Hypothesis verification

The term ‘democracy’ derived from Greek demokratia which is a synthesis of demos (‘people’) and kratos (‘rule’). Literally, the term stands for ‘rule by people’ and was coined to describe the political system in some Greek city-states, notably Athens.⁸ In classical antiquity and up to the seventeenth century, democracy was largely associated with the gathering of citizens in assemblies and other public places to decide on political issues of a polity. It was only by the early nineteenth century that the concept acquired its modern meaning, that is democracy as a right of citizens to participate in political life of their country

6 UNGA Res 59/201 (20 December 2004) UN Doc A/Res/59/201, para 1. See also UNCHR Res 32 (2005) UN Doc E/CN.4/RES 2005/32, para 1 (Repeating verbatim the 2004 resolution).

7 Giovanni Sartori, The Theory of Democracy Revisited (CQ Press 1987) 184. See also Niels Petersen, ‘The Principle of Democratic Teleology in International Law’ (2009) 34 Brook J Int’l L 33, 37.

8 Robert A Dahl, ‘Democracy’, Encyclopedia Britannica (2010)

<https://global.britannica.com/topic/democracy> accessed 24 August 2016.

through the medium of elected representatives.⁹ Within the broad discourse on the definition of democracy in political science, it is thus possible to distinguish three principal theories of democracy: classical theory of democracy (or government-centric theory of democracy), procedural theory of democracy (or competitive theory of democracy) and substantive theory of democracy. The former was adopted at the end of the eighteenth century and conceptualised democracy in terms of sources of authority for government (will of the people), purposes served by government (personal development and material goods) and procedures for forming government (political participation, such as e.g. participation in elections).¹⁰ The latter element was subject to restrictive criteria, such as wealth, sex, societal status, birth and education.¹¹ Moreover, liberal political and economic rights formed the cornerstone of thought on democracy within the classical liberal democratic theory. The most prominent representatives of this strand of thought are John Locke, Montesquieu, Adam Smith, Jeremy Bentham and James Mill.¹²

This classical theory of democracy with its premium on government and individual rights was challenged by Joseph Schumpeter. For him, the theory did not provide for clear guidelines as to how to distinguish democratic regimes from non-democratic ones, and democracy from this theoretical perspective bounds, so the story goes, to be rather an ideal than a method.¹³ He wanted to approach democracy not as an ideal ‘utopian’ normative system but as a form of governance with narrow but clear procedural determinants. To assert that democracy entailed ‘the rule of people’ for ‘common good’ was, for Schumpeter, foolish, because people in democracies did not rule, they merely elected their rulers, and because the objective ascertainment of common good was practically impossible. To this end he proposed what he termed ‘another theory of democracy’, which is now commonly viewed as competitive theory.

The ‘democratic method’, he suggested, ‘is that institutional arrangement for arriving at political decisions in which individuals acquire the power to decide by means of a competitive struggle for the people’s vote’.¹⁴ The same position is maintained by another prominent scholar, Samuel Huntington, who argues that

Elections, open, free and fair, are the essence of democracy, the inescapable sine qua non […] Governments produced by elections may be inefficient, corrupt, shortsighted, irresponsible, dominated by special interests, and incapable of adopting policies demanded by the public good. These qualities

9 Norberto Bobbio, Democracy and Dictatorship (Peter Kennealy tr, Polity Press 1989) 144.

10 Samuel P Huntington, The Third Wave: Democratization in the Late Twentieth Century (University of Oklahoma Press 1991) 6. See also Joseph A Schumpeter, Capitalism, Socialism, and Democracy (Harper 1947) 269.

11 See David Held, Democracy and the Global Order: From the Modern State to Cosmopolitan Governance (Polity Press 1995) 9-12.

12 For a more comprehensive account, see Milja Kurki, Democratic Futures: Revisioning Democracy Promotion (Routledge 2013) 32-39.

13 Joseph A Schumpeter, Capitalism, Socialism, and Democracy (Harper 1947) 266, 269.

14 ibid 269.

may make such governments undesirable but they do not make them undemocratic.¹⁵

On this account, democracy has no inherent normative content and is largely about electoral process: people’s participation in political process is reduced to casting a vote once in a circumscribed timespan and resuming the role of passive observers between elections. It can be gauged on the basis of such (empirically verifiable) criteria as universal participation, that is everyone is entitled to participate in elections, both as a voter and as a candidate; majority rule, meaning that decisions are taken by majority; and formal equality (one man, one vote), implying that every vote counts equally. While this theoretical model does not literally refuse to look beyond the institution of elections and recognises the importance of other rights, it endorses these rights inasmuch as they support the right to political participation rather than on their own merit.¹⁶ Importantly, the role of democracy is not even to represent the will of the people, as the theorists of the classical theory of democracy had opined. In Macpherson’s terms, for Schumpeter, ‘[t]he voters’ role is not to decide political issues and then choose representatives who will carry out those decisions: it is rather to choose the men who will do the deciding’.¹⁷ Notably, this thin procedural understanding of democracy has been supplemented by a thick procedural model, also labelled as an ‘expanded procedural minimum’

model,¹⁸ mostly associated with Dahl and his concept of polyarchy,¹⁹ which insists on constitutional guarantees and checks on the exercise of executive power as well as the government’s capability to rule effectively.²⁰

Thus, till the 1970s the debate was enduring between the adherents of the classical ‘value-based’ approach, equating democracy with source or purpose, and those subscribing to procedural understanding à la Schumpeter. That latter school eventually won the battle given the analytical precision and empirical

15 Samuel P Huntington, The Third Wave: Democratization in the Late Twentieth Century (University of Oklahoma Press 1991) 9-10. See also Adam Przeworski and others, ‘What Makes Democracies Endure?’ (1997) 7 Journal of Democracy 39, 50-51.

16 Jure Vidmar, Democratic Statehood in International Law (Hart Publishing 2013) 17.

17 Crawford Brough Macpherson, The Life and Times of Liberal Democracy (OUP 1977) 78.

18 David Collier and Steven Levitsky, ‘Democracy with Adjectives: Conceptual Innovation in Comparative Research’ (1997) 49 Wld Pol 430, 434.

19 Dahl coined this term in 1953 to refer to a modern representative democracy with universal suffrage. Because a fully-fledged democracy is not practically possible in the modern world, where everyone would have a genuinely equal possibility to partake in political decisionmaking and where government would be fully responsive to the concerns of the whole citizenry, Dahl employed the term ‘polyarchy’ to designate the more limited form of democracy that is realistically feasible. Robert A Dahl, Polyarchy: Participation and Opposition (Yale UP 1971) 90, 97.

20 See eg David Collier and Steven Levitsky, ‘Democracy with Adjectives: Conceptual Innovation in Comparative Research’ (1997) 49 Wld Pol 430, 434. Similar distinction was also developed by Riker who established a gradation between two procedural versions of democracy:

populism (thin) and liberalism (thick). William H Riker, Liberalism against Populism (Freeman 1982). The distinction drawn by Meny and Surel between popular democracy and constitutional democracy is also illustrative of this trend. Yves Meny and Yves Surel, Democracies and the Populist Challenge (Palgrave Macmillan 2002) 7-11.

verifiability of the procedural model.²¹ Yet, Schumpeterian conception quickly attracted multifarious criticisms.²² Terry Karl called the model in question a

‘fallacy of electoralism’ by pinpointing to the fallacious privileging of the electoral side of democracy over other vital dimensions, failure to account for the dangers of majoritarianism and the lack of the real control of citizenry over political decisions affecting their lives.²³ Other scholars characterised minimalist democracy as an ‘apology for exclusionary government power’²⁴ and as an ‘euphemism for sophisticated modern forms of neo-authoritarianism’,²⁵ which are denominated by political scientists in a variety of ways, including such qualifiers as semi-democracy, formal democracy, electoral democracy, facade democracy, pseudo-democracy, hybrid democracy, illiberal democracy, virtual democracy, delegative democracy, competitive-authoritarian regime, soft authoritarianism and electoral authoritarian regime.²⁶ As Susan Marks succinctly observed, ‘[i]mportant though the institutions and procedures of representative democracy clearly are, they cannot be allowed to exhaust the meaning of democracy. To permit this is to give up on the idea that democracy is about self-government, and not just

21 Samuel P Huntington, The Third Wave: Democratization in the Late Twentieth Century (University of Oklahoma Press 1991) 6-7.

22 See, inter alia, Terry Karl, ‘Imposing Consent? Electoralism versus Democratization in El Salvador’ in Paul Drake and Eduardo Silva (eds), Elections and Democratization in Latin America, 1980-1985 (Center for US/Mexican Studies 1986) 9-36; Susan Marks, ‘The “Emerging Norm”: Conceptualizing “Democratic Governance”’ (1997) 91 ASIL Proc 372, 373; Susan Marks, The Riddle of All Constitutions: International Law, Democracy and the Critique of Ideology (OUP 2000) 59-60; Brad R Roth, ‘Evaluating Democratic Progress’ in Gregory H Fox and Brad R Roth (eds), Democratic Governance and International Law (CUP 2000) 495;

Richard Burchill, ‘The Developing International Law of Democracy’ (Review Article) (2001) 64 MLR 123, 125-26; Giovanni Sartori, ‘How Far Can Free Government Travel?’ in Larry Diamond and Marc F Plattner (eds), Democracy: A Reader (The Johns Hopkins UP 2009) 50.

23 Terry Karl, ‘Imposing Consent? Electoralism versus Democratization in El Salvador’ in Paul Drake and Eduardo Silva (eds), Elections and Democratization in Latin America, 1980-1985 (Center for US/Mexican Studies 1986) 9-36

24 Richard Burchill, ‘The Promotion and Protection of Democracy by Regional Organizations in Europe: The Case of Austria’ (2001) 7 EPL 79, 81.

25 Barry Gills, Joel Rocamora and Richard Wilson, ‘Low Intensity Democracy’ in Barry Gills, Joel Rocamora and Richard Wilson (eds), Low Intensity Democracy: Political Power in the New World Order (Pluto Press 1993) 21.

26 For a detailed discussion on a variety of regimes that hold periodic elections but fall short of providing meaningful political participation and protection of human rights, see eg Fareed Zakaria, ‘The Rise of Illiberal Democracy’ (1997) 76 Foreign Aff 22; David Collier and Steven Levitsky, ‘Democracy with Adjectives: Conceptual Innovation in Comparative Research’

(1997) 49 Wld Pol 430, 430-31; Larry Diamond, ‘Thinking about Hybrid Regimes’ (2002) 13 Journal of Democracy 21, 23; Thomas Carothers, ‘The End of the Transition Paradigm’ (2002) 13 Journal of Democracy 5, 9-10; Steven Levitsky and Lucian A Way, ‘The Rise of Competitive Authoritarianism’ (2002) 13 Journal of Democracy 51; Andreas Schedler, ‘The Menu of Manipulation’ in Larry Diamond and Marc F Plattner (eds), Democracy: A Reader (The Johns Hopkins UP 2009) 270 (Table 2).

about legitimating government by others’.²⁷ Mere elections in slave-society would not amount to democracy.

Substantive theory of democracy was invented to tackle the weaknesses of the procedural view and has been buttressed by an increased awareness of the problems that many states face despite the increase in ‘electoral democracy’.

It is founded on democracy’s underlying principles, such as (substantive) equality and self-empowerment: democracy entails fostering of a fully developed individual capable of exercising meaningful free choice and to fully participate in public affairs. The most sophisticated account of this model was given by Beetham. According to him,

The core idea of democracy is that of popular vote or popular control over collective decision-making. Its starting point is with the citizen rather than with the institutions of government. Its defining principles are that all citizens entitled to a say in public affairs, both through the associations of civil society and through participation in government, and that this entitlement should be available on terms of equality to all. Control by citizens over their collective affairs and equality between citizens in the exercise of that control are the basic democratic principles.²⁸

Similar view is aired by Held, who claimed that genuine democracy is based on participation of ‘free and equal’ individuals ‘in the processes of deliberation about the conditions of their own lives and in the determination of those conditions, so long as they do not deploy this framework to negate the rights of others’.²⁹ Democracy is, thus, not an absolute and static notion but a continuous process of enhancing political equality and self-rule.³⁰ It is to be understood in terms of a social contract aimed to protect citizen’s rights. In this view, elections are not an end in itself but a means of creating a society of equal citizens enjoying equal access to political institutions and processes and exercising meaningful influence on the decision-making of their leaders.

Rather than being confined to procedural pillars of universal participation, electoral equality and majoritarianism, the substantive view evaluates democracy on the basis of substance of government polices. Most theorists claim that democratic government must guarantee civil and political rights and freedoms. Some go further by adding social and economic rights to the list of requirements that governments should be evaluated against.

The substantive model of democracy has not escaped criticisms either. It is often claimed to be a philosophical ideal lacking precise conceptual frames to be workable. Huntington’s position well reflects these concerns:

27 Susan Marks, The Riddle of All Constitutions: International Law, Democracy and the Critique of Ideology (OUP 2000) 2.

28 David Beetham, Democracy and Human Rights (Polity Press 1999) 90-91 (emphasis original).

29 David Held, Models of Democracy (3rd edn, Polity Press 2006) 264.

30 Susan Marks, The Riddle of All Constitutions: International Law, Democracy and the Critique of Ideology (OUP 2000) 73.

To some people democracy has or should have much more sweeping and idealistic connotations. To them, ‘true democracy’ means liberté, égalité, fraternité, effective citizenship control over policy, responsible government, honesty and openness in politics, informed and rational deliberation, equal participation and power, and various other civic virtues. These are, for the most part, good things and people can, if they wish, define democracy in these terms. Doing so, however, raises the problems that come up with the definitions of democracy by source or by purpose. Fuzzy norms do not yield useful analysis.³¹

Moreover, given the generic character of the substantive conception, it is viewed by some as a modern neocolonial strategy.³² Since such highly abstract concepts as the rule of law, accountability and respect for human rights are difficult to measure, states’ policies of substantive democracy promotion may serve as a guise for neocolonial interventionism. There are also scholars taking a middle-ground position on the issue in question. While claiming that respect for economic, social and cultural rights does not necessarily constitute an unalienable element of democratic regime, they do not deny completely the impact of this strand of rights on functioning of democracy.³³

Thus, it should be clear by this point that democratic political theory lacks a unitary understanding of democracy. The procedural model is attractive due to its practical measurability and comparability. However, with its unhealthy focus on elections it provides a distorted picture of political reality since it fails to distinguish between liberal democracies and a variety of electoral regimes paying scant or no regard to the protection of human rights. For the adherents of the substantive theory, democracy is more than a political system or an electoral method and comprises a set of practices and values founded on the respect for human dignity. Yet, the absence of precise theoretical ramifications of the concept makes it ineffective, useless and vulnerable to abuse. To address both types of criticisms, some quarters of scholarly community sought to underscore the ongoing nature of the concept of democracy. For them,

‘[s]ubstantive democracy is a maximum goal, relevant to normative evaluation of all regimes but susceptible only of incomplete realization in even the most highly developed polity. Popular sovereignty is a minimum goal, requisite to the bare recognition of a government’s legitimacy against the claims of rival contestants’.³⁴ However, such understanding does not solve the conceptual indeterminacy of the notion of democracy, it merely restates the incapability of the concept to reconcile the substantive virtue of genuine citizen empowerment with the procedural virtues of quantifiability and precision.

31 Samuel P Huntington, The Third Wave: Democratization in the Late Twentieth Century (University of Oklahoma Press 1991) 9.

32 Mart Koskenniemi, ‘Whose Intolerance, Which Democracy’ in Gregory H Fox and Brad R Roth (eds), Democratic Governance and International Law (CUP 2000) 439-40.

33 Jean d’Aspremont, L’État non démocratique en droit international (Pedone 2008) 33.

34 Brad Roth, ‘Evaluating Democratic Progress’ in Gregory H Fox and Brad R Roth (eds), Democratic Governance and International Law (CUP 2000) 512. See also James Allan,

‘Liberalism, Democracy and Hong Kong’ (1998) 28 HKLJ 156, 164-65.

Before attempting to ‘update’ the democratic theory, it is worth pausing to consider the existing classification of democracy into several types, or models.