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HILJ Symposium: Can There Be a Democratic Coup d’Etat?

[Joel Colón-Ríos, Senior Lecturer at Victoria University of Wellington, Faculty of Law, responds to Ozan Varol, The Democratic Coup d'Etat.] This post is part of the Harvard International Law Journal Volume 53(2) symposium. Other posts from this series can be found in the related posts below. Ozan Varol has written an important article. In arguing that some military coups may not only have democratic features but that they may also result in the adoption of democratic constitutions, Varol invites us to reconsider two of the most persisting questions in contemporary constitutional theory. First, what makes a legal revolution (understood in Kelsenian terms, that is, as the creation of a new constitution in violation of the rules of change of a previous constitutional order [see Hans Kelsen, General Theory of Law and State 116-118 (1949)]) democratic? Second, what makes a constitution democratic? Even though mostly engaging in a discussion about legal revolutions, about military coups that result in important structural changes (i.e. the transformation of authoritarian or totalitarian regimes into democratic ones), Varol seems to be examining only the latter of these questions. In fact, he suggests that he is not interested in looking at the “process by which the coup takes place” (the legal revolution), but at the democratic character of the “resulting change” (the constitution it produces) (p. 298). For the purposes of his article, Varol operates under Samuel Huntington’s definition of democracy: “a regime in which political leaders are selected through free and fair elections”. (p. 305). Varol does not engage in an open defence of this (low-intensity) conception of democracy, but uses it to determine whether a military coup can be categorized as democratic. Briefly put, if a military, with the support of the population, topples an authoritarian or totalitarian regime, facilitates free and fair elections within a short span of time, and transfers power to the democratically elected leaders, we have a democratic coup. (p. 300). In this short note, I would like to look at ‘democratic coups’ from a strong conception of democracy. In so doing, my aim is not to put forward a different conception of ‘democratic coups’, but to show that the questions posed above are interrelated in important ways; they are, put shortly, questions about the democratic legitimacy of a constitutional regime. If we look at these two questions together, we still might be able to talk about ‘democratic coups’, but in a much more restricted way that Varol’s approach suggests.

HILJ Symposium: The Democratic Coup d’Etat

[Ozan Varol is Assistant Professor of Law at Lewis & Clark Law School.] This post is part of the Harvard International Law Journal Volume 53(2) symposium. Other posts in this series can be found in the related posts below. This article examines the typical characteristics and constitutional consequences of a largely neglected phenomenon that I call the “democratic coup d’état.” To date,...