In association with the International Commission of Jurists

Symposia

27 Sep

[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.)
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26 Sep

[David Landau is an Assistant Professor and Associate Dean for International Programs at Florida 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. Professor Varol’s article “The Democratic Coup d’Etat” is an important piece of work and a key contribution to the newest wave of literature on democratic transitions. In addition, the piece is nicely crafted and carefully researched -- both Professor Varol’s theoretical foundation and his case studies are persuasive. Professor Varol rightly points out that the role of the military during democratic transitions is not uniformly negative, but in fact is complex, and uses a simple assumption, which is that the military will generally try to increase or entrench its own power during transitions, to explain military behavior during transitions. Finally, he presents a series of case studies across both time and place which would otherwise appear to have little in common (Turkey in 1960, Portugal in 1974, and Egypt today) to show that his assumption about military behavior seems to hold broadly. My comments here are not a critique of his central thesis, which I basically share, but rather build off of two of the major points in the piece. A first key finding is that “coups” are hard events to classify – contrary to conventional usage, they do not always have antidemocratic intent or effects. As Professor Varol shows, sometimes militaries engage in “coups” precisely in order to put in place or restore a democratic order. This raises a broader point: our vocabulary about democratic transitions remains pretty crude. Revolutions, as Richard Albert has argued in recent work, are not uniform events, but often have little in common; the same seems true of events we call “coups.” At the same time, these are loaded terms: to call something a coup is universally to condemn it. The term does not get thrown around in a neutral way, but is used by opponents to classify an event to which they are hostile. Meanwhile, supporters avoid the label like the plague. This is particularly true in regions, like Latin America, with long and largely (but not entirely) negative experiences with military involvement in politics. A recent example occurred in Honduras, where both sides following the removal of President Zelaya in 2010, as well as international institutions like the OAS, were obsessed with a fight over how to classify the event, even though there was agreement about most of the relevant facts. Supporters of Zelaya argued that the event was a classic coup because the military had taken Zelaya away, flying him to Costa Rica, without any legal authority. The proponents of the removal, in contrast, argued that it was a congressionally ratified action against a dangerous, undemocratic president. The sheer amount of energy put into the label suggests that it is obscuring rather than illuminating important questions. And I am uncertain whether adding the label “democratic coup” to the vocabulary does much to clarify things. Opponents of Zelaya would characterize the removal as a “democratic coup,” if a coup at all, because it had the effect of ousting a president who they argue was on a path to dictatorship and replacing him with another civilian regime that did not have such aims. Supporters of course would argue that it was undemocratic because it removed a democratically-elected president who was governing according to the popular will.
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26 Sep

[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.
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26 Sep

[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,...

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21 Jun

[Paul Schiff Berman is Dean and Robert Kramer Research Professor at George Washington University Law School.] I want to thank all the participants in this online symposium both for their extraordinarily thoughtful comments on my book and for their many constructive interventions through the years as I have been developing these ideas.  I am blessed to be part of a truly supportive academic community, and these posts exemplify all that can be good about thoughtful academic discourse built on dialogue rather than one-upsmanship.  Such fruitful academic discourse should not be so rare, but that only means we must be especially grateful when true community is instantiated before our eyes. As to the individual comments, I won’t respond to all of them.  Certainly, there are many aspects of our plural world that I wish were better reflected in the book.  As Janet Levit points out, I do not have nearly enough examples from the world of non-state law-making (mostly because they are more difficult to find and document).  Likewise, Jeff Dunoff is surely right that regime interaction is an area that deserves greater attention than I paid to it (and his work usefully provides such attention).  The same is true of the international financial regulation described by David Zaring.  Finally, Peter Spiro correctly identifies the difficulties inherent in deciding when a community is well-enough defined to justify recognition.  All of these are matters that further work will need to flesh out. So, here let me confine my remarks to three quick responses and one small quibble. 
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20 Jun

[Hari M. Osofsky is Associate Professor and 2011 Lampert Fesler Research Fellow, University of Minnesota Law School and Associate Director of Law, Geography & Environment, Consortium on Law and Values in Health, Environment & the Life Sciences] This post is part of our symposium on Dean Schiff Berman's book Global Legal Pluralism. Other posts can be found in Related Posts below. It is an honor and a pleasure to have the opportunity to participate in this conversation about Paul Berman's exciting new book, "Global Legal Pluralism: A Jurisprudence of Law Beyond Borders.”  Like many of the commentators, I have had the privilege of watching this project evolve over several years.  The book is a tremendous contribution which reflects Paul's command of numerous interdisciplinary literatures and substantive areas of law.  It makes an articulate and compelling case for taking a cosmopolitan and pluralist approach to law in an era of globalization. My two primary interventions in this brief blog are not so much critiques of the book, as suggestions for directions Paul and others could go from here to explore these issues in additional ways.  First, as Paul and I have discussed for many years, I think his geographical analysis might be developed further by focusing on issues of scale more deeply.  Early on, I queried whether the book should be called "multiscalar legal pluralism" rather than "global legal pluralism."  I wondered whether Paul could fully capture the interactions and institutional hybridity through focusing on the "global" or "international" levels. Paul has done much to address that concern in the ways in which he has incorporated multiple levels of government, even using the term "multiscalar" in the context of discussing climate change federalism.  However, I would be excited to see him go even deeper in future explorations of scale in this context.  Specifically, I wonder what "global" or "international" means in a cosmopolitan and pluralist world.  To the extent that one accepts geographer Kevin Cox's theory that each level is constituted by core interactions at that level and by interactions across levels (a theory that I often draw from in my own work), multiple visions of the international scale might result.  These possibilities for pluralism in defining global scale might impact the hybrid forms that Paul explores so thoughtfully.
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19 Jun

This post is part of our symposium on Dean Schiff Berman's book Global Legal Pluralism. Other posts can be found in Related Posts below. This is a great book, and I am almost completely on board with the orientation here.  Paul is right on the money in navigating between the territorial sovereigntists on the one hand and the cosmopolitan universalists on...

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19 Jun

[David Zaring is Assistant Professor of Legal Studies and Business Ethics at the University of Pennsylvania's Wharton School] This post is part of our symposium on Dean Schiff Berman's book Global Legal Pluralism. Other posts can be found in Related Posts below. Paul Berman is rethinking the global legal system with reference to both the plurality and the narrowness of modern community....

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19 Jun

[Janet K. Levit is Dean and Dean John Rogers Endowed Chair at the University of Tulsa College of Law] This post is part of our symposium on Dean Schiff Berman's book Global Legal Pluralism. Other posts can be found in Related Posts below. In Global Legal Pluralism: A Jurisprudence of Law Beyond Borders, Paul Schiff Berman concludes that we live in a world of multiple norm-generating, but not necessarily territorially-based, communities, some sanctioned by the state and some not; these communities overlap in asserting norms and “adjudicating” law, creating hybrid legal spaces that are often “jurisgenerative.”  Berman argues that in an age of globalization, we should embrace this type of pluralism.  To the extent that the book is prescriptive, Berman looks to law, particularly procedural and conflicts law, to preserve and manage these hybrid legal spaces. Since 2005, I have joined Berman in multiple symposia and panels, and I have commented on many of the articles and book chapters that are the building blocks for Global Legal Pluralism.  The long “gestation” period paid off – Global Legal Pluralism is a brilliant and eloquent weaving of Berman’s various scholarly threads.  While the book concludes in part that law is “messy,” the book’s argument is quite neat, tight, and logical.  Berman addresses and redresses the dominant critiques lobbed at his work over the years, showcases agility with interdisciplinary research, and demonstrates the value of legal scholarship that does not end with heavy-handed prescriptions.  Like all books of this breadth, there is room for critique.  Instead, in this post, I offer some broader thoughts on ways to push Berman’s outstanding work beyond its own boundaries and borders.
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18 Jun

[Jeffrey Dunoff holds the Laura H. Carnell Chair at Temple University Law School] This post is part of our symposium on Dean Schiff Berman's book Global Legal Pluralism. Other posts can be found in Related Posts below. Paul Berman has produced a terrific, and terrifically ambitious, work of scholarship.  The book presents a compelling case that the current legal order is marked by multiple and overlapping international, transnational, national, sub-national and non-state normative orders.  Paul argues that relations among these various orders should be managed through a “cosmopolitan pluralist” approach that pays due respect to the interests that various norm-generating communities have in any particular dispute.  The text’s central jurisprudential and normative claim is that cosmopolitan pluralism is superior to its two main rivals, namely (i) universalist approaches that elide important normative differences among diverse communities, and (ii) territorially-based sovereigntist approaches that inappropriately privilege the interests of one community by ignoring the legitimate interests of others. Although the “pluralist” strand of Paul’s argument promises to decenter the state as law-maker, ironically virtually all of the book’s examples of legal hybridity feature conflicts involving state law, such as competing claims for authority between two or more states (should the IP law of states A or B should govern the registration of internet domain names); between domestic and international institutions (such as the ICJ and US Supreme Court decisions in the Avena/Medellin line of cases); and between public and private actors (such as when religious and state law diverge on family law matters). Perhaps as a result, GLP devotes very limited attention to analysis of “conflicts” between and among different functional international legal regimes, even though this issue has preoccupied public international lawyers for the better part of a decade (see here and here).  While Paul graciously cites to my work on regime interaction in his discussion of this phenomena (pp. 182-86), I wonder if GLP’s brief analysis does justice to this form of legal hybridity.
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18 Jun

[Paul Schiff Berman is Dean and Robert Kramer Research Professor at George Washington University Law School.] Thanks to Peter and all the other bloggers for providing an opportunity to explore the ideas in my recent book, Global Legal Pluralism. I start from the premise that we live in a world of legal pluralism, where a single act or actor is potentially regulated...

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18 Jun

We’re delighted this week to host a discussion of Paul Schiff Berman's "Global Legal Pluralism: A Jurisprudence of Law Beyond Borders" (Cambridge University Press). Paul is the Dean and Robert Kramer Research Professor of Law at George Washington University Law School. This is a rich and broadly argued book (Paul confesses to being a "lumper," I think in the best...

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