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The Right to Democracy in a Populist Era

  • Bojan Bugarič (a1)
Extract

Thomas Franck's “emerging” right to democracy seems to be entering turbulent times, as the current global democratic recession has undermined the optimism of the 1990s. The greatest paradox of the current populist wave is that democracy is being subverted by leaders promising more, not less, democracy—but it is a democracy of a different kind. Populists embrace the “form” of democracy and claim to speak for the people themselves. At the same time, however, by undermining its liberal constitutional foundations, they erode the substance of democracy, and gradually transform it into various forms of illiberal and authoritarian regimes.

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This is an Open Access article, distributed under the terms of the Creative Commons Attribution licence (http://creativecommons.org/licenses/by/4.0/), which permits unrestricted re-use, distribution, and reproduction in any medium, provided the original work is properly cited.
References
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1 See Thomas Franck, The Emerging Right to Democratic Governance, 86 AJIL 46 (1992).

2 Martin Eiermann et al., European Populism: Trends, Threats, and Future Prospects, Inst. Global Change (Dec. 29, 2017).

4 Ozan O. Varol, Stealth Authoritarianism, 100 Iowa L. Rev. 1673, 1685 (2015).

5 Javier Corrales, The Authoritarian Resurgence: Autocratic Legalism in Venezuela, 26 J. Dem. 37 (2015).

6 For a comprehensive overview of the EU legal approaches to Poland and Hungary, see Laurent Pech & Kim Lane Scheppele, Illiberalism Within: Rule of Law Backsliding in the EU, 19 Cambridge Y.B. Eur. Leg. Stud. 3 (2017).

7 Consolidated Version of the Treaty on European Union art. 7, Dec. 13, 2007, 2012 O.J. (C 326) 1.

8 The Commission acted quickly against Poland because its ruling party (Law and Justice-PiS) is allied with the more marginal European Conservatives and Reformists (ERC) party.

9 Case C-286/12, Commission v. Hung., ECLI:EU:C:2012:687 (Nov. 6, 2012).

10 Jan-Werner Müller, Should the EU Protect Democracy and the Rule of Law Inside Member States?, 21 Eur. L.J. 148 (2015).

12 Gary Clyde Hufbauer et al., Economic Sanctions Reconsidered (3d ed. 2009).

13 Kenneth Rogoff, Do Economic Sanctions Work?, Project Syndicate (Jan. 2, 2015).

14 Erin K. Jenne & Cass Mudde, Can Outsiders Help?, 23 J. Dem. 150 (2012).

15 For a similar argument, see Eric A.Posner, The Twilight Of Human Rights Law 106 (2014).

16 R. Daniel Kelemen & Mitchell A. Orenstein, Europe's Autocracy Problem: Polish Democracy Final Days?, Foreign Aff. (Jan. 7, 2016).

17 R. Daniel Kelemen, Europe's Other Democratic Deficit: National Authoritarianism in a Democratic Union, 52 Gov't & Opposition 211 (2017).

18 See Aziz Huq & Tom Ginsburg, How to Lose a Constitutional Democracy, 65 UCLA L. Rev. 4 (2018).

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