Saturday, September 14, 2019

Paper Posted for Comment: Larry Catá Backer and Flora Sapio, "Popular Consultation and Referendum in the Making of Contemporary Cuban Socialist Democracy Practice and Constitutional Theory"

(Pix © Larry Catá Backer 2017)

Flora Sapio and I are delighted to share with those interested the draft of our essay, Popular Consultation and Referendum in the Making of Contemporary Cuban Socialist Democracy Practice and Constitutional Theory. A later version will be published in the University of Miami International & Comparative Law Review, Vol. 27, 2020. 

The paper is part of a larger project in which we try to theorize principles of endogenous democracy embedded in Marxist-Leninist political-economic models, and its potential influence on the constitutional development of states not deeply embedded in the traditions and cultures of Anglo-European liberal democracy. To that extent, we seek to conceptualize a system that may drive democratic and constitutional discourse in opposition to or beyond the parameters within which the discussion of such possibilities had been limited by the core principles of liberal democratic political models. This is not to suggest the value of the systems conceptualized, but merely their coherence, and potential compatibility with emerging political systems. It may also help explain the power of the political model offered through China's Belt and Road Initiative as a counter to the traditional expectations of conventional economic (and political) globalization based on liberal democratic political principles, markets driven governance, and cultures of risk mitigation and compliance. 

The paper examines the way in which the Cuban vanguard party sought to weave two early efforts at distinguishing their model from bourgeois democratic practice into a distinctive means of embedding popular participation--well managed to be sure--in the new governance model.  The first of these was the practice of popular affirmation: The second of these was direct popular engagement in the drafting of core policies and governance instruments.  Together they represent a Cuban variant on the efforts of Marxist Leninist States to try to develop an endogenous democratic alternative to the traditional forms of exogenous democracy practiced in liberal democratic states (and ironically to avoid the personality driven politics that has come to dominate those systems). The effort is not without its challenges, and the model is not without its flaws; these are considered as well.  This paper is a companion to a recently circulated paper, "Popular Participation in the Constitution of the Illiberal State—An Empirical Study of Popular Engagement and Constitutional Reform in Cuba and the Contours of Cuban Socialist Democracy 2.0"

The Abstract and Introduction follow.  We appreciate any comments or constructive engagement. 

Abstract: The language of democracy and democratic organization is usually spoken only in the vernacular of liberal democracy. Liberal democracy, mostly of western origin centers legitimacy of a political order on open, full, and free election for representatives, as well as a substantially unregulated civic space in which individuals and others can engage in political discourse. This essentially exogenous form of democratic organization has been increasingly challenged in the 21st century by an alternative model of endogenous democracy more compatible with states organized along Marxist Leninist principles. These emerging forms of endogenous democratic practices have been developed along two distinct lines, one embedded in developing principles for Chinese Marxism-Leninism, and the other grounded in the history and context of Cuban Leninism. While adherents to orthodox principles of liberal democracy have rejected any efforts to consider the plausibility of Marxist-Leninist democratic practice (principally because it requires suspension of the core operating principles of liberal democracy, though not its effects), these emerging alternative forms of democratic organization are worth serious study, if only because of their potential influence on the development of the optimal model of developing states. This article focuses on the development, since the 1959 Revolution, of a Cuban version of Socialist Consultative Democracy.
The article traces the origins of the contemporary expression of Cuban Socialist Consultative Democracy in two early attempts by the revolutionary government to transform the practices of bourgeoise democracy into something different. These attempts, one at direct popular affirmation of leadership policies, and the other an institutionalized system for popular consultation, emerged in new forms after 2011 and have found their most complete expression in the complex processes of popular consultation and popular affirmation that marked the Cuban constitutional reform process of 2018-2019. What makes this particularly interesting is the way that it may provide a glimpse at the development of a set of practices (and the theory seeking to legitimate its forms) that might provide other developing states with an alternative path to democratic engagement that minimizes the risks of traditional liberal democratic practice. The article starts with context, considering the contours of the fundamental problem of ordering democracy and its compatibility with the political model for illiberal states. It then turns to the development of what will become Cuban Socialist Democratic models. To that end, it looks to the two principal sources from which these principles were developed. The first is the development of mechanisms for popular affirmation of the actions of the vanguard party; the second is the development of models of popular consultation under the guidance of the vanguard party and structured through a representative assembly. Taken together, these two elements contributed to the production of the initial or 1.0 version of Cuban Socialist Consultative Democracy. The article then considers how that more primitive model developed (along with Cuban Leninist theory) under the leadership of Raúl Castro from 2011. It traces the pragmatic and theoretic developments from early efforts around the development of the Guidelines for Reform of 2011, through the articulation of a new political and economic model in 2016, and then emerging in its current 2.0 form in the elaborate process of popular consultation and affirmation of the 2019 Cuban Constitution. The paper covers the challenges, contradictions, and potential for this endogenous form of democracy.

I. Introduction:

The 2019 Cuban Constitutional reform made very public a development that had been ongoing in Cuba for almost a decade before.[3] That development involved the transformation of Leninism[4] in a way that made a space—however, tentative—for the participation of the collective in the implementation of the fundamental political and economic line developed under the leadership of the vanguard party which served as the “core” of political authority.[5] The development of a transformed theory of collective and core within Leninist theory has marked one of the most remarkable changes in Marxist-Leninist theory since the development first of radical collectivity under Mao Zedong’s Cultural Revolution.[6] That was followed by the equally radical technocratization of the vanguard apparatus which sought to express the popular collective through an organized and responsive set of representative state and non-state organs.[7] It was this technocratization and institutionalization of consultation that has marked the development of Chinese approaches since the time of the Reform and Opening Up era of Deng Xiaoping’s socialist modernization gloss on Leninist collectivity.[8] The result of these transformations has been felt within the expression of constitutions and constitution making.[9] But this is constitution making of a very different sort, and one seeking, in its own way, to develop structures and principles of democratic governance that accord with foundational principles of political organization incompatible with those of liberal democratic states and the national cultures it advances.

In some sense, all such approaches to democratic ordering must deal with the management of the relationship of leadership “cores,” and of the “collectives” they serve.[10] For Marxist Leninist systems, that relationship is also centered on a dual set of cores and collectives; but here the core is also a vanguard party in which all political authority is vested, but which as a consequence owes its legitimacy to its ability to fulfill its ideologically mandatory responsibilities to the collectives they serve.[11] This clearly is not democracy in the sense that it is understood in liberal democratic states.[12]

Constitutionalism, as the newspapers announce, has become the commanding ideology of our time. The principal alternative model, Communism, is dead, and political leaders who used to wave the banner of "socialism" to justify authoritarian repression and human rights violations are silenced. Virtually every state now has a constitution, and every political leader proclaims commitment to constitutionalism, to the rule of law.[13]

Rather in the enhancement of popular participation among those who do not belong to the vanguard party. That participation is connected to an enhanced role in the implementation and organization of the administrative apparatus of the state and the implementation of political goals and objectives that have been developed under the leadership of the vanguard. Within Marxist-Leninist political organizations, it does represent a significant opening meant to permit popular engagement without appearing to signal an (inevitable) movement toward liberal democratic organization.[14] And, of course, that move toward popular participation has been the great challenge of post-Soviet Leninism—to develop a robust theory of democratic engagement that is sui generis and nationally contextual—without at the same time appearing to be just another sad effort to veil an anti-democratic apparatus (the great failing of the Soviet experiment[15] and the great peril for China.[16] For China, the evolution of Leninist theory toward popular participation has involved the development of the core-collective binary, mediated through the political theory of the “mass line” (from the people, to the people),[17] as a political foundation for the exercise of leadership by the vanguard.[18] For Cuba, that movement toward democratic ordering has taken its Leninist system in a different direction. It is that difference in direction and its connection to principles of popular participation in governance that serves as this essay’s the object of examination.

This effort toward the construction (at least in theory) of a socialist democracy (the preferred term among its users), of course, ought not to be understood as a variation of a lurch toward democracy[19] within the structures and world views of liberal democracies. The fundamental at the core of liberal democratic theory that all systems must inevitable transition to liberal democratic principles as the highest expression of political community,[20] tends to serve as the lens through which Chinese political and legal theory is understood in the West.[21] It informs approaches to Cuban engagements with the application of democratic principles within the confines of its own normative principles.[22]

Cuba, usually considered a backwater for the development of robust Leninist theory, or at least merely a quixotic Caribbean variant of East German Sovietism,[23] has since 2011 proven to be increasingly adept at incorporating aspects of theoretical developments of post-Soviet Marxist-Leninist constitutionalism.[24] More importantly it has appeared successful, despite substantial resistance from its political enemies abroad, in developing mechanisms for its implementation through three cycles of political-economic development in the post Fidel Castro Era.[25] It has also done so despite a singular lack of the sort of robust theoretical discussions within its own Communist Party apparatus that has marked developments in China. Ironically, the roots of Cuba’s own journey toward a form of institutionally embedded popular participation (again incomprehensible when measured by the premises of Western liberal democracy), lie in the practices of the Revolutionary government before it became formally Leninist. These roots, grafted onto the structures of formal consultation built into the state apparatus after the first Cuban Communist Party Congress, have, since 2011, opened the door to what may be understood now as Cuba’s efforts at Socialist Consultative Democracy 2.0.

It is in that context that the question of the extent to which Cuba's authoritarian State is changing or, within some meaningful context, changing, and by changing inching toward democracy, becomes more interesting. The answer to this question is ‘Yes!’—but on its own terms.[26] The answer is also ‘No!,’ if measured against the principles and expectations of liberal democracy.[27] To that end, consider the early efforts of the post-revolutionary regime to develop structures of mass democratic participation under the guidance of a leadership core. If we consider the effects of institutionalizing this mechanism for popular participation in the tightly managed National Assembly of Popular Power. These together, we will suggest, constitute Cuba’s efforts to construct an initial form of Socialist Consultative Democracy (the initial or 1.0 version); an effort that suffered from its own internal failings and contradictions. We will then turn to the efforts to build on this architecture after 2011 to develop a revised version that drew on part practice and experiments and reorganized them in a distinctively systematic way. This is what we have called Cuba’s Socialist Consultative Democracy 2.0,[28] the most refined expression of which was evidenced in the Cuban Constitutional Reform processes of 2018-2019.

We note that the conception of the problem posited, and its conceptual evolution that follows is highly theoretical, though hopefully not entirely abstract. More importantly, as we will try to shopw, the conceptualization of the problem has generated a substantial amount of practical approaches but is still in search of a unifying theory compatible with the Cuban political-economic model it is meant to serve. We hope to take a step in that direction here. To take that step requites, at its core, the recognition of a possibility, within Marxist-Leninist political organization, that democratic expression might be built along quite different lines than that deemed inevitable under the principles of Western liberal democracy. That is, that at least in theory, it is possible to try to construct system of endogenous democracy—grounded in the practice of consultation and approbation—in contradistinction to principles of exogenous democracy on which Western liberal democracies are founded. Sadly, for Cuba, this theory remains (as it tends to in Marxist-Leninist systems) far ahead of practice.

[1]Member, Coalition for Peace & Ethics; W. Richard and Mary Eshelman Faculty Scholar Professor of Law and International Affairs, Pennsylvania State University ( Earlier versions of this essay were first presented at the 29th Association for the Study of the Cuban Economy Annual Conference 2019 for the Panel: “Is Cuba's Authoritarian State Changing: Can It Inch to Democracy?” (Chair: Gary Maybarduk, U.S. Department of State (retired), and at Dalhousie University Schulich School of Law faculty workshop (September 2019), with thanks to Sara Seck, and then presented at Penn State Law for a speaker series sponsored by the Penn State Journal of Law and International Affairs (October, 2019). My thanks to the participants, and especially to Jorge Dominguez (Harvard University, retired) for excellent comments and analysis. Special thanks to my research assistant, Brandon Ruggiero (SIA, MIA expected 2021) for his excellent research and editing.

[2] Member, Coalition for Peace & Ethics, Research Faculty, Research Faculty Università degli Studi di Napoli L’Orientale (Napoli, Italia).

[3] Mervyn Bain, Cuba’s New Constitution is Embodiment of Island’s Unique Brand of Politics, The Globe Post (8 March 2019). Available,

[4] Though the terms Marxism and Leninism are often used together, almost as a single concept, they are actually quite distinct concepts. Marxism might most usefully be understood as the normative foundations of political systems grounded in in a rejection of mass individual ownership of capital and of political systems meant to privilege this centering of the division between capital ownership and labor. For the well-known but arguably little read classic first contemporary iteration, see, Karl Marx, Capital (Volume 1: A Critique of Political Economy) (Friedrich Engels, ed., Samuel Moore, Edwards Aveling, and Ernest Untermann, trans., 2017 ()1867). Marxism itself has undergone substantial development since its initial development by Karl Marx from an explanation of the sociology and politics of economic organization to a set of fundamental normative principles through which system (with substantial contextual variation) of a political-economic model for the organization of states could be undertaken. Leninism on the other hand speaks to the political system necessary to replace the system of individual capital ownership and the principles for control of the political-economic apparatus of state by a revolutionary vanguard to prepare individuals for the establishment of a society grounded in Marxist normative principles. See, generally, Leszek Kolakowski, Main Currents of Marxism 661-686, 730-777 (P.S. Falla, trans., 2005).

[5] See, Larry Catá Backer, Cuba’s Caribbean Marxism, (2018).

[6] See, e.g., Jiang Shigong, ‘Philosophy and History: Interpreting the “Xi Jinping Era” through Xi’s Report to the Nineteenth National Congress of the CCP’ ["哲学与历史—从党的十九大报告解读“习近平时代” [] The China Story (Australian Centre on China in the World (CIW) at the Australian National University ) (11 May 2018) (Translation by David Ownby. Notes by Timothy Cheek and David Ownby) Permalink HERE); considered in Larry Catá Backer, Reflections on Jiang Shigong on ‘Philosophy and History: Interpreting the “Xi Jinping Era” through Xi’s Report to the Nineteenth National Congress of the CCP’ [ 哲学与历史 —从党的十九大报告解读“习近平时代” 强世功 ], Law at the End of the Day (3 June 2018). Available

[7] On the reform of the Chinese Communist Party in the era after Mao Zedong, see, e.g., Joseph Fewsmith, Studying the Three Represents, China Leadership Monitor, No.8 Available

[8] See, e.g., Hu Angang, China in 2020: A New Type of Superpower (2011).

[9] On constitutions and constitution making in illiberal and Marxist-Leninist States from a conventional liberal democratic perspective see, e.g., Tom Ginsburg and Alberto Simpser, Constitutions in Authoritarian Regimes (Cambridge University Press, 2014); Mark Tushnet, Authoritarian Constitutionalism, 100 Cornell Law Review 391 (2015). For a different perspective, see, e.g., Tong Zhiwei, Right, Power, and Faquanism; A Practical Legal Theory from Contemporary China (Brill, 2018); Larry Catá Baker, Party, People, Government, and State: On Constitutional Values and the Legitimacy of the Chinese State-Party Rule of Law System, 30(1) Boston University International Law Journal 331-408 (2012).

[10] On the issue of representation in liberal democracies, see, e.g., John Gastil, By Popular Demand: Revitalizing Representative Democracy Through Deliberative Elections (University of California Press, 2000) (“There are two fundamental problems in American politics. The first is that most Americans do not believe that elected officials represent their interests. The second is that they are correct.” Id., p. 1); and generally, Nadia Urbinati, Representative Democracy: Principles and Genealogy (U. Chicago Press, 2006). See, also e.g., Alessandro Bonnano, The crisis of representation: the limits of liberal democracy in the global era, 16(3) Journal of Rural Studies 305 (2000). On the issue of leadership cores and their relationship to collectives in illiberal systems, see, e.g., William Case, Politics in Southeast Asia: Democracy or Less? 245-263 (Routledge, 2002); Xiaowei Zang, 35-54 (Routledge, 2004). The issue is ancient in the West. See, e.g., Josiah Ober, Mass and Elite in Democratic Athens (Princeton University Press, 1989); Walter Struve, Elites Against Democracy: Leadership Ideals in Bourgeois Political Thought in Germany 1890-1933 (Princeton University Press, 1973).

[11] The problem of legitimacy in a political system guided by a vanguard core under principles of Leninist institutional organization touches on the sensitive issues of “cults of personality.” On cults of personality in the Soviet Union and Eastern Europe, see, Carol Strong & Matt Killingsworth Stalin the Charismatic Leader?: Explaining the ‘Cult of Personality’ as a Legitimation Technique, 12(4) Politics, Religion & Ideology 391-411 (2011). Most interesting is Soviet self-awareness of the issue. See, famously, Nikita Khrushchev, Speech to 20th Congress of the C.P.S.U. (February 24-25 1956) available (denouncing the decades long cult of personality around Stalin; “While ascribing great importance to the role of the leaders and organizers of the masses, Lenin at the same time mercilessly stigmatized every manifestation of the cult of the individual, inexorably combated [any] foreign-to-Marxism views about a “hero” and a “crowd,” and countered all efforts to oppose a “hero” to the masses and to the people.”). On cults of personality in China and Vietnam, see, Jeremy T. Paltiel, The Cult Of Personality: Some Comparative Reflections on Political Culture in Leninist Regimes, 16(1–2) Studies in Comparative Communism 49-64 (1983), Hu, Angang Chinese Collective Leadership. (Beijing: The people’s University Press, 2013); Larry Catá Backer, Crafting a Theory of Socialist Democracy for China in the 21st Century: Considering Hu Angang’s Theory of Collective Presidency in the Context of the Emerging Chinese Constitutional State, 16(1) Asian-Pacific Law and Policy Journal 29-82 (2014). and perhaps more critically, Luwei Rose Luqiu, The Reappearance of the Cult of Personality ibn China 2016, 33(4) East Asia 289–307 (2016).

[12] See, e.g., Louis Henkin, Constitutionalism, Democracy and Foreign Affairs, 67 Indiana Law Journal 879 (1992).

[13] Id., 885

[14] See, e.g., Larry Catá Backer, Chinese Constitutionalism in the ‘New Era’: The Emerging Idea and Practice of Constitution in the Wake of Xi Jinping’s Report to the 19th Chinese Communist Party, Connecticut Journal of International Law 33(2):163-213 (2018).

[15] See, e.g., Leszek Kolakowski, Main Currents of Marxism 849-881 (P.S. Falla, trans., 2005).

[16] See, e.g., Shannon Tiezzi. The Mass Line Campaign in the 21st Century, The Diplomat (27 Sept. 2013) (noting the danger of ideological campaigns becoming ritualized or a foprmality). Available

[17] See, e.g., Graham Young, On the Mass Line, 6(2) Modern China 225-240 (1980.

[18] See, e.g., Larry Catá Backer, Jiang Shigong 强世功 on “Written and Unwritten Constitutions” and Their Relevance to Chinese Constitutionalism, 40(2) Modern China 119-132 (2014).

[19] Carl Gershman, The New Fight: Cuba and the Movement for Democracy, World Affairs Journal (Feb. 2916); Antonio Rodiles and Erik Jennische, The Mirage of Transition in Cuba, Economic Development Bulletin No. 30 (Cato Institute, 27 June 2018); Darren Hawkins, Democratization Theory and Nontransitions: Insights From Cuba, 33(4) Comparative Politics 441-461 (2001).

[20] For purposes of this essay no position is taken on the validity of these premises or the value of this belief. The point, worth emphasizing here, is that ideology tends to color analysis of systems grounded in what to its believers might be equally compelling ideological principles wholly incompatible to those of liberal democracy.

[21] See, e.g., Tom Ginsburg & Yan Lin, Constitutional Interpretation in Lawmaking: China's Invisible Constitutional Enforcement Mechanism, 63 American Journal of Comparative Law 467 (2015).

[22] See, Is Cuba on the Verge of Democratic Reform? The Washington Post (5 March 2015). Available

[23] See, e.g., Larry Catá Backer, Central Planning Versus Markets Marxism: Their Differences and Consequences for the International Ordering of State, Law, Politics, and Economy, 32(1) Connecticut Journal of International Law 1-47 (2016).

[24] Again, these terms are not meant to be understood in their sense within a liberal democratic political model. They are meant, instead, to express the possibility of the recognition and development of democratic principles within the structures of Marxist Leninist political model. For a discussion in the context of Chinese Marxist Leninist constitutionalism, see, Larry Catá Backer, Party, People, Government, and State: On Constitutional Values and the Legitimacy of the Chinese State-Party Rule of Law System, 30(1) Boston University International Law Journal 331-408 (2012).

[25] See, e.g., Ramón I. Centeno, The Cuban Regine After a Decade of Raúl Castro in Power, 9(2) Mexican Law Review 99-126 (2017); Carmelo Mesa-Lago and Jorge Pérez-López, Cuba Under Raúl Castro: Assessing the Reforms (2014); Marc Frank, Chronology: Raul Castro’s Road to Reform in Cuba, Reuters (13 April 2011) available

[26] For useful reflections, see Jorge Dominguez, Constitución y constitucionalismo en Cuba: Introducción al dossier y reflexiones, Cuban Studies 45 (2017): 3-13

[27] For a straightforward consensus description, see Robert Post and Reva Siegal, Democratic Constitutionalism, Constitution Center Whitepaper. Available

[28] Larry Catá Backer, Flora Sapio, and James Korman, Popular Participation in the Constitution of the Illiberal State—An Empirical Study of Popular Engagement and Constitutional Reform in Cuba and the Contours of Cuban Socialist Democracy 2.0, 34 Emory International Law Review – (forthcoming 2019).

No comments: