Rarely has democracy been so acclaimed yet so breached, so promoted yet so disrespected, so important yet so disappointing. Today, democracy has become the sine qua non of legitimacy. Few governments want to be seen as undemocratic. Yet the credentials of the claimants have not kept pace with democracy’s growing popularity. These days, even overt dictators aspire to the status conferred by the democracy label. Determined not to let mere facts stand in the way, these rulers have mastered the art of democratic rhetoric that bears little relationship to their practice of governing.Kenneth Roth, Despots Masquerading as Democrats, Introduction, World Report 2008, supra.
What are those elements of governance that suggest democratic government--or better put, how is one to distinguish between genuine and sham democracies? The issue is important. Under modern notions of transnational constitutionalism, sham democracies are illegitimate--as are the governments created thereunder. As constitutional "outlaws" sham democracies may be subverted, ignored, sanctioned, or overthrown. Yet, Human Rights Watch tells us, "By allowing autocrats to pose as democrats, without demanding they uphold the civil and political rights that make democracy meaningful, the United States, the European Union and other influential democracies risk undermining human rights worldwide." Human Rights Watch, World Report 2008: Democracy Charade Undermines Rights, June 28, 2008.
It is not that pseudo-democratic leaders gain much legitimacy at home. The local population knows all too bitterly what a farce the elections really are. At best, these leaders gain the benefit of feigned compliance with local laws requiring elections. Rather, a good part of the motivation today behind this democratic veneer stems from the international legitimacy that an electoral exercise, however empty, can win for even the most hardened dictator.Kenneth Roth, Despots Masquerading as Democrats, Introduction, World Report 2008, supra. As a consequence, "'It’s now too easy for autocrats to get away with mounting a sham democracy,' said Kenneth Roth, executive director of Human Rights Watch. 'That’s because too many Western governments insist on elections and leave it at that.'" World Report 2008: Democracy Charade Undermines Rights, supra.
Well, then, what constitutes a legitimate democracy? For Human Rights Watch, of course, it involves a host of factors that, in the end, tend to privilege its own position and that of institutional civil society within the governance matrix of states. Thus, in its complaints about the inaction of established democracies, Human Rights Watch can define the elements of legitimate democracy in those terms: "'They don’t press governments on the key human rights issues that make democracy function – a free press, peaceful assembly, and a functioning civil society that can really challenge power.'" World Report 2008: Democracy Charade Undermines Rights, supra. (quoting Kenneth Roth). And here lies a problem. Yet there is a bit of incoherence in the mix. For while faulting established democracies and Western states for not pushing the mostly developing states on their democratic institutions, Human Rights Watch suggests a bit of illegitimacy within established democracies themselves. "Abuses in the “war on terror” featured in France, Pakistan, the United Kingdom, and the United States, among others." Id.
Reading the World Report 2008, carefully, it appears that democracy is a bit of a sham everywhere, except, perhaps in the hearts and minds of the members of certain elements of global civil society. But that can't be right. Beyond the messiness of its thinking, Human Rights Watch is trying to make two distinct points--though conflating them in ways that may not serve either very well. On the one hand, Human Rights Watch offers international human rights norms as the basis for democratic legitimacy, and on the other looks to elections as the key to accountability necessary for the functioning of legitimate democratic systems. Effectively the form of democratic legitimacy--elections--is conflated with the social ordering necessary for its expression--governance based on adherence to international human rights principles. "Electoral fraud, political violence, press censorship, repression of civil society, even military rule have all been used to curtail the prospect that the proclaimed process of democratization might actually lead to a popular say in government." Kenneth Roth, Despots Masquerading as Democrats, Introduction, World Report 2008, supra. Thus, Human Rights Watch suggests that generally that scrupulous adherence to most advanced level of evolving standards of human rights (at least as understood by them) constitutes a bedrock principle of democratic legitimacy to which all states ought to try to strive. In that respect, it is clear that no state has reached a state of perfection--both because the human rights standards at issue keep evolving (they are a moving target) and because state practices lapse. It is with respect to this latter reason, of course, that human rights and democracy become so tightly bound--accountability. Only by accountability to those whose rights are at risk by state action can state functionaries be made more sensitive to the needs to behave properly.
Accountability is the bridge to the second major point Human Rights Watch is attempting to make. If human rights are the bedrock of democratic legitimacy, and democratic legitimacy is, in turn, grounded on accountability, then the key to democratic legitimacy must lie in appropriate mechanisms for the effectuation of accountability. And for Human Rights Watch, that key is bound up in the notion of elections.
States claiming the mantle of democracy, including Kenya and Pakistan, should guarantee the human rights that are central to it, including the rights to free expression, assembly and association, as well as free and fair elections. But in 2007 too many governments, including Bahrain, Jordan, Nigeria, Russia and Thailand, acted as if simply holding a vote is enough to prove a nation “democratic,” and Washington, Brussels and European capitals played along, Human Rights Watch said.Id. It is the last point, of course, that was played up in the Western press. See West Embraces Sham Democracies, BBC News Online, January 31, 2008. This is itself ironic, both for the presumption of the privilege of Western states to project their democratic values onto others states (something that the same presses would criticize as imperialistic under circumstances) and for the idea that free and fair elections constitute the universal standard for accountability and legitimacy. See, US and EU Accused of Backing Sham Democracies, Financial Times Online, Jan. 31, 2008.
The reason for this conflation is simple for Human Rights Watch. "Part of the reason that dictators can hope to get away with such subterfuge is that, unlike human rights, “democracy” has no legally established definition." Despots Masquerading as Democrats, supra. Indeed, it is not clear that even Human Rights Watch is comfortable with democracy as a vehicle for political governance. "It is far from a perfect political system, with its risk of majoritarian indifference to minorities and its susceptibility to excessive influence by powerful elements, but as famously the “least bad” form of government, in the words of Winston Churchill, it is an important part of the human rights ideal." Id. Yet it is fundamentally flawed in a way that resonates in a peculiarly powerful way to the mentality of the 21st century: it is not not grounded in positive law form a supreme legitimating legislator.
Yet there is no International Convention on Democracy, no widely ratified treaty affirming how a government must behave to earn the democracy label. The meaning of democracy lies too much in the eye of the beholder.Id. Aaaaaaah, but human rights--that is different! Why? Because it is not a descriptor of a process of fluid human interaction but a code of behavior that appears on its face to be easy to understand, apply and enforce. . .across borders. "Human rights are a system of law: treaties and jurisprudence, provision and precedent. Looking back six decades to the beginning of that system, with the Universal Declaration of Human Rights, its construction seems one of the major works of the twentieth century." Scott Long, Two Novembers Movements, Rights and the Yongyakarta Principles, World Report 2008, supra. These, rather than the more amorphous notions of accountability through participation, are to serve as a proxy for democratic legitimacy. "The specificity and legally binding nature of human rights are their great strength." Despots Masquerading as Democrats, supra.
So, now we have it. Regrettably. Not that human rights as a system of powerful weapons against power are bad. Indeed, the opposite tends to be true, especially for individuals unprotected by either their status within the apparatus of parties in power or through membership in powerful economic, religious or civil society elites.Yet when it comes to democracy, even the individual within the matrix of human rights protections succumbs to the temptations of power politics--those involve factions and the competition for power among great actors, with respect to which the individual is merely a means to an ends. Individual rights may be important in the aggregate, and in theory, but individuals become important for the vindication of those rights only when it suits the greater interests of the powerful civil, economic, religious, social and political actors all of whom seek power, today through the mechanics of legitimacy, ethics, rights and dignity. In that context, the individual may have only fair weather friends in government apparatus and civil and religious society protectors. For individuals to rise to the attention of these great actors, "ya gotta have a gimmick," as the Americans say. See Stephen Sondheim, Gypsy, "Ya Gotta Have a Gimmick" (music by Jules Styne) (1962) (song number in which strippers explain to the future Gypsy Rose Lee the way to distinguish oneself from the crowd, " Get yourself a gimmick and you too, Can be a star!").
But there are conceptual traps as well. Democracy is an ideal--inchoate, undefined--a vision of the holy City on the hill. But human rights? Now that is something that people can get their arms around--that is law--simple, specific binding, the product of a legitimating act of will. For democracy, then a proxy--human rights. And for the legitimacy of human right--the customs and understandings of the community of states, on which the legitimacy of any governance system must rest. And thus, in its own way, Human Rights Watch serves the cause of transnational constitutionalism while it serves to strengthen its own place as a first citizen among the global community of institutional citizens who, like states, compete for the loyalty and affection of the individual through the production of foundational values and standards. Yet, here, precisely is the danger for Human Rights Watch--to the extent that the legitimacy of its own foundational standards--secular global human rights norms as articulated in a variety of instruments--is rejected, so might its notions of the dangers of sham democracy as tied to voting. And that is what many states will tend to do, as they seek other value systems to legitimate and elaborate their own forms of governance. See Larry Catá Backer, "God(s) Over Constitutions: International and Religious Transnational Constitutionalism in the 21st Century," Mississippi Law Review, Vol. 27, 2008 .
Still, Human Rights Watch raises an interesting point worth exploring in a little more depth--the nature of sham elections. This raises a set of interesting and troubling questions on the relation between power. Let me sketch some out here. The first touches on the nature of political power expressed through elections. I start with Foucault:
Power has an erotic charge. . . Nobody loves power anymore. This kind of affective, erotic attachment, this desire one has for power, for the power that is exercised over you, doesn't exist any more. The monarchy and its rituals were created to stimulate this sort of erotic relationship towards power. The massive Stalinist apparatus, and even that of Hitler, were constructed for the same purpose. But it has all collapsed in ruins and obviously you can't be in love with Brezhnev, Pompidou or Nixon. . . But what's going on at the moment? Aren't we witnessing the beginnings of a re-eroticization of power, taken to a pathetic, ridiculous extreme by the porn shops with Nazi insignia that you can find in the United States and (a much more acceptable but just as ridiculous version) in the behavior of Giscard d'Estaing when he says, 'I'm going to march down the streets in a lounge suit, shaking hands with ordinary people and kids on half-day holidays'?Michel Foucault, Film and Popular Memory, in Foucault Live (Interviews, 1966-84) 97-98 (Martin Jordin, trans., New York: Semiotext(e), 1989). For all the fine talk, do elections reduce themselves to personality--and as the "restoration to power of seduction." Certainly, there is a sense that, even in mature democracies, democratic organization i becoming associated more with transfers of power within a hierarchical system than the conferring of governance responsibilities from among a group of equals. Sham is clear enough when power removes its masks--Mugabe's Zimbabwe provides the crudest current example. But there are others. But the nature of power itself must be unmasked in order to be able to better understand the more subtle nature of sham within systems in which the populace appears to be moving from a parity among equals (even if only in theory) to a more clearly marked hierarchy of worthies).
The second touches on the distribution of power. Madison warned early on in the march toward democracy that there were significant distinctions between democratic and republican governments. See Federalist No. 14. Mindful of Aristotle's hesitation about direct democratic governance combined with issues of technological impossibility, the Americans were quick to suggest elections as necessary to select some from among themselves to exercise power for all. Elections were the key to this system and its legitimacy. But among whom? Democratic legitimacy, even within republics, was traditionally defined within very narrow frameworks. From restrictions to men of property, the right to participate in the governance of democracies (whether organized as princely states or as representative republics), democracy has come to mean one person one vote at least since the 1960s. See Baker v. Carr, 369 U.S. 186 (1962). Indeed, it has been less than a century since democracy was extended to the masses (starting with minor property owners and women), and with curious results. As Edward Hallett Carr noted over half a century ago (Edward Hallett Carr, Nationalism and After 6-37 (London: MacMillan & Co., Ltd., 1945) national socialism (in all its senses) followed the democratization of politics at the end of the 19th century.
The rise of the new social strata to full membership of the nation marked the last three decades of the 19th century throughout western and central Europe. . . . The 'democratization' of the nation in the earlier part of the century had resulted in the establishment of popular control over the functions of maintaining law and order, guaranteeing the rights of property and in general, 'holding the ring' for the operations of an economic society managed and directed from another centre under rules of its own. The 'socialization' of the nation which set in towards the end of the century brought about a far more radical change. Hitherto, . . . the masses had had little power to protect themselves against the immense hardships and sufferings which laissez faire industrialism imposed on them. Henceforth, the political power of the masses was directed to improving their own social and political lot. The primary aim of national policy was no longer merely to maintain order and conduct what was narrowly defined as public business, but to minister to the welfare of members of the nation and to enable them to earn their living.Id., at 18-19. The nature of democracy, thus, may not be bound up in human rights, but in the use of the state to maximize the welfare of those in control of its apparatus. Democratization, thus moves from an effort to share power of governance to the devolution of power over the machinery for the production of wealth from one set of actors to a host of others. Accountability acquires another meaning. And government ceases to be a means by an end to wealth and control. In this sense one can understand Shona willingness to tolerate a government that shared the wealth with them by depriving Europeans but especially the Ndebele peoples of Zimbabwe an equal stake. And why should they? Here there is a place for human rights--but ironically it assumes an anti democratic quality.
The third touches on the assertion of power. In this aspect, elections provide a basis There was a time when the state apparatus asserted only a limited power. There was something superior to its authority. But what, exactly, are the masses approving when they are moved to vote? At one time voting provided the formalist sham through which imperial power was said to have been vested in a Roman emperor by the people. And this sort of transfer by vote or acclamation--and the delegation of the power to choose successors to the prince himself later on--all suggest that voting, the partucupaiton of the masses, is an important though not necessarily always a sufficient basis for democratic governance or the protection of rights. At other times voting an be used to effectively limit such transfers. Power can be accumulated, distributed and given away by acts of the sovereign itself. But power cannot determine the locus of authority. But power can be asserted form below as well. That, of course, is what the current rhetoric about elections is to some extent about. The so-called power to vote, asserted by an individual, is meant to convey a powerful force in participatory democracy. That power, however, suggests two perversities--the first is the importance of fertility, and the second is the consequences if immigration. Voting suggests assertion of power by voters. The more voters within a particular block the more likely that an election will swing to that group. The smaller the group the fewer the votes. It also suggests the power of immigration in states with decreasing birth rates. When coupled with modern sensibilities about assimilation, democracy through voting in an open immigration context suggests the power to change government radically by means other than voting.
And the last and most troubling, to which the earlier questions pointed toward, touches on the distorting effects of mass politics. It is here at all theory comes crashing down. It is at this level that one is confronted by the impossible--the intersection of hierarchy, subordination and the mapping of relationships among people in a world in which theory seeks a leveling effect and all efforts at elaboration produces vertical effects. And worse, all elaboration produces vertical effects at the level of the individual and at the level of the masses. Here, the practicalities of Madison (Federalist No. 10 on factions) collides with the allure of Jeffersonian theory (Declaration of Independence). Mass politics suggests the opposite of the second point--the votes matter. n the aggregate they do, but no much because of individual choices but because of the ability of modern institutions to draw on those group affiliations for the purposes of manipulating sentiment in particular directions. The individual no longer matters, the small institutional groups that might move aggregates groups of voters to act in particular ways matter most. Groups like Human Rights Watch matter because they can seek to influence votes--to delver votes among particular constituencies, and at least to amplify the voices of those constituencies. It suggests that well organized small groups may be more important that large numbers of potential voters. That the active rather than the passive principles triumphs--at least when it comes to elections. Just as the apparatus of state seeks to corrupt voters by delivering state goods to them in the form of wealth transfers and legislative benefits, so civil society elements seek to influence voters by suggesting that aggregations of power, through their leadership, will make it more likely that individual voter voices will be heard.
So what is a sham democracy? The easy cases identified by Human Rights Watch, are just that, easy. But the easy cases, the ones identified by Human Rights Watch, are merely exaggerations of the worst characteristics of democratic organization as currently practiced. Still, not just merely; the exaggerations are important. Human Rights Watch clearly makes the simplest of points--that mere formalism is not enough for those who seek the benefits of democratic legitimacy for their state apparatus. But this is a lessen well learned during the era of Soviet and Maoist politics through the 1980s. But the lack of exaggeration does not make for perfect systems. It does not even suggest an ideal. Democracy, republic, universal suffrage, or something else. Even deep democracies are always close to the precipice of formalism. And the nature of democratic governance is itself unstable and subject to perversities involving the selection and vetting of political candidates. For Human Rights Watch, the answer to these complications is simple--voting becomes a metaphor for adherence to a set of universal human rights. Yet the consequential juridification of politics and the binding effect of international law enacted by a different set of participants in the law making process, also suggest a diminished importance of voting itself--for the institutions for which all this voting is to be effected, at least under the system envisioned by Human Rights Watch, would product a substantially diminished role for the states that are the focus of voting and its accountability effect.