Posted by ccld201
14 January 2025These are dangerous times for democracy. Critically reflecting on democracy’s inherent conceptual uncertainties and practical challenges while its foundations are under threat might seem like a reckless academic indulgence. It is important to remember though that the process of questioning democracy is a vital part of its identity and a core source of its strength.
The apparently continuous slide towards illiberal and far right politics across Europe and around the world demonstrates democracy’s fragility. Although this shift might to some extent reflect electoral frustration with democratic government, the negative effects of democracy’s erosion reveal at the same time why it is so precious: in the words of the song, you don’t know what you’ve got till it’s gone.[1] Even so, democracy is not perfect. Historical intersections between the practices of democratic states and the regimes they opposed, undemocratic vestiges within democratic orders today, including racist and colonial legacies, together with resistance to political conventions, authoritarian security practices[2] and heavy-handed policing raise questions about the nature and legitimacy of democracy itself. Is it wise though for academic commentary to engage critically with the workings of democracy, including its conceptual foundations and its practices, when its continued existence is under threat? With an autocrat’s tanks rolling on Europe’s borders, evidence of interference in democratic elections, and a self-declared ‘day-one dictator’ elected president of the most powerful state in the Western world, is academic questioning of democracy from within constructive or self-destructive?
In the famous formulation of W. B. Gallie, democracy is a ‘contested concept’, that is, a concept of which the proper use is inevitably disputed by its users.[3] In other words, there is no clear and consistent agreement about the meaning of the concept of democracy, and the very nature of democracy involves and depends on open discussion about what it means and requires. Conceptually and practically, democracy is about lots of things, including representation, the rule of law, and respect for human rights and human dignity. Importantly, it is also about accountable government that fosters processes of participatory and discursive learning, reflecting on mistakes and striving to improve.[4] As such, democracy is arguably more a process than an outcome, a pathway of becoming rather than a complete condition. At the same time, democracy is also characterised by an internal contradiction, in that its core attributes involve protecting freedoms that may allow activities that threaten it (such as freedom of speech and political activity),[5] as well as an inherent ‘predicament’, in that democracies need to preserve themselves without overly restricting their potentially destabilising foundational liberties.[6] Consequently, democracy as a concept and a system is arguably marked by uncertainties and tensions, conditions of discursive potentiality and practical paradox that are fertile ground for critical engagement.
Critical reflection on democracy can though be both a basis for reinforcement and a route towards rejection. For instance, noting the so-called paradox of constitutionalism and minding the gap between constituent and constitued power, or weighing up the relative significance of a majority and the need to constrain its potential for tyranny, can be grounds for both democratic consolidation and populist anti-democratic resentment. Constitutionalism, political pluralism, and government under the rule of law, for example, are (at least in theory) mechanisms for strengthening democracy by mitigating its power-concentrating potential. In contrast, the apparent upsurge in populism is partly the result of frustrations with democracy and an instrumentalisation of the ‘will of the people’ in the present against the fetters of past democratic expectations and supposedly outdated values. Consequently, critical discussion of democracy with the aim of supporting it might risk fuelling opposition and anti-democratic tendencies.
If critical engagement with democracy, within democracy, is a potentially double-edged sword, should it be undertaken at all in these troubled times? Are conceptual contestation and academic critique worth the risk of providing anti-democrats with ammunition? The answer must be undoubtedly affirmative. Academic questioning of democracy, challenging its problematic dimensions and developments, calling out unacceptable practices and testing concepts and values in the crucible of critical analysis have to remain an academic responsibility, which is in turn a key part of democracy’s toolkit for survival. In countries where it is still safe to engage in debate — and indeed in order to preserve this safety — the academic as activist and critical friend of democracy should not give in to self-censorship but must mitigate the risk of counterproductive misrepresentation through careful critical positioning. By opening an ‘interrogative space’[7] in which to reflect on and engage with democracy’s theoretical and practical problems and inconsistencies, academic analysis can offer a forum for strengthening democracy, by participating in its conceptually inherent contestation through constructive discussion. While critical reflection on democracy is a core element of its political and intellectual framework, it nevertheless needs to be undertaken carefully. In the abstract context of conceptual reflection, the idea of an interrogative space indicates a zone for intellectual manoeuvre, a discursively constructed opening for critical analysis that endeavours to suspend (as much as possible) political assumption and normative preconception, recognise problematic contingencies, and above all challenge without undermining. In other words, this requires democratic commentators to call out and own democracy’s shortcomings, to face its imperfections and address them, while recognising the value of what they seek to uphold. Through attentive critical positioning, discursive engagement with democracy and its contestable components in this sort of interrogative space can be used to support democracy’s ongoing development, while recognising and avoiding the risk of eroding it from within.
Under repressive regimes, critics are attacked and criminalized as subversives because, as Umberto Eco notes in the context of historical fascism, dissent is considered not to be indicative of modernity and constitutive of learning but a form of betrayal.[8] In contrast, dissent and criticism in democracy are reflective of its foundational values and freedoms, apparently paradoxical as they may be, and a core part of its reflective and developmental processes. Critical reflection that questions democracy, precisely because it matters, must be considered essential for its survival.
Stephen Skinner is Professor of Comparative Legal History and Legal Theory at the University of Exeter.
[1] Joni Mitchell, ‘Big Yellow Taxi’ (1970).
[2] Christos Boukalas, ‘U.K. Counterterrorism Law, Pre-emption, and Politics: Toward ‘‘Authoritarian Legality”?’ (2017) 20.3 New Criminal Law Review 355; Norman W Spaulding, ‘States of Authoritarianism in Liberal Democratic Regimes’ in Helena Alviar García and Günter Frankenberg (eds), Authoritarian Constitutionalism: Comparative Analysis and Critique (Elgar 2019) 265.
[3] WB Gallie, ‘Essentially Contested Concepts’ (1956) 56 Proceedings of the Aristotelian Society 167, 169.
[4] Günter Frankenberg, ‘The Learning Sovereign’ in András Sajó (ed), Militant Democracy (Eleven International Publishing, 2004) 113.
[5] Luigi Lacchè refers to the ‘paradox of freedom’ in ‘The Shadow of the Law: The Special Tribunal for the Defence of the State between Justice and Politics in the Italian Fascist Period,’ in Stephen Skinner (ed), Fascism and Criminal Law (Hart, 2015) 15, 16.
[6] Otto Kirchheimer, Political Justice: The Use of Legal Procedure for Political Ends (Princeton University Press 1961) 41.
[7] Günter Frankenberg, Authoritarianism: Constitutional Perspectives (Edward Elgar Publishing, 2020) xvi.
[8] Umberto Eco, How to Spot a Fascist (Harvill Secker, 2020) 19-20.