Kiobel Roundtable: Who’s Afraid of Transitory Torts? Thoughts on Kiobel II

HILJ Symposium: A Commentary on Ozan Varol’s “The Democratic Coup d’Etat”

[Brad Roth is Professor of Political Science & Law at Wayne State University.] 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. Ozan Varol’s article, “The Democratic Coup d’Etat,” performs a crucial service in reorienting assessments of extra-constitutional changes in government so as to emphasize substance over form. He refutes the commonplace idea – most recently championed by Richard Albert – that coups are inherently and inevitably undemocratic and illegitimate, “Democratic Revolutions,” forthcoming Denver U. L. Rev. 89:2 (2012), at 20, and demonstrates that under some conditions, seizures of power by military elites may lay the groundwork for the establishment of liberal-democratic participatory processes. He does so without any naïveté about coup-makers’ agendas, fully acknowledging the distortions that even “democratic” putschists introduce into post-coup constitution-making processes in order to entrench prerogatives for the military and/or its favored constituencies. But as he notes, the coup leaders may actually fail at engineering such reserves of power – especially when they attempt it directly and overtly – because, as in the Portuguese case (and, one might hope, in the current Egyptian case), they set in motion democratic dynamics that they cannot contain. Varol’s account, however, replaces one exaltation of form over substance with another, reducing democracy itself to a narrow set of institutions and procedures that a coup may or may not work to promote. Such ascription is hardly unique to Varol – empirically-oriented political scientists tend to favor reducing democracy to elements that the tools of social science research can operationalize – but it neglects both the normatively loaded nature of the term and the extent to which competing conceptions of democratic ends animate political conflicts. See, e.g., Samuel Huntington, The Third Wave: Democratization in the Late Twentieth Century (Norman, Okla.: Univ. of Oklahoma Press, 1991), 5-13. Relatedly, Varol refers repeatedly to “the regime,” “the military,” and (most problematically) “the people” as unitary actors, whereas competing players frequently act in the name of these entities. (Instructive on the divisions within these groups is a book that Varol himself cites: Giuseppe Di Palma, To Craft Democracies: An Essay on Democratic Transitions (Berkeley: Univ. of Calif. Press, 1990), at 44-75.)