are held, and elected officials make laws in a legislative
body. Controlling constitutional institutions remain formally in place. Blatant
human rights violations, explicit prohibitions and outright censorship are
relatively rare, as other more subtle techniques are used to effectively entrench
power, dominate and intimidate political opposition and secure victory in
future elections.2 This is the main reason why such antidemocratic systems
are more difficult to discover and identify properly. The pattern repeats itself
worldwide. In contrast with the earlier waves of democratization that spread
across the globe, more recent trends have led to the disintegration of
democracies. Not only Russia (probably the first regime of this kind) and
Turkey, but also Hungary and Poland (two European Union Member States),
and many other countries epitomize this phenomenon. The countries in
question adopt—apparently in a democratic manner—a legal setting that
moves them ever further from, rather than toward, democratic principles.

the different categories; rates are then aggregated; and, finally, the status of the country—free, partly free,
not free—is calculated according to a combined average of the ratings); Bertelsmann Stiftung,
Transformation Index, TRANSFORMATION INDEX BTI, https://www.bti-project.org/en/home/ (last visited
Nov. 8, 2018) (applying a similar methodology in its analysis and evaluation – whether and how developing
countries, and countries in transition, are steering social change toward democracy. As a result of an
aggregated rating process, the countries may receive one of the following statuses: democracy in
consolidation, defective democracy, highly defective democracy, moderate autocracy, or hardline autocracy).
See also Worldwide Governance Indicators Project, WORLD BANK,
http://info.worldbank.org/governance/wgi/#home (last visited Nov. 8, 2018) (reporting on countries for
different dimensions, e.g., rule of law, accountability, and control of corruption. The Cato Institute’s Human
Freedom Index presents the state of human freedom in the world based on a broad measure that encompasses
personal, civil, and economic freedom); The Human Freedom Index, CATO INSTITUTE,
https://www.cato.org/human-freedom-index (last visited Nov. 8, 2018). See, e.g., Dalibor Rohac, Hungary
and Poland Aren’t Democratic. They’re Authoritarian, FOREIGN POLICY (Feb. 5, 2018),
https://foreignpolicy.com/2018/02/05/hungary-and-poland-arent-democratic-theyre-authoritarian/ (showing
a scholarly use of rating indexes) (Rohac argues that Central Europe’s anti-establishment rebels are
increasingly authoritarian, and their geopolitical allegiances are to Moscow, not the West).
2
See Gábor Attila Tóth, Authoritarianism, MAX PLANCK ENCYCLOPEDIA OF COMPARATIVE
CONSTITUTIONAL LAW (Rainer Grote et al. eds. 2017), http://oxcon.ouplaw.com/view/10.1093/law-
mpeccol/law-mpeccol-e205 (last visited Nov. 8, 2018) (the approach of this article is slightly different from
my Authoritarianism). See also Gábor Attila Tóth, Constitutional Markers of Authoritarianism, 11 HAGUE J.
ON RULE L. (forthcoming 2019), https://doi.org/10.1007/s40803-018-0081-6.
April 2019 Breaking the Equilibrium 319

Countries ranging from Azerbaijan to Venezuela demonstrate that when a

populist executive gains concentrated power, a reshaped constitution may
serve autocratic aspirations.3 As the Trump administration in the United States
shows, even a country with a long pedigree of democratic traditions may not
be entirely immune to the creep of authoritarian ideas and practices. Thus,
anti-democratic tendencies affect not only the periphery of democracy,
usually considered more vulnerable, but also the countries traditionally
regarded as its core.

The rise of authoritarianism has of course attracted considerable

academic attention. The literature is vast, appearing across many disciplines
from political science to comparative constitutional law. Beyond countless
journal articles we mainly find edited volumes from constitutional, political
science, or multidisciplinary perspectives.4 Political theorists and scholars of
the history of political thought have produced important monographs.5 Apart
from crucial collected volumes, 6 constitutional scholarship is engaged in
country analyses, typically from a comparative perspective.7

Scholars warn that the twenty-first century could become a century of

authoritarianism as a result of the institutional erosion of democracy.8 There
seems to be a consensus that, while the new regimes differ in some respects,
they share key characteristics with their predecessors: aversion to principles
of constitutional democracy, intolerance toward vulnerable minorities, and a
flourishing oligarchy around the head of the regime.9 The new competitor to
constitutional democracy has begun to take shape as self-proclaimed
majoritarian in political form, nationalist in ideology, and capitalist in
3
David Landau, Populist Constitutions, 85 U. CHI. L. REV. 521 (2018) (explaining how recent
populist autocrats have either replaced existing constitutions entirely or adopted sweeping packages of
amendments).
4
See, e.g., Tom Ginsburg & Alberto Simpser, Constitutions in Authoritarian Regimes 1–20 (U. of
Chicago, Public L. Working Paper No. 468, 2014); STEVEN LEVITSKY & LUCAN A. WAY, COMPETITIVE
AUTHORITARIANISM: HYBRID REGIMES AFTER THE COLD WAR (2010); WOLFGANG MERKEL, HANS-JÜRGEN
PUHLE ET AL., DEFEKTE DEMOKRATIEN. BAND I: THEORIE (2003).
5
See, e.g., MARINA OTTAWAY, DEMOCRACY CHALLENGED: THE RISE OF SEMI-AUTHORITARIANISM
(2003); ANDREAS SCHEDLER, THE POLITICS OF UNCERTAINTY: SUSTAINING AND SUBVERTING ELECTORAL
AUTHORITARIANISM (Laurence Whitehead ed. 2013); YASCHA MOUNK, THE PEOPLE VS. DEMOCRACY: WHY
OUR FREEDOM IS IN DANGER AND HOW TO SAVE IT (2018).
6
See, e.g., MARK A. GRABER ET AL., CONSTITUTIONAL DEMOCRACY IN CRISIS? (2018); CASS R.
SUNSTEIN, CAN IT HAPPEN HERE? AUTHORITARIANISM IN AMERICA (2018).
7
See, e.g., WOJCIECH SADURSKI, POLAND'S CONSTITUTIONAL BREAKDOWN: FREEFALL 2015-2018
(2019); ANDREI P. TSYGANKOV, THE STRONG STATE IN RUSSIA: DEVELOPMENT AND CRISIS (2014); ANDRÁS
L. PAP, DEMOCRATIC DECLINE IN HUNGARY: LAW AND SOCIETY IN AN ILLIBERAL DEMOCRACY (2018).
8
AUTHORITARIANISM GOES GLOBAL: THE CHALLENGE TO DEMOCRACY (Larry Diamond et al. eds.,
2016).
9
See infra notes 12–14.
320 WASHINGTON INTERNATIONAL LAW JOURNAL VOL. 28 NO. 2

economics (though the case of Venezuela shows that it can be socialist).

Moreover, the ideas and practices of the emerging regimes in question are far
from independent of each other, as demonstrated by the extensive use of
phrases like “nationalist international” and “autocratic international.” Apart
from the scholarly consensus on some characteristics, we may distinguish two
widespread and influential approaches.

The first approach places great emphasis on historical analogies. It

claims that the current erosion of constitutionalism can be better understood
if the transformation is compared to the interwar period and the rise of fascism
in Europe and beyond. Among defining features, we can find political
polarization in constitutional matters, xenophobic nationalism as a means of
mobilizing ideology, rejection of international cooperation, restrictive
immigration policies, stigmatized “enemies of the people,” and arbitrary use
of emergency powers. 10 The philosopher Jason Stanley points out the
similarities among ultranationalist autocratic regimes by giving extensive
examples of how they use for their purposes, among others, mythical past,
fears, corruption, and economic inequality.11 The former U.S. Secretary of
State, Madeleine Albright, suggests that we should examine the careers of
Hitler and Mussolini if we want to understand Chávez, Erdogan, Orbán, and
Putin.12 Timothy Snyder’s work goes further, offering new insights into the
historical roots of today’s autocracies.13

The objective of the second approach, in contrast, is to highlight the

original quality of the transformation. Its main argument is that contemporary
autocrats use the very constitutional institutions of democracy to transform it
into a kind of despotism. What is happening today is the self-destruction of
liberal democracy through democratic procedures and the rule of law. In this
way, the second approach underscores the significant difference between the
interwar democratic decline and the current transformation. One good
example of this approach is a book by Steven Levitsky and Daniel Ziblatt.14
Although they offer many lessons from modern history that reveal the
“rhymes of history,” the authors argue that democracy is dying in an

10
Notably, the Jacobins used at the outset the phrase “enemy of the people” against anybody who
opposed them and codified crimes punishable by death. In the twentieth century, both the Bolsheviks and the
Nazis returned to the term serving as a label meaning death.
11
JASON STANLEY, HOW FASCISM WORKS: THE POLITICS OF US AND THEM (2018).
12
MADELEINE ALBRIGHT, FASCISM: A WARNING (2018).
13
TIMOTHY SNYDER, THE ROAD TO UNFREEDOM: RUSSIA, EUROPE, AMERICA (2018).
14
STEVEN LEVITSKY & DANIEL ZIBLATT, HOW DEMOCRACIES DIE (2018).
April 2019 Breaking the Equilibrium 321

unprecedented way: peacefully, slowly, legally. 15 Kim Lane Scheppele’s

works belong to the best constitutional accounts of the approach that seeks
original features. She labels it “autocratic legalism,” when electoral mandates
combined with legal change push through an illiberal agenda. 16 In her
account, the new system is illiberal, anti-constitutionalist, and autocratic, but
meets the criteria of legality and democracy at least in a formal way. 17
Scheppele has dubbed this phenomenon the “Frankenstate,” in which
legalistic autocrats selectively choose and stitch together the worst practices
from liberal democracies to create something illiberal and monstrous.18 We
may add that this approach shows—in quasi-Hegelian terms—how
accumulated quantitative changes can lead to a qualitative change.19

Each approach has its outstanding merits. I think, however, that it

would be a grave error to simply treat contemporary authoritarianism as a
revival of twentieth century autocracies. Clearly, we should learn from the
lessons of history and understand the roots of new authoritarianism. Several
cases demonstrate that contemporary populist authoritarians have not entirely
abandoned the aims and methods of their ancestors. Yet, authoritarianism has
reinvented itself in recent years. Its most salient new feature is that, behind a
façade of constitutionalism, it claims to abide by democratic principles.

The second approach, while contributing to the understanding of

legalistic techniques used by autocrats, still does not seem fully satisfactory
either. It has its shortcomings: it emphasizes the similarities between
constitutional democracies and modern autocracies in their democratic roots
or legal institutions, while underplaying their fundamental differences. Nor
does this approach distinguish between unavoidably imperfect institutions of
constitutional democracies and eminently harmful authoritarian institutions.
Many questions arise here: Do the people in emerging authoritarian states
exercise their democratic voting rights? Can we uphold the claim that new
autocrats take actions as a matter of form in a legal and democratic manner?
Is the Russian State Duma a democratically elected body? Why do many
political leaders from Turkey to Poland need constitutional justices, judges,

15
Id. at 7–9.
16
Kim Lane Scheppele, Autocratic Legalism, 85 U. CHI. L. REV. 545, 545–48 (2018).
17
See Laurent Pech & Kim Lane Scheppele, Illiberalism Within: Rule of Law Backsliding in the EU,
19 CAMBRIDGE Y.B. EUR. LEGAL STUD. 3, 11 (2017) (In this analysis, the authors put the rule of law
backsliding into the center.).
18
Kim Lane Scheppele, The Rule of Law and the Frankenstate, 26 GOVERNANCE 559, 559–62 (2013).
19
GEORG FRIEDRICH HEGEL, THE SCIENCE OF LOGIC 776–78 (1969) (the idea was introduced by
Aristotle and Heraclitus, developed by Hegel, and reformulated by Engels).
322 WASHINGTON INTERNATIONAL LAW JOURNAL VOL. 28 NO. 2

and public prosecutors who are ready to obey their authority? If we maintain
that constitutional procedures and institutions are just a fig leaf designed to
show democratic legitimacy and to cover something else, we should
understand what is being covered up, and how.

I think we cannot insist that the new autocratic rise is formally legal and
democratic. I argued elsewhere that—contrary to the popular view—new
authoritarianism is undemocratic and illegal development whose mechanisms
can be understood better as pretenses of democracy. 20 We can better
distinguish today’s authoritarianism from its predecessors if we understand
the new mechanisms that create the pretense of democracy. Pretense here
means essentially that the new type of system behaves as if it were a
constitutional democracy; as if it gave preference to democratic values,
principles and institutions. 21 Authoritarianism claims, first, that it has
obtained democratic authorization from the majority of the people, and
second, that it is respecting the formal rules of democracy. In my view, both
claims are false.

In the next chapter, I will outline the defining elements of populist

authoritarianism. 22 Then, I will bring the concepts of trust and distrust of
representative government into focus. My aim is to show the importance of
both trustful constitutional cooperation and mechanisms of distrust in
constitutionalism. Populist authoritarian executives break this balance and
gain unrestrained power. The divergence from equilibrium can be a marker of
populist authoritarianism.

20
Tóth, supra note 2.
21
A crucial conceptual difficulty here is that in some significant respects, there are considerable
overlaps between the constitutional mechanisms of advanced democracies and authoritarian regimes. For
example, attacking the independent judiciary; manipulating electoral rules so as to favor one party; curtailing
civil liberties and freedom of the press; and introducing arbitrary emergency measures cannot be simply seen
as indicators of an authoritarian government because those practices exist in functioning constitutional
democracies, too. I believe, however, that there is a meaningful difference between authoritarian pretense of
democracy and imperfection of functioning constitutional democracies. Authoritarian pretense of democracy
is calculated, systematic and institutionalized as to its democratic functioning and credentials, but also in
terms of the way it constructs and articulates the rule of law. In functioning democracies, in contrast, what
one may call pretense is either sporadic or an activity of key political players, but far from a consistent
strategy of constitutional institutions orchestrated by a political leader. That kind of shortcomings in a
constitutional democracy can be considered as unavoidable imperfection or, in more serious cases, signs of
authoritarian tendencies.
22
For earlier versions of my account on defining elements of populist authoritarianism, see Tóth,
Constitutional Markers of Authoritarianism, supra note 2, n.3; see also GÁBOR ATTILA TÓTH, F.L. JUST. &
SOC’Y, THE AUTHORITARIAN’S NEW CLOTHES: TENDENCIES AWAY FROM CONSTITUTIONAL DEMOCRACY
(2015).
April 2019 Breaking the Equilibrium 323

This piece limits itself to a descriptive, comparative, and evaluative

constitutional analysis. 23 However, it would be misleading to think that
mechanisms of trust and distrust in constitutional transformation are purely
legal or constitutional issues. Nevertheless, I can by no means hope to give an
exhaustive explanation. I must specifically omit economic, socio-cultural, and
psychological factors without which the causes, motives, and purposes can be
understood to a limited extent only.

II. DEFINING ELEMENTS OF POPULIST AUTHORITARIANISM

A. Pseudo-Constitution

The constitutional texts in authoritarian systems are often not

fundamentally different from those found in constitutional democracies. The
difficulty, however, is that authoritarian constitutions do not follow a regular
pattern.24 In some countries, constitution making starts early. Some examples
of this include the rapid adoptions of the constitutions of Venezuela and
Ecuador, or the Hungarian Fundamental Law. 25 The case of Turkey is an
example of an alternative method: the Constitution has been amended several
times so as to change the system gradually and completely.26 In other cases,
political practice rather than constitutional modification as such makes the
difference. For instance, the 1993 Russian Constitution is not fundamentally
different from the 1958 French Constitution whose presidential form of
government it has adopted, yet it functions entirely differently. 27 In
exceptional cases, nothing has changed at the constitutional level. In Poland,

23
Ronald Dworkin, Hart’s Postscript and the Character of Political Philosophy, 24 OXFORD J. LEGAL
STUD. 1, 9 (2004) (I share the view that descriptive meaning of constitutional concepts “cannot be peeled off
from evaluative force because the former depends on the latter in that way.”).
24
ANDREW ARATO, THE ADVENTURES OF THE CONSTITUENT POWER BEYOND REVOLUTIONS? 76
(2017) (offering a new paradigm on origins, methods and models of constitutional design).
25
Kriszta Kovács & Gábor Attila Tóth, Hungary’s Constitutional Transformation, 7 EU. CONST. L.
183, 197 (2011) (For example, the 2011 Hungarian Fundamental Law was adopted within two months. The
draft text was released on March 14 and the Law was promulgated on April 25. The parliamentary agenda
ensured five days for the plenary debate about the concept and four days about the details. That meant nine
days from start to finish.). See also David Landau, Abusive Constitutionalism, 47 U.C. DAVIS L. REV. 189
(2013), for a comparative perspective
26
Ahmet Erdi Öztürk & İştar Gözaydın, Turkey’s Constitutional Amendments: A Critical Perspective,
2 RES. & POL’Y ON TURK. 210 (2017).
27
See TIMOTHY SNYDER, THE ROAD TO UNFREEDOM: RUSSIA, EUROPE, AMERICA (2018) (De Gaulle
and Yeltsin, the founding fathers of the two constitutions respectively, aimed to weaken the constitutional
role of the parliaments and broaden the executive president’s competences. During the last six decades, the
French constitutional system remained democratic, allowing fair and peaceful changes in executive power,
whereas the Russian Constitution established an authoritarian rule. On the Russian system from a
comparative and historical perspective.).
324 WASHINGTON INTERNATIONAL LAW JOURNAL VOL. 28 NO. 2

an authoritarian system in the making, the ruling party lacks a qualified

majority; therefore, it cannot abolish the Constitution and adopt a new one in
a way that conforms to the law. It can be said, however, that the Constitution
of Poland is a dead letter or de facto invalid because it is disregarded
systematically by ordinary laws.28

Perhaps the only common feature of the authoritarian constitutions is

that they do not serve as normative benchmarks. Loewenstein calls a
“normative constitution” one that is real, living, effective, and enforced; one
that “actually governs the dynamics of the power process instead of being
governed by it.”29 In this sense, a normative constitution is the ultimate legal
instrument of control on political processes. This concept is equivalent to
Sartori’s “garantiste constitution,” which puts an obstacle in the way of
arbitrary governmental power and ensures limited government. 30 Today,
Dieter Grimm calls it an “achievement of constitutionalism” when
constitutions rule out any absolute or arbitrary power of man over man.31

In contrast to the normative constitution, an authoritarian constitution

today is a combination of a descriptive “map of political powers”32 and a
“façade” constitution.33 I call this a pseudo-constitution. As a predecessor of
contemporary pseudo-constitutions, we may consider Loewenstein’s
semantic constitution. It is a mere description of the governmental system; in
the author’s words:

[It] is nothing but the formalization of the existing location of

political power for the exclusive benefit of the actual power
holders. . . . Instead of serving for the limitation of political
power, it has become the tool for the stabilization and
perpetuation of the grip of the factual power holders on the
community.34

28
Wojciech Sadurski, How Democracy Dies (in Poland): A Case-Study of Anti-Constitutional
Populist Backsliding (U. Sydney L. Sch. Legal Stud. Research, Paper No. 18/01, 2018).
29
KARL LOEWENSTEIN, POLITICAL POWER AND THE GOVERNMENTAL PROCESS 148–49 (1957).
30
Giovanni Sartori, Constitutionalism: A Preliminary Discussion, 56 AM. POL. SCI. REV. 853, 861
(1962) (Garantiste constitutions are defined by Sartori as proper, congruent with the 19th century consensus,
which limit arbitrary government power and ensure limited government.).
31
DIETER GRIMM, DIE ZUKUNFT DER VERFASSUNG 31 (2002); Dieter Grimm, Types of Constitutions,
in OXFORD HANDBOOK OF COMPARATIVE CONSTITUTIONAL LAW 104 (2012).
32
ERIC BARENDT, AN INTRODUCTION TO CONSTITUTIONAL LAW 6 (1998).
33
Sartori, supra note 30, at 861.
34
LOEWENSTEIN, supra note 29, at 149–50.
April 2019 Breaking the Equilibrium 325

The semantic constitution is, thus, not an honest instrument but a means
by which an autocratic government disguises its true character. Lowenstein
saw the Constitution of the Soviet Union as a clear case of semantic
constitution.35

Sartori identifies another type of fake constitution, which he calls

“façade constitution.” It appears to be a true constitution, compatible with the
values and principles of normative constitutionalism, from checks and
balances to multi-party elections. However, these principles “are disregarded
at least in their essential garantiste features.” As far as liberty and equality
rights are concerned, they are dead letter.36

In the pseudo-constitutions of contemporary authoritarianism, there is

a significant overlap between components of semantic and façade
constitutions. They are partly descriptive and partly sham. Consider the
Fundamental Law of Hungary. On the one hand, it describes the existing
representative, executive, and judicial institutions, and gives information
about the state’s non-secular commitment and anti-asylum-seeker attitude.37
On the other, it basically presents a façade by proclaiming that the state is
democratic under the rule of law, that the government respects human rights,
and that no one’s activities shall be aimed at the exclusive possession of
power.38

Authoritarians adopt pseudo-constitutions because today the

constitution is globally approved as a pattern of legitimation. However, the
text of a pseudo-constitution is typically inconclusive because some parts are
effective in a descriptive sense only, while others are systematically
disregarded. In other words, such constitutions lack normative relevance
35
LOEWENSTEIN, supra note 29, at 150.
36
Sartori, supra note 30, at 861.
37
See Gábor Attila Tóth, Hungary, in CONSTITUTIONAL LAW OF THE EU MEMBER STATES 773–835
(2014) (The Preamble (“National Avowal”) of the Fundamental Law was written in the spirit of the Catholic
faith. This is what the reference to Saint Stephen and the Holy Crown (of St. Stephen) implies: “We are proud
that one thousand years ago, our King Saint Stephen established the Hungarian State on solid foundations
and led our country to become part of Christian Europe” and “we acknowledge the nation-preserving role of
the Christian faith”. The National Avowal explicitly mentions “the Holy Crown, which embodies the
constitutional continuity of the state and the unity of the nation” and the historical constitution. In this way
the Fundamental Law not only recalls the historical role of Christianity in founding the Hungarian State, but
expresses that present Hungarian constitutionalism is based upon the traditional Christian faith. In the
Fundamental Law, the right to asylum is granted only “if neither their country of origin nor another country
provides protection” for the asylum-seeker (Art. XIV(3)).).
38
See GÁBOR ATTILA TÓTH, CONSTITUTION FOR A DISUNITED NATION: ON HUNGARY’S 2011
FUNDAMENTAL LAW (2012), for a comprehensive critical analysis.
326 WASHINGTON INTERNATIONAL LAW JOURNAL VOL. 28 NO. 2

because all political power resides with the leader of the ruling party. For this
reason, in order to understand how an authoritarian system is really governed,
the actual practice must be examined, in addition to the constitutional text.39

B. Hegemonic Voting Practices

Today, many authoritarian systems constitutionally retain multiparty

elections and provide scope for activities of opposition movements. What
makes them distinctive is that the election is managed so as to deny opposition
candidates a fair chance. Legal norms and practices ensure the dominance of
the ruling party. The governing party may enjoy undue advantage because of
partisan changes in election law, unequal suffrage, gerrymandering of
electoral districts, restrictive campaign regulations, and biased media
coverage that blurs the separation between political party and the state, thus
preventing an independent assessment of the election (e.g., Hungary). 40
Modification of voter identification and registration laws may result in de
facto disenfranchisement (e.g., Zimbabwe under President Mugabe). Electoral
laws may unfairly promote voting by the diaspora (e.g., Senegal), or hinder
the voting ability of émigrés (e.g., Venezuela under Chavez).41 Even landslide
victories for authoritarian leaders, or their parties, may be attributed to a range
of tools at the disposal of incumbents, such as manipulation of the public by
mass media (e.g., Russia) or strategic delays to scheduled elections (e.g.,
Lebanon).42

Authoritarianism, apparently, implements a first-past-the-post voting

method (the candidate with the most votes in the electoral district wins) or a

39
Andrew Arato & Gábor Attila Tóth, The Multifaceted Sovereign: Domestic and International Actors
in Constitutional Regime Changes, in CONSTITUTIONAL ACCELERATION WITHIN THE EUROPEAN UNION AND
BEYOND 73–96 (2018) (Arato and I argue that prior to the adoption of a constitution, international advisory
and monitoring bodies legitimately take part in the national constitution-making procedure. After the
adoption of a constitution, international courts may legitimately review the process of national constitution-
making and constitutional norms on the basis of universal human rights and constitutional standards.).
40
LEVITSKY & WAY, supra note 4; SCHEDLER, supra note 5, at 105–07. But see Toth, Constitutional
Markers of Authoritarianism, supra note 2 (I think, however, that the “electoral authoritarianism” tag is
misleading because the elections in the authoritarian regimes are far from free and fair.).
41
Ozan O. Varol, Stealth Authoritarianism, 100 IOWA L. REV. 1673, 1702 (2015).
42
Samantha Bradshaw & Philip N. Howard, Challenging Truth and Trust: A Global Inventory of
Organized Social Media Manipulation, THE COMPUTATIONAL PROPAGANDA PROJECT (2018),
https://comprop.oii.ox.ac.uk/research/cybertroops2018/ (last visited Nov. 8, 2018) (A new research has
revealed the impact of strategies and techniques used by government cyber troops, and that their activities
violate democratic norms. For example, Russia made significant efforts in 2016 and 2017 to disrupt elections
around the world, and also political parties spread disinformation domestically. The growth of cyber troop
activity from 2017 to 2018 has demonstrated that these strategies are circulating globally.).
April 2019 Breaking the Equilibrium 327

hybrid voting system with predominant majoritarian elements, where not so

much the results of the elections but rather legal norms and practices—that is,
the system as a whole—guarantee the dominance of the ruling party.43 Thus,
an authoritarian system appears to be a majoritarian one backed by the
electorate, with authoritarian leaders claiming exclusive moral representation
of the people. The rejection of political pluralism and fair deliberative
procedures does not belong among the defensible conceptions of democracy.
In short, democracy is where the authorities arrange elections;
authoritarianism is where the authorities arrange the elections and the results.

C. Weakening Institutional Checks

Contemporary populist authoritarianism maintains the entire set of

formal institutions associated with constitutional democracy,44 using them as
both a façade of democratic representation and a tool of authoritarian
imposition. 45 Although the constitutional structures of authoritarian states
inevitably consist of the three main parts—the legislative, the executive, and
the judicial branches of government—they are not based upon the principles
of separation of powers. Some transforming systems reportedly replace the
role of the constitutional judiciary with “parliamentary sovereignty” (e.g.,
Poland). 46 In practice, constitutional and statutory regulations, as well as
constitutional conventions, are “reformed” and result in politically expedient
modifications to the constitutional courts’ personal composition (“court
packing”), competences, and institutional and financial independence.47 By
way of example, this is precisely how the Hungarian and the Polish
Constitutional Courts were neutralized. 48 Decisions of the constitutional

43
See Venice Commission, Report on Electoral Systems: Overview of Available Solutions and
Selection Criteria (EC) No. 250/2003 of Feb. 4, 2004.
44
See JÁNOS KIS, CONSTITUTIONAL DEMOCRACY ix–x (2003) (Democracy can be labelled as both
“liberal” and “constitutional” democracy. The former term puts the emphasis on a set of values and principles:
liberty, equality, autonomy, collective self-governance, equal participatory rights in political decision
making. The latter term refers to institutional preferences: the constitution enjoys the highest rank both
procedurally and substantially; free and fair elections are held periodically; elected representatives of the
people make laws; and judiciary enforces civil liberties.).
45
SCHEDLER, supra note 5, at 54–56.
46
Wojciech Sadurski, Polish Constitutional Tribunal Under PiS: From an Activist Court, to a
Paralysed Tribunal, to a Governmental Enabler, 11 HAGUE J. RULE L. (forthcoming 2019),
https://doi.org/10.1007/s4080 3-018-0078-1 (for the latest developments).
47
David Landau, Abusive Constitutionalism, 47 U.C. DAVIS L. REV. 189, 194 (2013); Mark Tushnet,
Authoritarian Constitutionalism 100 CORNELL L. REV. 391, 426 (2015).
48
Kriszta Kovács & Kim Lane Scheppele, The Fragility of an Independent Judiciary: Lessons from
Hungary and Poland—and the European Union, 51 COMMUNIST & POST-COMMUNIST STUD., 189, 189–200
328 WASHINGTON INTERNATIONAL LAW JOURNAL VOL. 28 NO. 2

justices, appointed according to the will of the authoritarian leader, may

contribute to the reinforcement of the system. The only exception is
Kyrgyzstan, where the Constitutional Court was abolished with the adoption
of the Constitution of 2010, transferring some of its powers to the Supreme
Court.49

As the record of the Valery Zorkin-chaired Russian Constitutional

Court demonstrates, altered but not abolished tribunals may serve as a tool of
authoritarian imposition. Vladimir Putin deployed constitutional review to
help centralize and consolidate his authoritarian power. 50 Moreover,
authoritarians occasionally tolerate painful judgments to construct a façade of
constitutionalism, provided that the judiciary does not threaten the core of
authoritarian institutional design (as was the case with the judiciary in Egypt
under President Mubarak).51 Invariably, the aim behind such constitutional
changes is to safeguard and promote the interests of a particular political force
without constitutional balances.52

Populist authoritarian leaders often invoke the “will of the people” to

undercut the role of the constitutional judiciary, the institutional safeguard to
protect the rule of law and individual freedoms. Weaker legal ties mean,
however, that it is not only the judiciary but also other democratic institutions
that are undermined. It becomes possible to sidestep representative
government if the popular will is not legally constructed or channeled, but
rather the echo chamber of a dominant leader. Consequently, populist

(2018); see also Kriszta Kovács & Gábor Attila Tóth, Hungary’s Constitutional Transformation, EUR.
CONST. L. REV. (2011), 183, 183–203 (2011) (discussing the first authoritarian steps in detail).
49
Venice Commission, Opinion on the draft Constitution of the Kyrgyz Republic (EC) No. 582/2010
of June 4, 2010, ¶¶ 57–59, 69.
50
Valery Zorkin, “Буква и дух Конституции” [The letter and spirit of the constitution], Rossiyskaya
Gazeta, No. 7689 (226) Oct. 9, 2018, https://rg.ru/2018/10/09/zorkin-nedostatki-v-konstitucii-mozhno-
ustranit-tochechnymi-izmeneniiami.html (visited Nov. 8, 2018) (most recently, Valery Zorkin argued in a
think piece in Russia’s official newspaper, Rossiyskaya Gazeta, for “drastic reforms” to the constitution. For
the sake of pretense, he criticized the current text for having insufficient checks and balances. More
importantly, he warned against “outmoded liberal models of democracy,” and advocated a “more effective
model of popular rule” and “traditional values against globalization.” In Zorkin’s account, “the European
Court of Human Rights is increasingly divorced from reality, imposing its position on countries and forcing
people to defend themselves.).
51
Varol, supra note 41, at 1691.
52
Id. at 1689.
April 2019 Breaking the Equilibrium 329

authoritarian leadership emerges at the expense of not only constitutional

judiciary but also of parliamentarianism.53

D. Superior Executive

Structurally or in practice, constitutional powers are utterly unbalanced

in these types of governments. The executive branch—especially the head of
the executive: the president (e.g., Turkey and Russia), the prime minister (e.g.,
Hungary), the monarch (e.g., Saudi Arabia), or the de facto head of the
government (e.g., Poland under Kaczynski)—is not only superior in power,
but also enjoys unchecked power. Formal and actual power may differ
significantly, as in Russia under the presidency of Medvedev, or formal
governmental dominance may be subordinate to informal party dominance, as
in Poland.54

The constitutional struggle against authoritarianism, particularly in

Africa and Latin America in recent decades, has often focused on the
introduction of presidential term limits and the attempts of autocrats to have
these term limits removed by constitutional reform or by reinterpretation of
the term limit by the constitutional court (e.g., Peru). This scheme has been
used in Burundi and Rwanda, where controversial third terms entrenched the
position of the incumbent presidents.55

Clearly, constitutional democracy may take various institutional forms.

It may be a monarchy or a republic; it may have a presidential or a
parliamentary system; it may be a federal or a unitary state. Nonetheless,
comparative surveys of governmental systems reveal that some presidential

53
See in a theoretical context, JUAN J. LINZ, TOTALITARIAN AND AUTHORITARIAN REGIMES 209–17
(2000) (As another alternative to representative democracy, several earlier authoritarian forms of government
preferred corporatism to competitive multiparty systems. Although authoritarianism has never availed itself
exclusively of a corporatist model, and corporatism has never been exclusively an authoritarian attribute,
non-democratic constitutional systems granting many cases a representative constitutional function to large
interest groups such as business corporations, professional organizations, churches, or trade unions. A famous
example of corporative structures is the Mussolini-regime.).
54
Gábor Attila Tóth, Căi constituţionale spre autocraţie? Studii de caz privind situaţiile din Ungaria
şi Polonia [Constitutional Roads to Autocracy? Case Studies from Hungary and Poland], 2 NOUA REVISTA
DE DREPTURILE OMULUI [NEW REVIEW OF HUMAN RIGHTS] 3–15 (2016).
55
Gábor Attila Tóth, Authoritarianism, in MAX PLANCK ENCYCLOPEDIA OF COMPARATIVE
CONSTITUTIONAL LAW (2017), http://oxcon.ouplaw.com/view/10.1093/law-mpeccol/law-mpeccol-e205
(last visited Dec. 23, 2018) (in Burundi, according to a contra-textual interpretation of the Constitution, Art.
96, in Rwanda, Art. 101 of the Constitution).
330 WASHINGTON INTERNATIONAL LAW JOURNAL VOL. 28 NO. 2

systems have difficulties sustaining democratic practices.56 Under a range of

cultural and social conditions, a parliamentary system is more democratically
robust than a presidential one. Depending on political traditions, culture, and
the electoral system, the transformation of the executive and legislative
branches into a presidential system may lead to authoritarianism, yet this is
not necessarily always the case. To illustrate: although both the 1958 French
and the 1993 Russian Constitutions were seen as reactions to parliamentary
paralysis, with aspirations for a strong executive, French political and
constitutional practice managed to maintain constitutional democracy over the
long term; whereas, by contrast, since the relatively liberal beginnings of
Yeltzin era Russia, the country has moved dramatically toward the
authoritarian practices of the post-Glasnost era under Putin, although there
have been minimal changes to the constitutional text itself.57

An important stepping stone to authoritarianism seems to be broad or

ill-defined powers, including emergency powers, of the executive, the
“guardian of the Constitution.” In an advanced constitutional democracy, a
state of emergency should provide only temporary conditions for exercising
otherwise legitimate power. 58 A temporarily modified constitutional
democracy means that some constitutional rights are restricted, but the main
purpose of the state of emergency is to restore the democratic legal order and
the full enjoyment of human rights.59 In a regime that seeks to distance itself
from liberal democracy, the ruler’s declaration of a state of emergency serves
to institutionalize an arbitrary executive power unhampered by legal
constraints, thus creating a long-standing special power beyond the rule of
law. As the constitutional developments in Turkey show, by referring to
terrorist threats and other imminent dangers, the head of the executive can

56
JUAN J. LINZ, THE BREAKDOWN OF DEMOCRATIC REGIMES: CRISIS, BREAKDOWN AND
REEQUILIBRATION. AN INTRODUCTION (1978); SEYMOUR MARTIN LIPSET & JASON M. LAKIN, THE
DEMOCRATIC CENTURY 38–48 (2004).
57
TIMOTHY SNYDER, THE ROAD TO UNFREEDOM: RUSSIA, EUROPE, AMERICA (2018) (Snyder shows
that President Putin follows ideas of Ivan Ilyin, a Russian philosopher who once imagined “Russian Christian
fascism,” and borrowed ideas from Carl Schmitt (for example, politics is the art of identifying and
neutralizing the enemy). Snyder argues that the constitutional system of the Russian Federation today
resembles the Russian Empire of the late nineteen century. Both systems reject the rule of law as the principle
of government. Law today is almost the same as “произво́л,” the arbitrary rule by autocratic tsars.).
58
David Dyzenhaus, State of Emergency, in OXFORD HANDBOOK OF COMPARATIVE CONSTITUTIONAL
LAW 442–61 (András Sajó & Michael Rosenfeld eds., 2012).
59
Kriszta Kovács, The State of Exception: A Springtime for Schmittian Thoughts?, 17 DIRITTO E
QUESTIONI PUBBLICHE 163, 179 (2017).
April 2019 Breaking the Equilibrium 331

successfully initiate a wide-ranging constitutional amendment, leading to a

sovereign-led authoritarian system.60

E. Restriction of Fundamental Rights

Many authoritarian constitutions formally declare fundamental rights

for their citizens, but these are rarely legally enforceable. A common tactic is
to construct a constitutional catalog of fundamental rights, ostensibly based
upon the international standards arising from the United Nations Universal
Declaration of Human Rights and regional human rights treaties. Yet, the
constitution will, in fact, contain a number of sections in direct contradiction
with international human rights law, typically recognizing certain
fundamental rights only to the extent that these rights serve the interests of the
ruling political group or class.

Authoritarian leaders tend to restrict freedom of speech by de facto

capturing an immense part of the mass media and by de jure takeover of public
media. Although criminal prosecution is still a tool for authoritarianism (see
Turkey), political leaders often opt for a less blunt approach. Instead they sue
journalists and civil rights activists for defamation to silence dissent rather
than resorting to imprisonment, blatant prohibitions, or the suppression of
journals, books, films, or websites.61 Freedom of speech and of the press can
be denied or restricted in the name of the ruling class, the dominant religion,
or the protection of the head of state. It seems clear that, where restrictions on
free speech protect the ruler in particular, or the executive in general, or indeed
members of the majority (citing, for example, the dignity of the nation,
country, or dominant ethnic group), instead of members of vulnerable social
groups, such regulations constitute one aspect of an authoritarian approach. In
this way, the general public is subject to systematic manipulation by the
government.

60
See ANDREW ARATO, POST SOVEREIGN CONSTITUTION MAKING: LEARNING AND LEGITIMACY 223–
68 (2016) (for a detailed analysis).
61
Freedom of the Press 2017: Press Freedom’s Dark Horizon, FREEDOM HOUSE
https://freedomhouse.org/report/freedom-press/freedom-press-2017 (last visited Dec. 23, 2018); Elana
Beiser, 2018 World Press Freedom Index, REPORTERS WITHOUT BORDERS, https://rsf.org/en/ranking (last
visited Dec. 23, 2018); See Record Number of Journalists Jailed as Turkey, China, Egypt pay scant price for
repression, COMMITTEE TO PROTECT JOURNALISTS (Dec. 13, 2017),
https://cpj.org/reports/2017/12/journalists-prison-jail-record-number-turkey-china-egypt.php (on criminal
prosecution in Turkey, China and Egypt).
332 WASHINGTON INTERNATIONAL LAW JOURNAL VOL. 28 NO. 2

Similarly, racial or ethnic exclusions, as well as repression of the civil

society are among the characteristics of authoritarian constitutional systems.
Although civil society organizations are rarely prohibited, many regimes from
Algeria to Venezuela have adopted discriminatory, inflexible, and costly
requirements for the registration and reporting of civil society groups. 62
Likewise, “foreign agent” laws have been used as a tool of authoritarianism;
their primary aim is to curb cooperation between international and domestic
NGOs (non-governmental organizations) (e.g., Belarus, Hungary, Israel,
Russia). 63 Moreover, in many regimes, government-organized non-
governmental organizations (GONGOs) have been set up and/or financed by
the executive in order to imitate civil society, promote authoritarian interests,
and hamper the work of legitimate NGOs (e.g., Egypt, Hungary, Russia,
Syria, Turkey).64

F. Populism

The decay of liberal democracy and the rise of authoritarianism are

often associated with the spread of populism across the globe.65 Contrary to
conventional wisdom, I think, populism—as a political concept, ideology, and
worldwide tendency—is not only anti-elitist or anti-liberal, but also anti-
democratic. 66 While many authoritarian systems appear to be majoritarian
backed by the electorate through popular vote or referendum, they are likely
based on one-sided modifications to the constitution and electoral laws, and
subsequently, on unfair elections. By rejecting political pluralism, deliberative
procedures of democracy, and institutional checks, populist leaders claim
exclusive moral representation of “the people.” If a populist achieves the

62
Varol, supra note 41, at 1706–07, 1714–15
63
See, e.g., European Commission for Democracy Through Law [Venice Commission], Opinion on
Federal Law N. 121-FZ on Non-Commercial Organizations (“Law on Foreign Agents”), on Federal Laws
N. 18-FZ and N. 147-FZ and on Federal Law N. 190-FZ on Making Amendments to the Criminal Code
(“Law on Treason”) of the Russian Federation 13–14, 716-717/2013 (June 27, 2014)
https://www.venice.coe.int/webforms/documents/default.aspx?pdffile=cdl-ad(2014)025-e.
64
See, e.g., Moises Naim, What is a GONGO: How Government-Sponsored Groups Masquerade as
Civil Society?, FOREIGN POLICY (Oct. 13, 2009), https://foreignpolicy.com/2009/10/13/what-is-a-gongo/.
65
JAN-WERNER MÜLLER, WHAT IS POPULISM? 54–58 (2016); David Landau, Populist Constitutions,
85 U. CHI. L. REV. 521, 521 (2018).
66
William Partlett, The Dangers of Popular Constitution-Making, 38 BROOK. J. INT’L L. 193, 234
(2012); Cas Mudde & Cristóbal Rovira Kaltwasser, Populism, in THE OXFORD HANDBOOK OF POLITICAL
IDEOLOGIES 493–512 (2013) (distinguishing democratic and antidemocratic populisms).
April 2019 Breaking the Equilibrium 333

desired aim—a strong executive power, unhindered by legal constraints—the

system will unavoidably become an authoritarian state.67

III. TRUST AND DISTRUST OF GOVERNMENT: THE HOBBESIAN AND LOCKEAN

CONCEPTIONS

We need to examine the mechanisms of trust and distrust of a

representative government to obtain a better understanding of populist
authoritarianism. Trust can be defined as the firm belief that someone or
something is reliable, truthful, or possesses the means or skill to do
something. 68 It is first and foremost an interpersonal and communal
relationship, and much of human social life relies on it. We give our word to
each other, we rely on each other’s word, and we expect others to behave in
this and not another way. Most aspects of our social lives and interactions with
individuals take the existence of trust for granted; without it, life would be
difficult, if not inconceivable. 69 Beyond trust in individuals, we may talk
about trust in social structures and political institutions. The question arises
whether political relations are or should be built on trust, too. One might argue
that establishing constitutional institutions that grant individuals enforceable
rights presupposes that we cannot trust each other. Similarly, once we
establish constitutional institutions, there is no longer a need for trust.70 But
this simple rejection does not seem satisfactory. The correlation between
political institutions and trust is more complex.

Modern constitutionalism can be described as a dichotomy of two rival

theoretical conceptions of constitutional government. Protection against cruel,
oppressive, and unreasonable use of governmental power is considered the
core aim of constitutionalism. U.S. Supreme Court Justice Louis Brandeis
pointed out that the constitutional guarantees of limited governments are not

67
Jean Cohen, Populism and the Politics of Resentment, JUS COGEN: A CRITICAL JOURNAL OF THE
PHILOSOPHY OF LAW AND POLITICS (forthcoming 2019) (Jean Cohen argues, first, that when civil societies
become deeply divided, and segmental pluralism maps onto party political polarization, social solidarity is
imperiled, as is commitment to democratic norms, social justice and liberal constitutionalism; and second,
that populist political entrepreneurs excel in fomenting social antagonisms by framing shifts in the forms of
social pluralism in ways that foster deep political polarization, generalized distrust and a politics of
resentment against “the establishment’” and “outsiders”).
68
ADRIAAN T. PEPERZAK, Trustworthy Constitutions, in TRUST: WHO OR WHAT MIGHT SUPPORT US?
54 (2013) (see constitutionalism in its Chapter “Trustworthy Constitutions?”).
69
JONATHAN WOLFF, AN INTRODUCTION TO POLITICAL PHILOSOPHY 198 (3d ed. 2016).
70
Id.
334 WASHINGTON INTERNATIONAL LAW JOURNAL VOL. 28 NO. 2

present to promote efficiency, but to prevent autocracy and arbitrary power.71

However, a well-functioning legal system requires not only institutional limits
of power, but also effectivity and efficiency. This two-fold character of
constitutionalism goes back to the two rival traditions of constitutionalism
originating from Thomas Hobbes and John Locke.

The Hobbesian conception, which is a historical predecessor of Locke’s

views, rests on a powerful justificatory idea of sovereign government: an
effective and efficient executive that is able to protect the safety of the people
and avoid anarchy.72 In contrast, the Lockean tradition provides justification
for a limited government.73 To Locke, the state of nature “is a condition in
which the need or demand for rational trust hopelessly exceeds the available
supply.”74 Checks and balances are required in the constitutional design in
order to prevent the emergence of a tyrannical executive. In the Hobbesian
conception, constitutional constraints are substituted by trust in the sovereign
authority, whereas in the Lockean conception, constitutional limitations
presuppose that public officials and institutions should be distrusted. Hobbes
teaches us that too many checks may paralyze the government and lead to
disintegration and anarchy, whereas Locke warns us that too much trust in
public authorities may lead to an arbitrary government. In other words, we can
learn from Hobbes why trust in effective civil government is needed, and from
Locke why distrust is justified and, as a consequence, why it requires
constitutional limits on the government. This is the core of the dichotomy
between the Hobbesian and Lockean conceptions of constitutionalism.

71
Myers v. United States, 272 U.S. 52, 293 (1926); See Martin Krygier, Four Puzzles about the Rule
of Law: Why, What, Where? and Who Cares, in GETTING TO THE RULE OF LAW 50, 78–81 (2011) (for reasons
that arbitrary power is unacceptable).
72
See DAVID DYZENHAUS AND THOMAS POOLE, HOBBES AND THE LAW (2012) (on Hobbes as a legal
and constitutional thinker); See JOHN BOWIE, HOBBES AND HIS CRITICS: A STUDY IN SEVENTEENTH CENTURY
CONSTITUTIONALISM (1952) (on the reception and varied readings of Hobbes’ political ideas by his
contemporaries); See also Royce MacGillvray, Thomas Hobbes’s History of the English Civil War, 31 THE
J. FOR THE HISTORY OF IDEAS 179, 184–85 (1970); See, e.g., QUENTIN SKINNER, HOBBES AND REPUBLICAN
LIBERTY (2008) (for the predominant interpretation of Hobbes); NORBERTO BOBBIO, THOMAS HOBBES AND
THE NATURAL LAW TRADITION (Daniela Gobetti trans., 1993); Martin Loughlin, The Political Jurisprudence
of Thomas Hobbes, in HOBBES AND THE LAW (2012); Id. at 5–21.
73
See generally Jean-Fabien Spitz, Locke’s Contribution to the Intellectual Foundations of Modern
Constitutionalism, in CONSTITUTIONS AND THE CLASSICS: PATTERNS OF CONSTITUTIONAL THOUGHT FROM
FORTESCUE TO BENTHAM 152–68 (2014).
74
John Dunn, What Is Living and What Is Dead in the Political Theory of John Locke?, in
INTERPRETING POLITICAL RESPONSIBILITY 9, 24 (1990).
April 2019 Breaking the Equilibrium 335

The Lockean view often becomes influential during transitions from an

authoritarian regime to democratic constitutionalism. 75 Roughly speaking,
democratic opposition movements echo Locke’s view that human beings are
“by nature all free, equal, and independent, no one can be put out of this estate
and subjected to the political power of another without his own consent.”76
Most seem to agree with the Lockean belief that, on the one hand, no one is
born to rule or to be ruled and, on the other hand, that the right to life, liberty,
and property belong to all. Some of the political players (conservative parties,
religious groups with different political leanings) may follow the classical
natural law theory by referring to God, while others, who do not share this
religious view, appeal to equal dignity as the highest humanistic principle.

Countries in democratic transition are not, of course, in a state of perfect

freedom and equality. On the contrary, the political society has suffered under
single-party political oppression. This is why the people seek an institutional
order wherein the legislative and executive powers do not systematically
violate, but rather maintain and promote, individual rights. Moreover, it is a
common claim that legal disorder, namely the arbitrary administration and
adjudication of law according to the demands of the ruling party, should be
replaced by a legal system under the procedural and substantive guarantees of
the rule of law. Locke, again, is found to be a teacher of the rule of law by a
limited government: “[T]he legislative or supreme authority cannot assume to
itself a power to rule by extemporary, arbitrary decrees, but is bound to
dispense justice, and to decide the rights of the subject by promulgated,
standing laws, and known authorized judges.”77

As Locke, or Montesquieu, the other inventor of limited government,

might have said, legitimate political institutions are meant to create certain
foreseeable legal rules or to serve as checks upon abuses of law-making and
law-enforcing authorities.

The Hobbesian approach provides a powerful justificatory idea when a

representative government is paralyzed.78 The cold civil war and the anarchy-

75
See, e.g., JÁNOS KIS, L'ÉGALE DIGNITÉ: ESSAI SUR LES FONDEMENTS DES DROITS DE L’HOMME (1989)
(another influential normative theory for democratic oppositions has its roots in Kantian philosophy).
76
John Locke, The Second Treatise, of the Beginning of Political Sciences in TWO TREATISES OF
GOVERNMENT AND A LETTER CONCERNING TOLERATION 141, § 95 (Ian Shapiro ed., 2003).
77
Id. at 160, § 136.
78
When the confrontation between the monarch and parliamentary obstruction increases inexorably,
there remains no alternative for both sides but go to—cold or hot—civil war. Today, constitutional theory
336 WASHINGTON INTERNATIONAL LAW JOURNAL VOL. 28 NO. 2

like state (bellum omnium contra omnes) may revive a Hobbesian view of
constitutionalism. Advocates of transition from constitutional democracy cite
Hobbes: a strong central authority is needed in order to triumph over the evils
of disorder.79 As Hobbes might have said, the governing person or body (the
Sovereign) can be empowered by a social contract that will afford people a
life other than what was available to them in the previous period. To ensure
escape from legal disorder, people should renounce their rights and establish
an effective law enforcement system headed by the Sovereign, which enforces
whatever rules and restrictions it wishes. From a Hobbesian perspective, in
populist authoritarian systems the parliamentary majority is led by a person in
charge—the party leader, the president, or the prime minister—who is the
highest legal power, a kind of Sovereign. Since the majority of voters have
given this entity the authority to enact laws, everybody should obey the
imposed regulations, regardless of disrespected individual interests or moral
rights.

Hobbes, in the manner of any magnificent thinker, is of course highly

complex.80 Hobbes is not the precursor of totalitarianism. Nor is he a founding
father of liberal constitutional democracy. It is true that we can find a path
from Hobbes to liberal theorists and the modern rule of law.81 It is a way that
leads, first, from a sovereign King to a sovereign Parliament, and then to a
limited parliamentarianism, firmly established by Albert Dicey 82 and
developing in the contemporary jurisprudence.83 However, the predominant
view of Hobbes, as an interpretation by Carl Schmitt reveals,84 may go to

and political science identify a successor to this, the cold civil war, a cycle of escalating constitutional
brinkmanship. See an explanation in DEBORAH BAUMGOLD, HOBBES’S POLITICAL THEORY 71 (1988).
79
THOMAS HOBBES, LEVIATHAN 3 (John Charles Addison Gaskin ed., 1996).
80
On the reception and varied readings of Hobbes’ political ideas, see John Bowie, Hobbes and His
Critics: A Study in Seventeenth Century Constitutionalism, 67 POL. SCI. Q. 610, 610–12 (1952).
81
David Dyzenhaus, Hobbes’s Constitutional Theory, in LEVIATHAN 452–80 (Ian Shapiro ed., 2010)
(David Dyzenhaus argues that Hobbes is an early member of the rule of law tradition. For Hobbes, order is
legal order, in which the sovereign rules not merely by law, but also in accordance with the rule of law.);
David Dyzenhaus, How Hobbes Met the Hobbes Challenge, 72 MODERN L. REV. 488–506 (2009); Thomas
Poole, Hobbes on Law and Prerogative, in HOBBES AND THE LAW 68–96 (2012) (Thomas Poole examines
the tension in Hobbes’s legal theory between the sovereign’s legal authority (creating laws as a stable
framework for social interaction) and his prerogative authority (deciding extra-legally what is best for the
safety of his subjects). In Pool’s interpretation, that tension does not make Hobbes’s system unstable, but
rather holds it together.).
82
ALBERT V. DICEY, INTRODUCTION TO THE STUDY OF THE LAW OF THE CONSTITUTION 145–53
(1982).
83
JEFFREY GOLDSWORTHY, THE SOVEREIGNTY OF PARLIAMENT: HISTORY AND PHILOSOPHY (1999).
84
CARL SCHMITT, DER LEVIATHAN IN DER STAATSLEHRE DES THOMAS HOBBES: SINN UND
FEHLSCHLAG EINES POLITISCHEN SYMBOLS (1995); MICHAEL J. OAKESHOTT, HOBBES ON CIVIL ASSOCIATION
(2000).
April 2019 Breaking the Equilibrium 337

extremes to justify an authoritarian or tyrannical legal system which prefers

not only efficient but also arbitrary central government (see the “Sovereign
Dictator”) to individual liberties.85

IV. TRUST IN PARLIAMENTARY SOVEREIGNTY IN THE UNITED KINGDOM

Traditionally, the foundation of the United Kingdom’s constitution is

the doctrine of parliamentary sovereignty. For theorists such as Hobbes,
Austin, and Dicey, it was assumed that constitutional authority derives from
the people: the people are the source of sovereignty. The unlimited bearer of
sovereignty is, however, the representative. 86 In a constitutional sense, the
people exist only in their representatives. In this model, the progress gradually
leads from the Hobbesian theory of the sovereign king to the idea of organic
unity (king-in-parliament), and later to the hegemony of the House of
Commons (parliamentary sovereignty).

Explaining the nature of parliamentary sovereignty, Dicey emphasizes:

The principle of parliamentary sovereignty means neither more

nor less than this, namely, that Parliament thus defined has, under
the English constitution, the right to make or unmake any law
whatever; and, further, that no person or body is recognized by
the law of England as having a right to override or set aside the
legislation of Parliament.87

The idea of checks and balances is inconsistent with the pervading

principle of English constitutional law.88 The grotesque expression of Jean-
Louis de Lolme, an advocate of the constitutional form of balanced
government and critic of the parliamentary supremacy, has become

85
STEPHEN HOLMES, THE ANATOMY OF ANTILIBERALISM 50 (1993) (Holmes argues that in his
Leviathan, Schmitt pretends to be liberal); see also Johan Tralau, Introduction: Thomas Hobbes, Carl
Schmitt, and three conceptions of politics, in THOMAS HOBBES AND CARL SCHMITT: THE POLITICS OF ORDER
AND MYTH 3–14 (2011) (for a more critical perspective).
86
John Austin, The Province of Jurisprudence Determined, THE EXAMINE 497–98 (1995 ed. 1832).
87
DICEY, supra note 82, at 87.
88
MONTESQUIEU, DE L’ESPIRIT DES LOIS 162 (Gonzague Truce ed., 1961) (Famously, Montesquieu
misunderstood on this point the English constitution. He thought that both the executive and the judicial
branches were separated from the legislative body.); See also DICEY, supra note 82, at 211; See Laurence
Claus, Montesquieu’s Mistakes and the True Meaning of Separation 25 OXFORD J. LEGAL STUD. 419 (2005)
(for a critical perspective).
338 WASHINGTON INTERNATIONAL LAW JOURNAL VOL. 28 NO. 2

proverbial: “Parliament can do everything but make a woman a man and a

man a woman.”89

In this model, constitutional conventions consisting of customs,

practices, and maxims constitute limitations. 90 Conventions of the
constitution are not recognized or enforced by the courts; instead, they make
up a body of constitutional morality. By way of an example, a government
minister who has lost the confidence of the House of Commons is obliged to
resign. Similarly, the government can exercise its discretionary powers to take
action without parliamentary approval. Both political morality and the force
of public opinion (but not the courts) require that constitutional institutions
obey conventional rules. To put it simply, the trust in the fairly-elected
legislative body and the resilience of conventions lies at the center of this
constitutional theory. The Parliament is entrusted with the power to make
whatever laws it pleases.91

However, the legally unlimited parliament is not the only foundation of

English constitutionalism. Even Dicey acknowledges that sovereign power is
bound by external and internal limits. “The external limit to the legal power
of a sovereign consists in the possibility or certainty that his subjects, or a
large number of them, will disobey or resist his laws.”92 It means that the
authority, even that of a despot, depends upon willingness of his subjects to
obey his instructions. The internal limit to the exercise of sovereignty arises
from the nature of the sovereign power itself. It is limited from within, because
the legislature is the product of a certain social condition and is determined by
whatever defines the society that it governs. “If a legislature decided that all
blue-eyed babies should be murdered, the preservation of blue-eyed babies
would be illegal; but legislators must go mad before they could pass such a
law, and subjects be idiotic before they could submit to it.”93

More importantly, Dicey also argues that the supremacy of the rule of
law also forms a fundamental principle of the constitution. This enunciation
has three meanings. First, the absolute supremacy of regular law as opposed
to the influence of arbitrary power. Second, equality before the law, or equal

89
JEAN-LOUIS DE LOLME, THE CONSTITUTION OF ENGLAND 132 (Oxford. J. of Legal Stud. ed., 1807).
90
DICEY, supra note 82, at 244.
91
WALTER BAGEHOT, THE ENGLISH CONSTITUTION 34 (Paul Smith ed., 2001) (Another classic author,
Bagehot also gives an account on the respectful relationship between the queen and the cabinet.).
92
DICEY, supra note 82, at 102–04.
93
LESLIE STEPHEN, SCIENCE OF ETHICS 143 (2d ed. 2011).
April 2019 Breaking the Equilibrium 339

subjection of all classes to the ordinary law of the land administered by the
ordinary courts. Lastly, the rule of law mandates that the laws of the
constitution are not the source but the consequence of the rights of individuals,
as defined and enforced by the courts.94 In this way, the rule of law empowers
the courts to take part in determining the law of the constitution: the law can
only include those rules which are recognized and enforced by the courts.

Last but not least, it is well known that the constitutional architecture
of the United Kingdom has undergone a considerable transformation in recent
decades. An element of this transformation has been the adoption of the
Human Rights Act 1998 (HRA) which incorporates the European Convention
on Human Rights (ECHR) into U.K. law and promotes the enforcement of
European human rights by the U.K. courts.95 Parliament is required by the
HRA to take into account any relevant Strasbourg case law.96 The declaration
of incompatibility by apex courts is considered as a crucial institutional
mechanism in harmonizing the domestic legal system with the ECHR.97 As
Lord Bingham put it in the case of R (Ullah) v. Special Adjudicator, “while
such case law is not strictly binding, it has been held that courts should, in the
absence of some special circumstances, follow any clear and constant
jurisprudence of the Strasbourg court.”98 In R (Jackson) v. Attorney General,
Lord Hope argued that “Parliamentary sovereignty is no longer, if it ever was,
absolute. . . . Step by step, gradually but surely, the English principle of the
absolute legislative sovereignty of Parliament which Dicey derived from Coke
and Blackstone is being qualified.” 99 More importantly, Lord Bingham
mentioned that “checks and balances [are] inherent in the British
constitution.”100 This process of transformation also involves reforms to the
House of Lords, such as the abolition of judicial functions and the introduction
of resignation, the establishment of an independent Supreme Court, which has

94
DICEY, supra note 82, at 145–53.
95
Howard Davis, Human Rights Law Directions (4th ed. 2016).
96
Aileen Kavanagh, Constitutional Review under the UK Human Rights Act, 73 MODERN L. REV. 887
(2010).
97
R v. Horncastle & Others, [2009] UKSC 14, [10] (appeal taken from [2009] EWCA Crim. 9640,
Eng.); see also Al-Khawaja & Tahery v. The United Kingdom, App. Nos. 26766/05 & 22228/06 (Eur. Ct.
H.R. 2011) (Grand Chamber) (A declaration of incompatibility by a court means that a statute or part of a
statute is incompatible with the ECHR. It does not invalidate the statue, but the government can use a rapid
procedure to ensure that Parliament amends the statute.).
98
R v. Special Adjudicator ex parte Ullah (FC) [2004] UKHL 26, [20] (appeal taken from Eng.).
99
Jackson v. Her Majesty's Attorney General [2005] 1 A.C. (H.L.) 262, [104] (appeal taken from
Eng.).
100
Id. at 41.
340 WASHINGTON INTERNATIONAL LAW JOURNAL VOL. 28 NO. 2

already produced extensive human rights case-law,101 and the expansion of

democratic self-governing competences in Northern Ireland, Scotland, and
Wales. These developments show that this model, based upon the Hobbesian
interpretation of constitutionalism, borrows important elements from the
Lockean tradition.

Dicey’s constitutional ideas of parliamentary sovereignty have been

subject to criticism in recent decades. Eric Barendt, reconsidering on the one
hand the concept of parliamentary sovereignty and rule of law and, on the
other, the new constitutional developments, has claimed that Dicey’s
conceptions are misleading.102 I think Dicey would have argued that the rule
of law, the de facto external and internal limits, and the constitutional
conventions constitute instruments of balance between the trust in
parliamentary supremacy and the distrust towards the government. Barendt
and Lord Bingham would possibly reply that the equilibrium requires a
thorough revision of the idea of parliamentary sovereignty.

V. CHECKS AND BALANCES AS MEANS OF DISTRUST IN THE UNITED STATES

The birth of U.S. constitutionalism can be described as a materialization

of distrust towards the British government. The Declaration of Rights and
Grievances enunciated that “his majesty’s’ liege subjects in these colonies are
entitled to all the inherent rights and privileges of his natural born subjects”
within the kingdom.103 Therefore, imposed taxes were seen as violations of
the English constitution. Echoing the theories of Locke and Montesquieu, the
Declaration of Independence went further by proclaiming that, to secure
unalienable rights, “Governments are instituted among Men, deriving their
just powers from the consent of the governed” and that “it is the right of the
people to alter or to abolish the government” whenever it becomes destructive
of these ends.104

101
See generally ANDREW LE SUEUR ET AL., BUILDING THE UK’S NEW SUPREME COURT: NATIONAL
AND COMPARATIVE PERSPECTIVES (1st ed. 2004); STEPHEN GARDBAUM, THE NEW COMMONWEALTH MODEL
OF CONSTITUTIONALISM: THEORY AND PRACTICE (1st ed. 2013); Mark Tushnet, The Rise of Weak-Form
Judicial Review, in COMPARATIVE CONSTITUTIONAL LAW 321, 326 (Tom Ginsburg & Rosalind Dixon eds.,
2011).
102
See BARENDT, supra note 32, at 88–89. See in more detail in ERIC BARENDT, DICEY AND CIVIL
LIBERTIES (1985). See also Goldsworthy, supra note 78 (reinterpreting parliamentary sovereignty).
103
Declaration of Rights and Grievances (1765).
104
THE DECLARATION OF INDEPENDENCE para. 2 (U.S. 1776).
April 2019 Breaking the Equilibrium 341

The distrust towards the government is based not only on bitter colonial
resentment but also on a banal anthropological presupposition. As James
Madison famously formulated in The Federalist Papers, No. 51:

If men were angels, no government would be necessary. If angels

were to govern men, neither external nor internal controls on
government would be necessary. In framing a government which
is to be administered by men over men, the great difficulty lies
in this: you must first enable the government to control the
governed; and in the next place oblige it to control itself. A
dependence on the people is, no doubt, the primary control on
the government; but experience has taught mankind the necessity
of auxiliary precautions.105

This is the human condition which makes constitutional checks and

balances imperative. Again, “ambition must be made to counteract
ambition.”106 Constitutional devices to control the abuses of government are
“reflections on human nature,” Madison writes, “but what is government
itself, but the greatest of all reflections on human nature?” 107 It is not an
exaggeration to say that U.S. constitutionalism has typically identified with
the Madisonian notion of limited government. Checks and balances, vertical
and horizontal separation of powers, and even constitutional review, as
evidenced in Marbury v. Madison, 108 go back to the original idea of the
founders.

However, the one-time debate between the Federalists and

Antifederalists reminds us that this model of constitutional architecture aims
at a restrained but efficient government. The Federalists advocated in favor of
a more efficient central government, while the Antifederalists distrusted
federal power. Under the pen name Brutus, one of the authors of the
Antifederalist Papers warned that a federal system headed by a president

105
THE FEDERALIST NO. 51 (James Madison).
106
Id.
107
Id.
108
[“T]he particular phraseology of the Constitution of the United States confirms and strengthens the
principle, supposed to be essential to all written Constitutions, that a law repugnant to the Constitution is
void; and that courts, as well as other departments, are bound by that instrument.” Marbury v. Madison, 5
U.S. (1 Cranch) 137, 180 (1803) (emphasis original); see also, THE FEDERALIST PAPERS NO. 78 (Alexander
Hamilton).
342 WASHINGTON INTERNATIONAL LAW JOURNAL VOL. 28 NO. 2

might degenerate into despotism. Today it is important to remember Brutus’s

point, quoting Montesquieu, that:

[I]n a large [federal system], there are men of large fortunes, and
consequently of less moderation; there are too great deposits to
trust in the hands of a single subject; an ambitious person soon
becomes sensible that he may be happy, great and glorious by
oppressing his fellow citizens, and that he might raise himself to
grandeur, on the ruins of his country.109

Analyzing the debate, Hannah Arendt argues that what the founders of
the federal American Constitution “were afraid of in practice was not power
but impotence,” because of the history of defects and the paralysis of the
Confederacy, as well as the belief of Montesquieu that republican government
was effective only in relatively small territories. Accordingly, “the true
objective of the Constitution was not to limit power but to create more power,
actually to establish and duly constitute an entirely new power center, destined
to compensate the confederate republic.”110 In sum, the inspiring principle of
the U.S. Constitution was the dualism between liberty and efficiency; in other
words, a strong yet still limited union.

It is apparent that this constitutional model aims to prevent leaders from

concentrating and abusing public power. Nonetheless, it would be a gross
simplification to conclude that a public power limited by a written
constitution, separation of powers, and the system of checks and balances are
the only characteristics of U.S. constitutionalism. If there were only
constitutional checks, an efficient federal government would be impossible.

Similar to U.K. constitutionalism, this model also relies on unwritten

constitutional conventions, often called “usages.”111 In their most recent book,
Steven Levitsky and Daniel Ziblat write that two conventions stand out as
fundamental to the system: mutual toleration and institutional forbearance.
The former refers to the idea that “as long as our rivals play by constitutional
rules, we accept they have an equal right to exist, compete for power, and

109
George Clinton, Antifederalist No. 14, in THE ANTIFEDERALIST PAPERS 37 (Morton Borden ed.,
1965) (1787).
110
HANNAH ARENDT, ON REVOLUTION 153–54 (1990).
111
Keith E. Whittington, The Status of Unwritten Constitutional Conventions in the United States, 2013
U. ILL. L. REV. 1847, 1847–70 (2013).
April 2019 Breaking the Equilibrium 343

govern.” 112 In short, political opponents are not enemies. Institutional

forbearance is closely related to mutual toleration. It can be thought of as
“avoiding actions that, while respecting the letter of the law, obviously violate
its spirit.”113 The text of the Constitution does not prohibit that constitutional
institutions use their competences to the hilt. A president could govern
unilaterally by issuing executive orders, proclamations, and executive
memoranda without the endorsement of Congress. A president could similarly
bypass the judiciary by refusing to enforce court judgments or by extensive
exercise of the power to issue a presidential pardon. The Senate could prevent
presidents from appointing justices or members of the executive. Legislative
minorities and even individual senators could obstruct legislation by
indefinitely prolonging the debate. 114 Such unwritten conventions may
prevent constitutional institutions and decision makers from reaching an
impasse and causing a crisis.

VI. COMPARATIVE ASSESSMENT

Constitutionalism is better served when the elements of rival Hobbesian

and Lockean theories are balanced. A comparison of the rival models of
constitutionalism may support the idea that under certain circumstances, a
relatively stable equilibrium can be maintained between constitutional
cooperation and of the proclivity to distrust governments. Competition and
fight for governmental power do not necessarily exclude mutual respect and
partnership.115

Nonetheless, scholars have long warned that democracy is in danger in

the United States. This is a time when politics are polarized. 116 Many

112
LEVITSKY & ZIBLAT, supra note 14, at 102.
113
LEVITSKY & ZIBLAT, supra note 14, at 106.
114
See GREGORY KOGER, FILIBUSTERING: A POLITICAL HISTORY OF OBSTRUCTION IN THE HOUSE AND
SENATE (2010).
115
See Bundesverfassungsgericht [BVerfG] [Federal Constitutional Court] Mar. 26 1957, 2 BvG 309
(361) (Ger) (For a comparison of vertical separation of powers, see the term Bundestreue designating a
federal-friendly attitude in Germany. Both the federal governmental branches and the States are obliged to
cooperate bona fide and contribute to the preservation of the interests of the Federation and its members.);
see also Fabian Wittreck, Die Bundestreue, in 1 HANDBUCH FÖDERALISMUS (Ines Hartel ed.); GRUNDLAGEN
DES FÖDERALISMUS UND DER DEUTSCHE BUNDESSTAAT 497–525 (2012); HARTMUT BAUER, DIE
BUNDESTREUE, ZUGLEICH EIN BEITRAG ZUR DOGMATIK DES BUNDESSTAATSRECHTS UND ZUR
RECHTSVERHÄLTNISLEHRE (1992) (providing a detailed analysis).
116
Cf. RONALD DWORKIN, IS DEMOCRACY POSSIBLE HERE? PRINCIPLES FOR A NEW POLITICAL DEBATE
(2008) (presenting an early diagnosis with suggestions for tackling this problem and identifying and
defending core constitution principles (equal value of human life and personal autonomy as responsibility)
that all citizens can and should share).
344 WASHINGTON INTERNATIONAL LAW JOURNAL VOL. 28 NO. 2

Americans distrust governmental institutions. 117 The established forms of

toleration and institutional self-restraint are challenged.118 First, as a result of
mutual distrust, constitutional checks have been used excessively and a
number of longstanding conventions have been broken. Second, the following
impasse has given rise to an authoritarian presidential administration with a
tendency to disrespect constitutional checks and balances. 119 The United
Kingdom’s withdrawal from the European Union can be also seen as a clear
sign of disintegration. It represents the distrust towards supranational
institutions. The idea of preferring democracy on the domestic level to
supranational development goes hand in hand with other proposed
constitutional changes. Among the proposals, we find the repeal of the Human
Rights Act, withdrawal from the ECHR, and a preference for appointed peers
to elect representatives in the Parliament.120 These tendencies echo the then-
conventional and now-revitalized scholarly view that Parliament has the final
say in matters of the constitution and human rights. It is far from evident that
trust in a single constitutional body under the rule of a pure majority, no matter
how deeply rooted, would serve the values and principles of constitutional
democracy better than a pluralistic and cooperative approach to constitutional
justice.121

117
For example, in the 1970s, about forty percent of American citizens had a “great deal/quite a lot” of
trust in Congress; in recent years, this rate has dropped to about ten percent. Gallup, Confidence in
Institutions, GALLUP (Nov. 8, 2018), http://news.gallup.com/poll/1597/confidence-institutions.aspx; see also
Stephen Breyer, Making Our Democracy Work: The Yale Lecture, 120 YALE L.J. 1999 (2011) (describing
an early constitutional account).
118
See Aziz Huq & Tom Ginsburg, How to Lose a Constitutional Democracy, 65 UCLA L. REV. 78
(2018) (providing a comparative perspective and arguing that prospects of liberal democracy depend less on
institutions than on political leadership, popular resistance, and party politics).
119
See BRUCE ACKERMAN, THE DECLINE AND FALL OF THE AMERICAN REPUBLIC (2018) (laying out a
deeper analysis of institutional pathologies) (modified from Bruce Ackerman, Tanner Lecture on Human
Values, TANNER LECTURES (Nov. 8, 2018) https://tannerlectures.utah.edu/_documents/a-to-
z/a/Ackerman_10.pdf); see also SUNSTEIN, supra note 6 (raising the provocative question, can it be a
dictatorship in the United States?).
120
See, e.g., CONSERVATIVE PARTY, PROTECTING HUMAN RIGHTS IN THE UK: THE CONSERVATIVES’
PROPOSAL FOR CHANGING BRITAIN’S HUMAN RIGHTS LAWS,
https://www.conservatives.com/~/media/files/.../human_rights.pdf (last visited Dec. 22, 2018); EUROPEAN
UNION COMMITTEE, THE UK, THE EU AND A BRITISH BILL OF RIGHTS 2015, 2015–16, H.L. at 139, U.K.,
https://publications.parliament.uk/pa/ld201516/ldselect/ldeucom/139/139.pdf.
121
See, e.g., CONSTITUTION IN CRISIS: THE NEW PUTNEY DEBATE (Denis J. Galligan ed., 2017)
(collecting different views) (The UK constitutional transformation has of course attracted distinguished
scholarly attention).
April 2019 Breaking the Equilibrium 345

Many studies reveal that a gradual loss of trust in public institutions has
occurred on an almost global scale over the past two- or three decades.122 In
constitutional democracies, citizens are increasingly dissatisfied with their
political institutions.123 In these times we are witnessing that the loss of trust
in democratic representative government is contributing to the rise of populist
authoritarianism.

We need to look for the reasons behind this loss of trust; we can find
them in several forms. Economic reasons are easy to find as economic
prosperity causes public satisfaction, whereas economic decline erodes
citizens’ trust in the government. In the European Union, new data shows that
people who have suffered more from difficult economic times are more likely
to have lost confidence in democratic governments and in the EU institutions.
Distrust towards democratic institutions is at its worst in the economies that
have struggled the most.124 The phenomenon, however, seems more complex.
Perhaps it is better to say that severe financial and social shocks, such as bank
crises, corruption, social injustice, social polarization, mismanagement of
migration, and terrorist threats may contribute to widespread social distrust.125
An important role has also been played by institutional factors ranging from
unaccountable political leaders to structural shortcomings of the constitutional
institutions.

Thus, social confidence in the democratic government and political

institutions are strongly associated with each other. Social trust can help build
effective institutions which consolidate into well-performing governments
and this, in turn, encourages confidence in constitutional institutions. 126

122
See, e.g., JOSEPH S. NYE, JR. ET AL., WHY PEOPLE DON’T TRUST GOVERNMENT (1997); PIPPA
NORRIS, CRITICAL CITIZENS: GLOBAL SUPPORT FOR DEMOCRATIC GOVERNMENT (1999); MARK E. WARREN,
DEMOCRACY AND TRUST (1999).
123
See Scheppele, supra note 16, at 546 n.1 (referring to the OECD countries, where trust in public
institutions decreased in average from approximately 44% to 36% between 2009 and 2013); See also Esteban
Ortiz-Ospina & Max Roser, Trust, OUR WORLD IN DATA, https://ourworldindata.org/trust (last visited Nov.
8, 2018),
124
Recent European Union data shows a decline in trust in both EU institutions and national
institutions. Trust in government in EU debtor countries declined from between 40 to 50% to less than 20%
between 2008 and 2015. Chase Foster & Jeffrey Frieden, Crisis of Trust: Socio-economic Determinants of
Europeans’ Confidence in Government, 18 EUROPEAN UNION POLITICS 511 (2017). The authors argue that
citizens with more education and higher levels of skills trust government more than those educational and
occupational groups that have benefited less from European integration.
125
See SUSAN J. PARR & ROBERT D. PUTNAM, DISAFFECTED DEMOCRACIES: WHAT’S TROUBLING THE
TRILATERAL COUNTRIES? (2000).
126
See Kenneth Newton & Pippa Norris, Confidence in Public Institutions: Faith, Culture or
Performance?, in DISAFFECTED DEMOCRACIES, supra note 126, at 178.
346 WASHINGTON INTERNATIONAL LAW JOURNAL VOL. 28 NO. 2

Conversely, complex social tendencies and institutional shortcomings may

anticipate a progressive erosion of the trust in democratic institutions and
constitutionalism.127 Remember the archetypal case of the Weimar Republic:
the fall of constitutional democracy and the rise of totalitarianism.128 It is true
that the economic calamity of the Great Depression proved fatal for the
constitutional democracy in Germany. But the consequences of the Versailles
Treaty, internal threats from political extremists, and failed cooperation of
moderate political parties also played a role in the fall of the Weimar
Constitution. 129 The political institutions were unable to deal with the
economic, social, and political crisis.

Similar schemes seem to work worldwide today. Putin’s and Erdogan’s

dominance in Russia and Turkey respectively are the consequence of distrust
towards political institutions. Both leaders pulled off the customary trick of
offering a solution to instability largely of their own making. Authoritarians
usually point to different signs of crisis justifying a popular mandate in their
favor to deal with the issue unboundedly. 130 As a result, the Parliament
changes the constitution and apex courts alter the reading of the constitutional
text to support an executive president with increased powers.131 Similarities
can be detected in many other countries, notably Hungary, where populist
authoritarianism has triumphed over constitutional democracy. The rather
rosy story of post-communist constitutional transformation has been gradually
127
See NYE ET AL., supra note 122; Pippa Norris, Institutional Explanations for Political Support, in
CRITICAL CITIZENS, supra note 122, at 217.
128
ERNST FRAENKEL, THE DUAL STATE: A CONTRIBUTION TO THE THEORY OF DICTATORSHIP (2017);
FRANZ NEUMANN, BEHEMOTH: THE STRUCTURE AND PRACTICE OF NATIONAL SOCIALISM 1933–44 (1944);
HANNAH ARENDT, THE ORIGINS OF TOTALITARIANISM (1958) (Among the best pioneering works you may
find are Fraenkel’s Dual State, Neumann’s Authoritarian State, and Arendt’s Origins of Totalitarianism.).
See also FRANZ NEUMANN, DEMOKRATISCHER UND AUTORITAR ̈ ER STAAT. STUDIEN ZUR POLITISCHEN
THEORIE (Herbert Harcuse ed., 1967).
129
Franz Neumann, The Decay of German Democracy, in, THE RULE OF LAW UNDER SIEGE: SELECTED
ESSAYS OF FRANZ L. NEUMANN AND OTTO KIRCHHEIMER 9, 41 (William E. Scheurman ed., 1996) (originally
appeared in The Political Quarterly 4. no. 1 (1933)). For a comparison of different views, see Arthur J.
Jacobson & Bernhard Schlink, WEIMAR: A JURISPRUDENCE OF CRISIS (Arthur J. Jacobson & Bernhard
Schlink eds., Belinda Cooper trans., 2000) (collecting a comparison of different views).
130
See Vladislav Surkov, Dolgoye gosudarstvo Putina, NEZAVISIMAYA GAZETA (Feb. 11, 2019).
http://www.ng.ru/ideas/2019-02-11/5_7503_surkov.html (Vladislav Surkov, ideologist and senior adviser to
Russian President Putin, advocating national sovereignty and strong presidential authority and emphasizing
that in the Putin-regime military and police functions are decisive, rather than representative or judicial
branches of government.).
131
See generally CARL MINZNER, END OF AN ERA: HOW CHINA’S AUTHORITARIAN REVIVAL IS
UNDERMINING ITS RISE (2018) (regarding the decreasing relevance of law and increasing importance of
discipline in China). China is a more recent example of the abolition of term limits. In March 2018, the
National People’s Congress adopted a constitutional amendment that abolished term limits for the presidency.
In this way, Xi Jinping may hold the position indefinitely. Id.
April 2019 Breaking the Equilibrium 347

spoiled. During a period of decline, observers of Hungarian politics and law

have witnessed a cold civil war characterized by paralyzed legal institutions
and distrust towards the old constitution. Several empirical studies have
revealed that an overwhelming majority of the Hungarian society distrusted
legal institutions such as the Parliament, governmental bodies, and courts.132
According to a comparative survey, two decades after 1989, the “annus
mirabilis,” seventy-seven percent of Hungarians were dissatisfied with the
way democracy was working in the country.133 Approval for changing from a
single-party system to a democracy had decreased by eighteen percent. 134
Finally, the cold civil war ended in a landslide election victory for the political
right, paving the way for the total transformation of the legal system that
resulted in the adoption of the 2011 Fundamental Law and its amendments.135

VII. CONCLUSION

In sum, representative governments in several countries cannot cope

with legal and extra-legal difficulties. Poor democratic traditions, weak civil
society, and imperfect legal institutions may all make the constitutional
systems vulnerable. When a representative government is paralyzed because
of fundamental disagreement, and legal stability crumbles because of a
disintegrating constitutional system, the public finds itself wishing for an
effective and efficient executive. This path may lead towards populist
authoritarianism.

Contemporary tendencies show that the executive power may gain

unrestrained power when a constitutional system fails to maintain the balance
between trust in the legitimate government and the impulse to distrust it. A
divergence from equilibrium can be a sign of populist authoritarianism.
Although modern authoritarianism refers to principles and aims of
132
THE PEW GLOBAL ATTITUDES PROJECT, TWO DECADES AFTER THE WALL’S FALL: END OF
COMMUNISM CHEERED BUT NOW WITH MORE RESERVATIONS 32 (2009), pewglobal.org/files/2009/11/Pew-
Global-Attitudes-2009-Pulse-of-Europe-Report-Nov-2-1030am-NOT-EMBARGOED.pdf; See also Chung-
Si Ahn & Won-Taek Kang, Trust and Confidence in Government in Transitional Democracies: South Korea
in Comparative Perspective, 11 J. KOREAN POLITICS (2002) (comparing South Korea and its neighboring
countries).
133
TWO DECADES AFTER THE WALL’S FALL, supra note 132.
134
Id. at 1.
135
DEMOS, NOTHING TO FEAR BUT FEAR ITSELF: SUMMARY REPORT (2017),
https://www.demos.co.uk/wp-content/uploads/2017/02/Nothing-to-Fear-but-Fear-Itelf-final-short.pdf (The
level of distrust in the Polish national government is also high, around 60%. Polish citizens have far more
trust in the European Commission than their constitutional institutions.); See Susan Rose-Ackerman, Beyond
Electoral Mandates—Oversight and Public Participation, VERFASSUNGSBLOG (Nov. 13, 2018),
https://verfassungsblog.de/beyond-electoral-mandates-oversight-and-public-participation/ (analyzing this
attitude).
348 WASHINGTON INTERNATIONAL LAW JOURNAL VOL. 28 NO. 2

democracy, it introduces mechanisms that diverge from those of democratic

institutions. When authoritarianism calls for a constitutional change so as to
create a more dynamic and efficient executive, it is misusing constitutional
institutions. The lesson may be that an effective and efficient government is
impossible when only constitutional checks work and, conversely, an
authoritarian executive may emerge when constitutional checks do not work
at all.