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RICHARD ALBERT
William Stamps Farish Professor of Law,
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ROBERT SCHÜTZE
Professor of European and Global Law,
Durham University and College of Europe
Abusive Constitutional Borrowing

OX F O R D C OM PA R AT I V E C O N S T I T U T IO NA L I SM
Series Editors
Richard Albert, William Stamps Farish Professor of Law,
The University of Texas at Austin Law School
Robert Schütze, Professor of European and Global Law,
Durham University and College of Europe
Comparative constitutional law has a long and distinguished history in
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ALSO PUBLISHED IN THIS SERIES

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Ron Levy, Ian O’Flynn, Hoi L. Kong
Eternity Clauses In Democratic Constitutionalism
Silvia Suteu
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Justin Collings
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Edited by Philipp Dann, Michael Riegner, and Maxim Bönnemann
City, State
Constitutionalism and the Megacity
Ran Hirschl
Constitutional Change In The Contemporary Socialist World
Ngoc Son Bui
Poland’s Constitutional Breakdown
Wojciech Sadurski
Abusive Constitutional
Borrowing
Legal Globalization and the Subversion of
Liberal Democracy
R O S A L I N D D I XO N
Professor of Law and Director of the Gilbert + Tobin
Centre of Public Law, UNSW Sydney
DAV I D L A N DAU
Mason Ladd Professor and Associate Dean for International
Programs, FSU College of Law
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Acknowledgments
This book is the product of many years of individual and joint work, beginning with
David’s article Abusive Constitutionalism.1 In that article, David noted the ways in
which democracy could be eroded by formal mechanisms of constitutional change.
Since then, we have jointly explored how similar dynamics operate in a variety of dif-
ferent contexts and modes of change.2 This book extends this prior work by exam-
ining the ‘borrowing’ by would-be authoritarians of tools, techniques, and doctrines
of liberal democracy for anti-democratic ends. Abusive borrowing, we have come to
believe, highlights an important—and overlooked—dark side of comparative consti-
tutional law.
Abusive Constitutional Borrowing could never have been produced without the gen-
erous support of a great many friends and colleagues in the field. We note our special
thanks to Ran Hirschl for encouraging us to pursue the project as a book-length one,
and participants at the ICON-S conferences in Copenhagen and Santiago for generous
feedback on earlier drafts. We likewise acknowledge the invaluable feedback and en-
couragement of participants at workshops on parts of the manuscript held at Harvard
Law School in 2017, UNSW in 2018, Melbourne Law School in 2018, and Columbia
Law School in 2020, especially Bill Alford, Jessica Bulman-Pozen, Tom Daly, James
Fowkes, Jamal Greene, Michaela Hailbronner, Vicki Jackson, Tarun Khaitan, David
Law, Gillian Metzger, Will Partlett, David Pozen, Jeff Redding, Kristen Rundle, Scott
Stephenson, Adrienne Stone, Arun Thiruvengadam, Mark Tushnet, Matt Waxman,
and Lulu Weis. We also benefited at various points from feedback and support from
many other colleagues in comparative constitutional law, including Adam Chilton,
Melissa Crouch, Erin Delaney, Stephen Gardbaum, Tom Ginsburg, Aziz Huq, Sam
Issacharoff, Madhav Khosla, Martin Krygier, Elizabeth Perham, Eric Posner, Theunis
Roux, Yaniv Roznai, Wojciech Sadurski, and Mila Versteeg.
Chapter 5 draws substantially on our recent article, Abusive Judicial Review,3
and we thank the UC Davis Law Review and its student editors for their excellent
1 David Landau, ‘Abusive Constitutionalism’ (2013) 47 UC Davis L Rev 189.

2 David Landau and Rosalind Dixon, ‘Constraining Constitutional Change’ (2015) 50 Wake Forest L
Rev 859; Rosalind Dixon and David Landau, ‘Transnational Constitutionalism and a Limited Doctrine of
Unconstitutional Constitutional Amendment’ (2015) 13 Int’l J Const L 606; David Landau and Rosalind
Dixon, ‘Abusive Judicial Review: Courts Against Democracy’ (2019) 53 UCDL Rev 1313; Rosalind Dixon
and David Landau, ‘Tiered Constitutional Design’ (2018) 86 Geo Wash L Rev 438; Rosalind Dixon and
David Landau, ‘Constitutional End Games: Making Presidential Term Limits Stick’ (2019) 71 Hastings
LJ 359; Rosalind Dixon and David Landau, ‘1989–2019: From Democratic to Abusive Constitutional
Borrowing’ (2019) 17 Int’l J Const L 489; Rosalind Dixon, ‘Constitutional Rights as Bribes’ (2018) 50
Connecticut L Rev 767; David E Landau, Rosalind Dixon, and Yaniv Roznai, ‘From an Unconstitutional
Constitutional Amendment to an Unconstitutional Constitution? Lessons from Honduras’ (2019) 8 Global
Constitutionalism 40.
3 Landau and Dixon, ‘Abusive Judicial Review’ (n 2).
vi Acknowledgments
assistance during the publication process. We likewise thank the Connecticut Law
Review for permission in Chapter 4 to draw on work that first appeared in Dixon’s
article Constitutional Rights as Bribes.4 We also note our thanks to Richard Albert,
Jamie Berezin, and Robert Schultze for their encouragement and support for the
publication of the book with Oxford University Press and its series on Comparative
Constitutionalism, and to Melissa Vogt for outstanding research assistance. We ac-
knowledge the support of the Manos Foundation and the role it played in bringing
the work to fruition. Finally, we thank our families for all of their love, support, and
patience as we worked on this project.
4 Dixon, ‘Constitutional Rights as Bribes’ (n 2).

Summary Contents
1. Introduction: A D ark Side o f Comparative Constitutional Law 1
2. Dem ocracy and Abusive Constitutional Change 23
3. The Concept and Scope o f Abusive Constitutional Borrowing 36
4. The Abuse o f Constitutional Rights 56
5. Abusive Judicial Review: Abusive Borrowing by and of

Constitutional Courts 81
6. The Abuse o f Constituent Power 116
7. The Abusive Borrowing o f Political Constitutionalism and

W eak-Form Judicial Review 152
8. Can Abusive Borrowing Be Stopped? 176
Index 209
Detailed Table of Contents
1. Introduction: A Dark Side o f Com parative Constitutional Law

A. The Rhetorical Triumph of Liberal Democratic Constitutionalism
B. The New Authoritarianism and Shifting Patterns of
Constitutional Borrowing
C. The Significance of Abusive Constitutional Borrowing
D. The Plan of the Rest of this Book
2. Dem ocracy and Abusive Constitutional Change

A. Abuse and Democracy
B. Democracy and Liberalism
C. The Many Forms of Abusive Constitutional Change
D. Conclusion
3. The Concept and Scope o f Abusive Constitutional Borrowing

A. The Who and What of Abusive Constitutional Borrowing
B. Constitutional Comparison and Borrowing
C. A Typology of Constitutional Borrowing
D. Four Modes of Abusive Constitutional Borrowing
1. Sham Borrowing
2. Abusive Selective Borrowing
3. Abusive Acontextual Borrowing
4. Abusive Anti-Purposive Borrowing
E. Conclusion
4. The Abuse o f Constitutional Rights

A. Hate Speech and Memory Laws in Rwanda, Poland, and Russia
B. Voting Rights in Hungary and Fiji
C. Gender Rights and Quotas in Rwanda
D. Environmental Rights in Ecuador
E. Conclusion
5. Abusive Judicial Review: Abusive Borrowing by and of

Constitutional Courts
A. Defining and Situating Abusive Judicial Review
B. Abusive Judicial Review as a Regime Strategy: The Abuse o f’
Judicial Review
C. Weak and Strong Forms of Abusive Judicial Review
1. Weak Abusive Judicial Review
2. Strong Abusive Judicial Review
X D E T A I L E D T A B L E OF C O N T E N T S
D. Abusive Judicial Review in Action: Two Case Studies 98

1. Venezuela and the Suppression of the Congress 98
2. Cambodia, Thailand, and Militant Democracy 103
E. The Limits of a Strategy of Abusive Judicial Review 112
R Conclusion 115
6. The Abuse o f Constituent Power 116

A. Constituent Power and Constitution-Making in Latin America 117
1. Pro-Democratic Usage: Colombia (1991) 120
2. Abusive Usages: Venezuela (1999) and Ecuador (2008) 122
3. Abusive End Game: The Venezuelan ‘Constituent Assembly’ of 2017 125
B. The Unconstitutional Constitutional Amendment Doctrine
and Presidential Re-Election in Latin America 129
1. Democratic Hedging in Colombia 131
2. Abusive Usage Elsewhere in Latin America 132
3. A Constitutional Right to Re-Election: The Logic of Abusive Usage 136
C. International Supports for Constituent Power 141
1. Unconstitutional Government Norms in Fiji 141
2. Constitutional Identity in Eastern Europe 144
D. Conclusion 151
7. The Abusive Borrowing o f Political Constitutionalism and Weak-Form

Judicial Review 152
A. Political Constitutionalism and its Relatives 153
B. The Abusive Borrowing of Political Constitutionalism in
Eastern Europe 158
C. Israel and the Abusive Borrowing of the New Commonwealth Model 166
D. Conclusion 174
8. Can Abusive Borrowing Be Stopped? 176

A. Monitoring and Sanctioning Abuse 180
1. Toward Global Legal Realism 182
2. The Design of Monitoring Institutions 186
3. The Level of Response: Transnational Norms vs International Law 188
4. Avoiding Anti-Imperialist Backlash and Other Pitfalls 190
B. Abuse-Proofing Liberal Democratic Norms 193
1. Abuse as Grounds for Elimination? 193
2. Howto Abuse-Proof 196
3. The Problem of (Proto-)Abuse by Liberal Democratic States 200
C. Debating and Defending Liberal Democracy: Contestation
and Respect for the Democratic Minimum Core 203
Index 209
1
Introduction
A Dark Side of Comparative Constitutional Law
We live in an age of comparative constitutionalism.1 Constitution-making itself, long

theorized to be a quintessentially domestic act of self-government, in fact increasingly
emphasizes transnational and international actors, as well as borrowing from other
constitutional orders.2 Certain core features, such as judicial review3 and many con-
stitutional rights,4 are now virtually universal features of constitutions, and there is
evidence of textual convergence even outside of this core.5 Comparativism also per-
meates the application and interpretation of constitutional law. For example, there is
a robust transnational network among judges.6 Many doctrinal ideas, such as propor-
tionality, are also success stories in transnational migration.7
This thick comparativism often forms the backbone of an optimistic story. A trans-
national consensus about liberal democracy has seemingly emerged both in the design
of constitutions and (to a lesser degree) in their application. To be sure, the constitu-
tional story has long been acknowledged to be imperfect. There are holdouts, or al-
ternative models, such as China and Singapore.8 Still, the prevalence of transnational
borrowing by constitutional actors such as designers, scholars, and judges fits with
evidence, in many regions, that there is now a transnational legal order with a liberal
democratic shape.9 This in turn is consistent with Francis Fukuyama’s famous (and
1 See David Fontana, ‘The Rise and Fall of Comparative Constitutional Law in the Postwar Era’ (2011) 36
Y Int’l LJ 1.
2 See Tom Ginsburg, ‘Constitutional Advice and Transnational Legal Order’ (2017) 2 UC Irvine J Intl
Trans & Comp L 5; Vijayashri Sripati, Constitution-Making under UN Auspices: Fostering Dependency in
Sovereign Lands (OUP 2020).
3 See Tom Ginsburg and Mila Versteeg, ‘Why Do Countries Adopt Judicial Review?’ (2014) 30 J L Econ &
Org 587.
4 See David S Law and Mila Versteeg, ‘The Evolution and Ideology of Global Constitutionalism’ (2011) 99
Cal L Rev 1163.

5 See David S Law, ‘Constitutional Archetypes’ (2016) 95 Tex L Rev 153.
6 See Anne Marie Slaughter, ‘A Typology of Transjudicial Communication’ (1994) 29 U Richmond L
Rev 99.
7 See, eg, Carlos Bernal-Pulido, ‘The Migration of Proportionality Across Europe’ (2013) 11 New Zealand
J Pub & Int’l L 483; Joao Andrade Neto, Borrowing Justification for Proportionality: On the Influence of the
Principles Theory in Brazil (Springer 2018); Alec Stone Sweet and Jud Mathews, ‘Proportionality Balancing
and Global Constitutionalism’ (2008) 47 Colum J Transnat’l L 72; Moshe Cohen-Eliya and Iddo Porat,
Proportionality and Constitutional Culture (CUP 2013).
8 See, eg, Thomas E Kellogg, ‘Arguing Chinese Constitutionalism: The 2013 Constitutionalism Debate
and the “Urgency” of Political Reform’ (2015) 11 U Pa Asian L Rev 338; Mark Tushnet, ‘Authoritarian
Constitutionalism’ (2015) 100 Cornell L Rev 391.
9 See, eg, Kim Lane Scheppele, ‘Autocracy under Cover of the Transnational Legal Order’ in Gregory
Shaffer, Tom Ginsburg, and Terrence C Halliday (eds), Constitution-Making and Transnational Legal Order
(CUP 2019) 188, 190–6; David Landau, ‘Democratic Erosion and Constitution-Making Moments: The
Role of Transnational Legal Norms’ in Gregory Shaffer, Tom Ginsburg, and Terrence C Halliday (eds),
Constitution-Making and Transnational Legal Order (CUP 2019) 234, 234–5.
Abusive Constitutional Borrowing. Rosalind Dixon and David Landau, Oxford University Press. © Rosalind Dixon and
David Landau 2021. DOI: 10.1093/oso/9780192893765.003.0001
2 A Dark Side of Comparative Constitutional Law
now much critiqued) thesis at the end of the Cold War of the ‘end of history’—that the
world was more or less converging toward liberal democracy, with alternative models
falling away.10
Recent experience, however, has shown that Fukuyama’s account was far too opti-
mistic, and authors are now much more prone to speak of the crisis of liberal democ-
racy than its hegemony.11 First, authoritarian regimes have not gone away; indeed,
‘authoritarian constitutionalism’ itself may be a durable and distinct variety of consti-
tutionalism.12 Second, many countries that transitioned out of authoritarian regimes
did not become full-fledged democracies, but instead remained stuck somewhere be-
tween democracy and authoritarianism, for example in the regime type that Levitsky
and Way have called ‘competitive authoritarianism’.13 Third, and perhaps most alarm-
ingly, some countries around the world have recently backslid from liberal democracy
toward authoritarianism.14
Some recent evidence from Freedom House is indicative of these patterns.15 They
note a sharp increase in liberal freedoms between 1988 and 2005—during that period,
the percentage of countries rated ‘not free’ dropped from 37 to 23 percent, while the
percentage of those rated ‘free’ increased from 36 to 46 percent. Since then, they have
measured thirteen consecutive years of decline, albeit at a less marked clip than the
increases of the prior seventeen years. Overall, the percentage of countries rated free
has decreased since 2005 to only 44 percent, while those rated not free have increased
to 26 percent (the remaining 30 percent are rated ‘partly free’). Thus, the picture
painted by Freedom House is one suggesting that the gains made since the end of the
Cold War have stagnated, and indeed been partly rolled back.
Other measures of democracy, and works by prominent academics, support a sim-
ilar conclusion.16 There has been stress on democracy in recent years across essentially
every region: in Latin America in Brazil, Venezuela, Ecuador, and Bolivia; in Europe
in Hungary and Poland; in the Middle-East in Turkey and Israel; and in Asia in India,
Sri Lanka, Bangladesh, Cambodia, and Thailand, to name only a few examples of a
very long list of potential candidates. Africa has also seen a continued history of dem-
ocratic regression, as well as progress, and the Pacific has experienced fresh coups as
well as moments of apparent democratic transition and consolidation.
10See Francis Fukuyama, The End of History and the Last Man (Hamish Hamilton 1992).
11See, eg, Wojciech Sadurski, Poland’s Constitutional Breakdown (OUP 2019); Tom Ginsburg and Aziz
Z Huq, How to Save a Constitutional Democracy (UCP 2018); Pippa Norris and Ronald Inglehart, Cultural
Backlash: Trump, Brexit, and Authoritarian Populism (CUP 2019).
12 See, eg, Tom Ginsburg and Alberto Simpser (eds), Constitutions in Authoritarian Regimes (CUP
2014) (giving examples of the functions played by authoritarian constitutions around the world); Tushnet
(n 8) (using the example of Singapore to argue that authoritarian constitutionalism is a distinct norma-
tive type).
13 See Steven Levitsky and Lucan A Way, Competitive Authoritarianism: Hybrid Regimes after the Cold
War (CUP 2010).

14 See, eg, David Landau, ‘Abusive Constitutionalism’ (2013) 47 UCDL Rev 189, 203–11; Kim Lane
Scheppele, ‘Autocratic Legalism’ (2018) 85 U Chi L Rev 545.

15 See Freedom House, ‘Freedom in the World 2019: Democracy in Retreat’ (2019) <https://freedom-
house.org/report/freedom-world/freedom-world-2019/democracy-in-retreat>.
16 See Steven Levitsky and Daniel Ziblatt, How Democracies Die (Broadway Books 2018); Ginsburg and
Huq (n 11); Joshua Kurlantzick, Democracy in Retreat: The Revolt of the Middle Class and the Worldwide
Decline of Representative Government (YUP 2013); Philip Kotler, Democracy in Decline (SAGE 2016); Larry
Diamond, ‘Facing Up to the Democratic Recession’ (2015) 26 J Democracy 141.
The Rhetorical Triumph 3
Our thesis is that these two trends—an increasingly dense age of constitutional
globalization, on the one hand, and stagnation and backsliding in democratization, on
the other—are fully consistent. The key link between them is the rise of what we call
‘abusive constitutional borrowing’. By abusive constitutional borrowing, we mean the
appropriation of liberal democratic constitutional designs, concepts, and doctrines in
order to advance authoritarian projects. Indeed, we will show that some of the most
important hallmarks of liberal democratic constitutionalism—constitutional rights
and judicial review, for example—can be subverted into powerful instruments to de-
molish rather than defend democracy. This in turn holds both warnings and lessons
for those invested in promoting and defending liberal democratic constitutionalism.
And it highlights an underappreciated dark side to the project of comparative consti-
tutional law.17
A. The Rhetorical Triumph of Liberal

Democratic Constitutionalism
The twentieth century saw a series of waves of constitution-making after the Second
World War: defeated Axis powers under occupation, decolonization, the fall of dicta-
torships across Southern Europe and Latin America, and the fall of the Soviet Union.18
Each of these waves helped to fortify the dominance of liberal democratic constitu-
tional ideas. The new constitutions written during these waves (and between them),
although often romanticized as products of a domestic will of the people, were also
written in a context of an increasingly dense interchange of liberal democratic ideas.19
The precise pressures varied from time and place: the ‘occupation’ constitution-
making occurring in Germany and Japan after the Second World War was quite dif-
ferent from post-authoritarian constitution-making in Eastern Europe after 1989, but
pressures toward convergence existed across many different times and places.
A growing body of empirical research has shown that these pressures influenced the
content of constitutional texts. One notable finding, for example, has been that when
a constitution was written exercises a major influence on design, sometimes greater
than where or why it was written: this suggests the great importance of transnational
borrowing of constitutional ideas.20 Constitutions written around the same time pe-
riod thus tend, for example, to include similar types and quantities of rights.
17 Compare David Kenny, ‘A Review of Neil Walker’s Imitation of Global Law, by Neil Walker’ (2015) 63
Am J Comp L 1053.
18 Jon Elster, ‘Forces and Mechanisms in the Constitution-Making Process’ (1995) 45 Duke LJ 374, 368–9.
19 See, eg, Hanna Lerner, David Futscher, and Nina S Schlager, ‘International Constitutional
Advising: Mapping the Field and Assessing Impact’ (paper presented at American Political Science
Association Conference 2020, 10 September 2020); Ginsburg (n 2); ; Sujit Choudhry, ‘Migration as a New
Metaphor in Comparative Constitutional Law’ in Sujit Choudhry (ed), The Migration of Constitutional
Ideas (CUP 2006) 1.
20 See Zachary Elkins, Tom Ginsburg, and James Melton, The Endurance of National Constitutions
(CUP 2009) 25–6; Jose A Cheibub, Zachary Elkins, and Tom Ginsburg, ‘Latin American Presidentialism
in Comparative and Historical Perspective’ (2011) 89 Tex L Rev 1707, 1708; Tom Ginsburg, Zachary
Elkins, and James Melton, ‘Comments on Law and Versteeg’s “The Declining Influence of the United States
Constitution” ’ (2012) 87 NYU L Rev 2088, 2094.
It would be too strong, of course, to argue that there is now a single ‘standard model’
of constitutions around the world. Local pressures matter, and along some key dimen-
sions there is still global contestation. David Law, for example, finds evidence drawn
from the texts of constitutional preambles of three different global models of constitu-
tionalism.21 But there is also considerable evidence of convergence around key aspects
of design.22
We focus here on two aspects that have become virtually canonical in liberal demo-
cratic constitutionalism: rights and judicial review. Virtually all constitutions around
the world now contain a bill of rights. Australia is arguably one of the few exceptions
among liberal democracies, and even it has a very narrow, ‘partial’ bill of rights.23
Furthermore, empirical work shows a generic core to those provisions: there are a
series of rights, such as freedom of speech, due process, and freedom of religion, that
are essentially universal in scope. Outside of the core, there is more contestation.24
And some empirical work shows that rights can drop out of the core if they lose favor
internationally and transnationally, as well as join it. For example, the right to petition,
which was once prominent in constitutions, became increasingly uncommon after it
was left out of the Universal Declaration of Human Rights and similar instruments in
the emerging human rights community.25
There is a strong trend toward ‘rights inflation’: the average number of rights in-
cluded in constitutions has increased significantly over time.26 Thus, newer consti-
tutions tend to contain many more rights than older ones. Furthermore, many rights
that have been introduced more recently have achieved levels of success comparable to
those of classical, older rights. The best example are socioeconomic rights. While there
are some constitutions around the world (most famously, the US Constitution)27 that
still do not include them, they are now very common. Chilton and Versteeg, for ex-
ample, find that 81 percent of all constitutions include the right to education, 71 per-
cent the right to health, and 63 percent the right to social security.28 Thus, even many
‘newer’ rights are rapidly becoming part of the core.
21
Law (n 5).
22
There are of course a few countries around the world that lack a written constitution at all—these in-
clude the United Kingdom and Israel, for example. But even these exceptions to written constitutionalism
have shown signs of convergence. The United Kingdom’s Human Rights Act 1998 requires the courts to
apply the European Convention of Human Rights and to carry out a ‘weak’ form of judicial review on its
behalf; the Israeli Knesset has written a series of ‘Basic Laws’ that have played a quasi-constitutional func-
tion and been used as a basis for judicial review. See Stephen Gardbaum, ‘How Successful and Distinctive is
the Human Rights Act? An Expatriate Comparatist’s Assessment’ (2011) 74 Mod L Rev 195; Hanna Lerner,
‘Democracy, Constitutionalism, and Identity: The Anomaly of the Israeli Case’ (2004) 11 Constellations 237.
23 Rosalind Dixon, ‘An Australian (Partial) Bill of Rights’ (2016) 14 Int’l J Con L 80; Rosalind Dixon,
‘Partial Bills of Rights’ (2015) 63 Am J Comp L 403.

24 David S Law and Mila Versteeg, ‘The Evolution and Ideology of Global Constitutionalism’ (2011) 99
Calif L Rev 1163.

25 Zachary Elkins, Tom Ginsburg, and Beth Simmons, ‘Getting to Rights: Treaty Ratification,
Constitutional Convergence, and Human Rights Practice’ (2013) 54 Harv Int’l LJ 61.
26 Ibid.
27 Although only at the federal level; state constitutions contain a number of socioeconomic rights. See
Emily Zackin, Looking for Rights in All the Wrong Places: Why State Constitutions Contain America’s Positive
Rights (PUP 2013).
28 Adam Chilton and Mila Versteeg, ‘Rights Without Resources: The Impact of Constitutional Social
Rights on Social Spending’ (2017) 60 JL & Econ 713.

The key point, for our purposes, is that there is considerable agreement across
countries as to the kinds of rights constitutions should include, and even more fun-
damentally, that constitutions should include a robust battery of rights to restrain and
channel state power.
There is a similar empirical consensus about the practice of judicial review.
Ginsburg and Versteeg have shown that the percentage of constitutions explicitly giv-
ing courts power of judicial review has risen steadily over the past century (indeed,
over the past several hundred years), and as of 2014, 83 percent of constitutions now
explicitly authorize constitutional review by courts.29 This near-consensus, of course,
masks significant variation.
There are some notable holdouts. The Netherlands, for example, prohibits consti-
tutional review, and some Nordic countries have historically practiced it very rarely
or not at all.30 But even in these countries, the gap has closed recently, particularly
with increased reliance at the domestic level on rights review under the European
Convention of Human Rights.31
The most notable exception to this trend has in fact occurred within the realm of
constitutional theory, rather than practice. In the last two decades, constitutional
scholars such as Jeremy Waldron and Richard Bellamy have drawn a distinction be-
tween ‘legal’ and ‘political’ theories of constitutionalism, or judicial versus legisla-
tive approaches to rights protection. They have sought to defend political theories
of constitutionalism by drawing on a range of liberal democratic arguments—or by
suggesting that political constitutionalism is in fact more consistent than legal consti-
tutionalism with both liberal and democratic ideals of equality among citizens. This is
a theory that has gained increasing traction among liberal democratic constitutional
scholars and has arguably informed the design of some new Commonwealth consti-
tutional models. But in most countries, it is judicial rather than political rights protec-
tion that remains the dominant liberal democratic model. As we show in Chapter 7,
some authoritarian actors around the world have abused arguments about political
constitutionalism to legitimize practices that allow them to carry out anti-democratic
projects.
There are a number of different models of judicial review. The dominant model of
judicial review in Europe for much of the twentieth century was based on specialized
constitutional courts reviewing bills, usually at the request of political actors, before
they were enacted. This was the so-called ‘Kelsenian’ model proposed by Austrian ju-
rist Hans Kelsen.32 In the Anglo-American world, in contrast, the dominant model
has been one of concrete review of laws after their enactment by a range of trial courts
29 Tom Ginsburg and Mila Versteeg, ‘Why Do Countries Adopt Constitutional Review?’ (2014) 30 J Econ
& Org 587.

30 Ran Hirschl, ‘The Nordic Counternarrative: Democracy, Human Development, and Judicial Review’
(2011) 9 Int’l J Const L 449.

31 See Alyssa S King, ‘New Judicial Review in Old Europe’ (2015) 44 Georgia J Int’l & Comp L 1; Richard
Ekins and Graham Gee, ‘Putting Judicial Power in Its Place’ (2017) 36 U Qld LJ 375.
32 See, eg, John W Boyer, ‘Silent War and Bitter Peace: The Revolution of 1918 in Austria’ (2003) 34
Austrian Hist YB 1; Leo Gross, ‘Hans Kelsen: October 11, 1881–April 15, 1973’ (1973) 67 Am J Int’l L 491,
492; Theo Öhlinger, ‘The Genesis of the Austrian Model of Constitutional Review of Legislation’ (2003)
16 Ratio Juris 206, 214; Georg Schmitz, ‘The Constitutional Court of the Republic of Austria 1918–1920’
(2003) 16 Ratio Juris 240.
and generalized courts of appeal, in cases involving aggrieved individuals. There have
thus been important differences in the timing, nature, and diffusion of constitutional
review across the judiciary. At the same time, there has been an increasing willingness
to combine these different models: specialized constitutional courts have increased
in popularity over time and are now roughly as common as generalized supreme
courts for exercising judicial review,33 but so too has the exercise of concrete forms of
review.34
Recent decades have also seen the development of new models, such as the
‘new Commonwealth model’ that Stephen Gardbaum associates with judicial re-
view in a range of Commonwealth countries including the United Kingdom, New
Zealand, Canada, and some Australian states.35 Courts in these countries can ex-
ercise forms of constitutional review, but lack the proverbial ‘last word’ in constitu-
tional interpretation—in Canada, for example, the federal and provincial legislatures
can override judicial decisions by majority vote; in the United Kingdom, courts can
merely interpret laws to conform, or declare them non-conforming if they do not, but
they cannot actually strike down the law.36 And the rise of this new Commonwealth
model highlights enduring divergence in the manner and strength of judicial review.
We return to this divergence, and its exploitation by authoritarian actors, in Chapter 7.
At the same time, this divergence itself can be seen as evidence of strong convergence
toward including at least some form of judicial review.37
We have focused on rights and judicial review because these appear to be at the
core of the canon of liberal democratic constitutionalism. But of course, there is ample
evidence of the migration of other liberal democratic ideas as well. One of these, re-
cently analyzed by Mark Tushnet, is the addition of independent accountability insti-
tutions, beyond courts, intended to protect sensitive areas necessary for democracy.38
A rapidly increasing number of constitutional orders now include institutions such
as independent electoral commissions, anti-corruption commissions, human rights
commissions or ombudspersons, and media commissions. As Tushnet points out,
the argument for these institutions is that they supplement courts by protecting weak
points of democracy—elections, self-policing by politicians, and protection of mi-
nority rights, for example.39 According to data from the Comparative Constitutions
33Ginsburg and Versteeg (n 29).

34See, eg, recent French adoption of concrete review: King (n 31).
35 Stephen Gardbaum, The New Commonwealth Model of Constitutionalism: Theory and Practice (CUP
2013); Stephen Gardbaum, ‘The New Commonwealth Model of Constitutionalism’ (2001) 49 Am J Comp L
707; Stephen Gardbaum, ‘Reassessing the New Commonwealth Model of Constitutionalism’ (2010) 8 Int’l J
Const L 167.
36 Stephen Gardbaum, The New Commonwealth Model of Constitutionalism: Theory and Practice (CUP
2013); Rosalind Dixon, ‘The Forms, Functions, and Varieties of Weak(ened) Judicial Review’ (2019) 17 Int’l
J Const L 904.
37 Ginsburg and Versteeg (n 29) find that domestic political factors (particularly levels of political compe-
tition) are a better predictor of adoption of judicial review than international patterns of diffusion, contrary
to the standard finding for inclusion of constitutional rights. Nonetheless, judicial review is now nearly uni-
versal, and appears to be ‘sticky’ once adopted.
38 Mark Tushnet, ‘Institutions Protecting Democracy: A Preliminary Inquiry’ (2018) 12 L & Ethics Hum
Rts 181. See also Michael Pal, ‘Electoral Management Bodies as a Fourth Branch of Government’ (2016) 21
Rev Const Stud 85.
39 Tushnet (n 38).
Project, 43 percent of constitutions now make explicit reference to an independent

electoral authority, 38 percent to an ombudsperson, 20 percent to a human rights
commission, 19 percent to a media commission, and 10 percent to an anticorruption
commission.40
This suggests a growing dominance of liberal democratic constitutional design,
even across a number of countries that are not constitutional democracies. Indeed,
several commentators have noted that hybrid regimes, and even many authoritarian
regimes, include these same basic constitutional elements—rights, courts, and other
forms of independent accountability institutions.41 At the level of design, at least, there
is real truth to Fukuyama’s argument. And the evidence for convergence around a lib-
eral democratic model extends beyond design and into the realm of practice.
Both of us have expressed some skepticism about arguments that constitutional
practice is inevitably converging around a single model.42 Convergence often seems
less likely the closer down to ground level one gets—it is one thing for constitutions
to include similar textual features, a claim that now has ample empirical support, but
another for constitutional practitioners such as judges and politicians to actually be
doing the same things across countries. Differences in judicial role and political incen-
tives seem to place natural limits on ground level varieties of convergence.43 It is also
not evident why pressures for policy convergence should always translate into pres-
sures for constitutional rather than legislative convergence, or continue after appro-
priate exceptions or policy ‘enclaves’ are adopted.44
Nonetheless, ideas associated with liberal democratic constitutionalism have had
great influence on constitutional practice in recent years. Consider two brief examples.
One is the doctrine of proportionality, which lays out a general and structured method
for courts to review constitutional claims.45 Under the doctrine, once a court has de-
termined that the government has violated a constitutional right, it asks three sequen-
tial questions: (1) whether the means chosen further a legitimate governmental end;
(2) whether the means chosen are the least restrictive ones to carry out that end; and
(3) whether the benefits gained by the government are proportional to the harms to
the right.46 The doctrine has origins both in German legal science (as expressed by
that country’s Constitutional Court after the Second World War) and international
human rights law, as shown by the jurisprudence of the European Court of Human
40 Data from Comparative Constitutions Project <https://comparativeconstitutionsproject.org/>.

41 Tom Ginsburg and Alberto Simpser, ‘Introduction; Constitutions in Authoritarian Regimes’ in
Tom Ginsburg and Alberto Simpser (eds), Constitutions in Authoritarian Regimes (CUP 2014) 1; Kim
Lane Scheppele, ‘Autocratic Legalism’ (2018) 85 U Chi L Rev 545; Tom Ginsburg and Tamir Moustafa,
‘Introduction: The Functions of Courts in Authoritarian Politics’ in Tom Ginsburg and Tamir Moustafa
(eds), Rule of Law: The Politics of Courts in Authoritarian Regimes (CUP 2012) 1.
42 Rosalind Dixon and Eric A Posner, ‘The Limits of Constitutional Convergence’ (2010) 11 Chi J Int’l
L 399; David Landau, ‘Judicial Role and the Limits of Constitutional Convergence in Latin America’ in
Rosalind Dixon and Tom Ginsburg (eds), Comparative Constitutional Law in Latin America (Edward Elgar
2017) 227.
43 Landau (n 42).
44 Dixon and Posner (n 42).
45 Vicki C Jackson, ‘Constitutional Law in an Age of Proportionality’ (2014) 123 YLJ 3094; Cohen-Eliya
and Porat (n 7); Robert Alexy, ‘Constitutional Rights and Proportionality’ (2014) 22 Revus 51.
46 Moshe Cohen-Eliya and Iddo Porat, ‘Proportionality and the Culture of Justification’ (2011) 59 Am J
Comp L 463; Stone Sweet and Mathews (n 7).

Rights (ECHR).47 But it spread around the world with extraordinary rapidity, be-
coming embraced by courts in civil law and common law countries, as well as those in
developed and developing contexts.48 In Latin America, for example, proportionality
has become a near universal technique.49 The United States is perhaps the world’s most
prominent outlier, although there may be intimations of or a nascent proportionality-
style jurisprudence within the Supreme Court’s approach to various tiers of scrutiny.50
A second, more surprising example is the unconstitutional constitutional amend-
ment doctrine, which holds that courts can strike down not just legislation, but also
constitutional amendments that clash with core constitutional principles. The doc-
trine again has roots in German legal scholarship and design. However, it was devel-
oped by the Indian Supreme Court, which initially held that the rights provisions of
the constitution were unamendable, but later modified its position to hold that consti-
tutional changes at variance with the ‘basic structure’ could not be carried out.51 The
doctrine obviously poses risks to democracy, because it allows courts to block consti-
tutional amendments that may be intended as popular responses to judicial decisions.
In this sense, it threatens to work an extremely strong form of the familiar counter-
majoritarian difficulty.52 Nonetheless, as Roznai demonstrates, it has spread around
the world with stunning success, being adopted by a wide range of countries, again
across different legal traditions, regions, and contexts.53 The standard justification is
that the doctrine, although strong medicine, actually protects the popular will by pre-
venting political actors from subverting the original constituent power of the people.54
We return to the doctrine and its susceptibility to abuse in Chapter 6, when we study
constituent power in more depth.
Liberal democratic constitutional ideas have in large part triumphed not only at
the level of constitutional design, but also closer to practice, in areas such as judicial
doctrine. What explains this success? A full explanation would take us well beyond the
topic of this book. But one important reason is the powerful support structure of ac-
tors promoting these ideas, at different moments.
Constitution-making is sometimes conceptualized as the ultimate manifestation of
national sovereignty. But increasingly, it is permeated by international and transna-
tional influences. Transnational influences on constitution-making have long existed,
for example in the British influence on post-colonial constitutions,55 but they seem to
47
Cohen-Eliya and Porat (n 47).
48
Ibid.
49
Carlos Bernal, ‘The Constitutional Protection of Economic and Social Rights in Latin America’ in
Rosalind Dixon and Tom Ginsburg (eds), Comparative Constitutional Law in Latin America (Edward Elgar
2017) 325.
50 Compare Jackson (n 45); Jamal Greene, ‘Rights as Trumps’ (2018) 132 HLR 28.
51 IC Golaknath v State of Punjab (1967) SCR 762; Kesavananda Bharati v State of Kerala (1973) 4 SCC 225.
52 Garry J Jacobsohn, ‘An Unconstitutional Constitution? A Comparative Perspective’ (2006) 4 Int’l J
Const L 460; Rosalind Dixon and David Landau, ‘Transnational Constitutionalism and a Limited Doctrine
of Unconstitutional Constitutional Amendment’ (2015) 13 Int’l J Const L 606.
53 Yaniv Roznai, ‘Unconstitutional Constitutional Amendments: The Migration and Success of a
Constitutional Idea’ (2013) 61 Am J Comp L 657.

54 Yaniv Roznai, Unconstitutional Constitutional Amendments: The Limits of Amendment Powers (OUP
2017); Joel Colon Rios, ‘Enforcing the Decisions of “The People” ’ (2018) 33 Const Commentary 1.
55 H Kumarasingham, ‘A Transnational Actor on a Dramatic Stage: Sir Ivor Jennings and the Manipulation
of Westminster Style Democracy: The Case of Pakistan’ (2017) 2 UC Irvine J Int’l Trans & Comp L 33.
have gained density and importance in recent years. Of course, domestic actors have
plenty of access and motive to borrow liberal democratic models on their own during
constitution-making moments. A network of transnational actors has also emerged to
promote a certain set of both procedural choices, such as models for drafting bodies
and modes of popular participation, as well as design choices such as the inclusion of
rights, constitutional courts, and other independent bodies.56
The United Nations (UN), for example, has become a major voice shaping
constitution-making processes and texts. A substantial (and constantly growing)
number of constitutions, many but by no means all in post-conflict environments,
have been written under UN auspices since the end of the Cold War.57 The actors staff-
ing these offices advise local constitution-makers on transnational models for both
the process of constitution-making and the substance of constitutional design. More
broadly, even when the UN is not directly involved, there is an increasingly thick net-
work of transnational institutions and advisors ready to give local constitution-makers
similar advice on both the process and substance of constitution-making.58
This kind of support structure also exists at other times and levels. Scholars have
noted a transnational dialogue of judges.59 This dialogue encompasses citation and
cross-influence in opinion writing, but it also includes a series of meetings, facili-
tated through more or less formal global or regional institutions. The annual Global
Constitutionalism Seminar at Yale, which includes a number of prominent judges
from around the world as well as academics, is one important and intellectually se-
rious example, but there are also a growing number of others.60 The burgeoning and
increasingly globalized community of comparative constitutional law academics is
another source of influence. The most prominent members of this community have
played a role as foreign advisers during constitution-making moments and other peri-
ods of reform, whether through international organizations, NGOs, local universities,
or other, less formal channels.61
These transnational sources of influence are matched by equally significant in-
ternational pathways. We have already noted the role of the UN in constitution-
making. Regional human rights bodies, as well as other regional institutions, have also
emerged as a key source of influence. In Europe, of course, the influence of the ECHR
56 See, eg, Elisabeth Perham, Models of External Constitutional Advice (unpublished PhD manuscript);
Lerner, Futscher, and Schlager (n 19); Cheryl Saunders, ‘International Involvement in Constitution Making’
in David Landau and Hanna Lerner (eds), Comparative Constitution Making (Edward Elgar 2019) 69; Tom
Ginsburg, ‘Constitutional Advice and Transnational Legal Order’ (2017) 2 UC Irvine J Int’l, Transn’l, &
Comp L 5; Sara Kendall, ‘Constitutional Technicity: Displacing Politics Through Expert Knowledge’ (2015)
11 L, Culture & Humanities 363; Zaid Al-Ali, ‘Constitutional Drafting and External Experience’ in Tom
Ginsburg and Rosalind Dixon (eds), Comparative Constitutional Law (Edward Elgar 2011) 78; Guenter
Frankenberg, ‘Constitutional Transfer: The IKEA Theory Revisited’ (2010) 8 Int’l J Con L 563.
57 Sripati (n 2); Vijayahshri Sripati, ‘UN Constitutional Assistance Projects in Comprehensive Peace
Missions: An Inventory 1989–2011’ (2012) 19 Int’l Peacekeeping 93.

58 See (n 56). See also ‘Constitution-Building’, International Idea <https://www.idea.int/our-work/what-
we-do/constitution-building>.
59 Anne-Marie Slaughter, ‘Judicial Globalization’ (1999) 40 Va J Int’l L 1103.
60 Yale Law School, ‘Global Constitutionalism Seminar’ <https://law.yale.edu/centers-workshops/
gruber-program-global-justice-and-womens-rights/global-constitutionalism-seminar>.
61 See, eg, International Association of Constitutional Law <https://iacl-aidc.org/index.php/en/>;
International Society of Public Law < https://www.icon-society.org/>.

on domestic constitutional doctrine has been mapped in detail.62 The ECHR, for ex-
ample, played a key role in spreading proportionality throughout Europe;63 it has
also caused a broader convergence in constitutional doctrine across many different
rights.64 Other European institutions have also played a role, including the European
Union (through its Copenhagen criteria, via the European Court of Justice, and
other channels), and the ECHR’s fellow traveler in the Council of Europe, the Venice
Commission. The Venice Commission is an advisory body, staffed by national con-
stitutionalists, that gives advice on constitutional reforms and legislation in light of
‘European constitutional heritage’. The Commission has emerged as a major player
in promulgating standards for liberal democratic constitutionalism, and as such has
played a protagonist’s role in disputes about democratic erosion in Hungary, Poland,
and other countries.65
Europe has the thickest set of international institutions promoting and enforcing
liberal democratic constitutionalism, but significant institutions also exist in other
regions, especially Latin America and Africa. The Inter-American Commission and
Court of Human Rights, for example, have become major voices promoting harmo-
nization of rights interpretation in Latin America. Some of the decisions by the Inter-
American Court have provoked backlash from domestic high courts,66 but it has also
played a major role in shaping domestic constitutional law. Indeed, commentators
have argued that the Court has helped to move toward a regional ius commune.67
Thus, there are a range of both transnational and international institutions and ac-
tors helping to diffuse norms of liberal democratic constitutionalism. This network has
been critiqued on several different grounds. Some scholars, for example, argue that it
reflects a form of Western imperialism, with core states pressuring the periphery into
becoming carbon copies of liberal democratic constitutionalism for a mix of political
and economic motives.68 Some work has noted, for example, that the inter-judicial di-
alogue referenced above is not even-handed.69 Certain courts construct ‘prestige juris-
prudence’ that is widely cited by other courts; justices on these same courts are likely
to be invited as the stars at international conferences. Other courts and justices have
far less influence.
These arguments raise important concerns, even if they are in some respects over-
stated. The ‘club’ of high-profile courts and justices, for example, has been expanded
62 Helen Keller and Alex Stone Sweet (eds), A Europe of Rights: The Impact of the ECHR on National Legal
Systems (OUP 2008); Anne-Marie Slaughter, Alec Stone Sweet, and JHH Weiler (eds), The European Court
and National Courts: Doctrine & Jurisprudence: Legal Change in Its Social Context (Bloomsbury 1998).
63 Cohen-Eliya and Porat (n 7).
64 Alec Stone Sweet, ‘The European Convention on Human Rights and National Constitutional
Reordering’ (2012) 33 Cardozo L Rev 1859.

65 Armin von Bogdandy and Pal Sonnevend (eds), Constitutional Crisis in the European Constitutional
Area: Theory, Law and Politics in Hungary and Romania (Hart 2015); Maartje de Visser, ‘A Critical
Assessment of the Role of the Venice Commission in Processes of Domestic Constitutional Reform’ (2015)
63 Am J Comp L 963.
66 Alexandra Huneeus, ‘Courts Resisting Courts: Lessons From the Inter-American Court’s Struggle to
Enforce Human Rights’ (2011) 44 Cornell Int’l LJ 493.

67 Armin von Bogdandy and others (eds), Transformative Constitutionalism in Latin America: The
Emergence of a New Ius Commune (OUP 2017).

68 Sripati (n 2).
69 Ran Hirschl, Comparative Matters: The Renaissance of Comparative Constitutional Law (OUP 2014).
The New Authoritarianism 11
in recent years and now includes actors from some countries in the ‘global south’.70
Indeed, countries such as India, Colombia, and South Africa have become major pro-
ducers of liberal democratic doctrines and concepts on such issues as socioeconomic
rights, the role of constitutional courts, the shape of constitution-making processes,
and the unconstitutional constitutional amendment doctrine. Many global south
countries have become key participants in the evolving meaning of liberal democratic
constitutionalism.
Our critique of this network, at any rate, is quite different. Our point is not that these
networks are so strong as to be hegemonic. They may be in some cases. But the larger
problem is that they are often unduly weak or limited in their influence, such that the
seeming triumph of liberal democratic ideas is in some sense more rhetorical and ap-
parent rather than real. The main building blocks of liberal democratic constitutionalism
are commonly turned instead into instruments to undermine it. In this sense, the domi-
nance of liberal democratic models has created space for new forms of authoritarianism,
which in some ways are more durable and better adapted to the international community
than the old ones.
Our argument is a warning to the promoters of liberal democracy; more ambitiously, it
may suggest ways in which future efforts can be better insulated against the very real risks
of abuse.
B. The New Authoritarianism and Shifting Patterns

of Constitutional Borrowing
Liberal democratic constitutional designs, doctrines, and concepts dominate the com-
parative constitutional landscape. But this has not led to the disappearance of authoritar-
ianism. On the contrary, authoritarians have adapted by borrowing liberal democracy to
advance their own ends. Patterns of constitutional borrowing have thus shifted in subtle
ways over the past several decades.
Immediately after the Cold War, the new democracies of Eastern Europe and
the post-Soviet world tended to look ‘west’, relying heavily on the established
democracies of Western Europe and the United States as their models for constitu-
tional design.71 Western democracies, in turn, became confident exporters of the
model of liberal democratic constitutionalism. Advisers from the United States
and elsewhere became key advisers as countries underwent both political tran-
sitions to democratic states and economic transitions to market economies.72
70 On the global south critique, see, eg, Daniel B Maldonado (ed), Constitutionalism of the Global
South: The Activist Tribunals of India, South Africa and Colombia (CUP 2013); Zoran Oklopcic, ‘The
South of Western Constitutionalism: A Map Ahead of a Journey’ (2016) 37 Third World Q 2080; Philipp
Dann, Michael Riegner, and Maxim Bönnemann, The Global South and Comparative Constitutional Law
(OUP 2020).
71 Rosalind Dixon and David Landau, ‘1989–2019: From Democratic to Abusive Constitutional
Borrowing’ (2019) 17 Int’l J Const L 489.

72 See, eg, Ginsburg (n 56); David M Trubek and Alvaro Santos (eds), The New Law and Economic
Development: A Critical Appraisal (CUP 2006); Zaid Al-Ali, ‘Constitutional Drafting and External
Experience’ in Tom Ginsburg and Rosalind Dixon (eds), Comparative Constitutional Law (Edward Elgar
As Krastev and Holmes argue, ‘1989 heralded the onset of a thirty-year Age of
Imitation’.73
This was the period in which Fukuyama could confidently assert the ‘end of his-
tory’: liberal democracy appeared to be the only game in town. There were problems
with the claim from the beginning. Many of the democratic transitions, especially in
the post-Soviet world, never actually took.74 Transitions from authoritarianism to de-
mocracy are extremely difficult, and the process can easily get derailed at a number
of points along the way. Sometimes gains were reversed, and states reverted to a
pure form of authoritarianism; in other cases, they got stuck halfway, for example
in what Levitsky and Way call a ‘competitive authoritarian’ state.75 These states es-
sentially exploited the gaps in the new transnational order: they looked like liberal
democracies—they had elections, courts, rights, and all the other trappings, but they
used a mix of formal and informal methods to tilt those elections heavily in favor of
incumbents.
Furthermore, since the halcyon days of the 1990s, the model of liberal democracy
has come under considerable stress. Much of this stress stems from doubts about its
performance. In developing and developed countries alike, political and academic
critics have argued that liberal democratic constitutionalism has failed to address, or
has even worsened, key flaws in market-based economies—including a persistent de-
cline in work, wages, and benefits for many ordinary citizens; problems of increasing
economic inequality and corporate power; and large-scale environmental challenges,
such as climate change.76 Newer aspects of constitutional design intended to address
these issues, such as socioeconomic rights, often do not seem to be up to the task.77
Another critique, which goes back at least to Schmitt, argues that liberal democracy
unwisely fragments and restrains democratic popular will, by empowering unelected
domestic institutions such as courts, as well as international bodies like the EU and the
ECHR.78
There is little question that these factors have created a backlash. Lately, much of
this backlash has been analyzed through the lens of populism (although we note that
populists are far from the only threats to liberal democracy). Populist politicians use
a discourse that pits the ‘pure people’ against a ‘corrupt elite’.79 The dominant current
view is that populists of both the left and the right are often (although not inevitably)
2011) 78; Frankenberg (n 56); Jacques deLisle, ‘Lex Americana?: United States Legal Assistance, American
Legal Models, and Legal Change in the Post-Communist World and Beyond’ (1999) 20 U Pa J Int’l
Econ L 179.
73 Ivan Krastev and Stephen Holmes, The Light that Failed: Why the West Is Losing the Fight for Democracy
(Pegasus 2020) 5.
74 Martin Krygier, ‘Marxism and the Rule of Law: Reflections After the Collapse of Communism’ (1990)
15 L & Soc Inq 633; Wojciech Sadurski, Poland’s Constitutional Breakdown (OUP 2019).
75 Levitsky and Way (n 13).
76 Rosalind Dixon and David Holden, ‘Fair Markets: Liberalism After COVID’ (unpublished manuscript
2020) (on file with authors).

77 For both the promise and limits, see, eg, Rosalind Dixon and Julie Suk, ‘Liberal Constitutionalism and
Economic Inequality’ (2018) 85 U Chi L Rev 369; Rosalind Dixon, ‘On Law and Economic Inequality: A
Response to Philip Alston’ (2018) 24 Austl J Hum Rts 276.
78 Carl Schmitt, The Concept of the Political (UCP 2008).
79 See discussion in Jan-Werner Müller, What Is Populism (Pennsylvania 2016) 44–8.
a threat to democracy once they take power: because they tend to view themselves as
the exclusive representative of the people, they delegitimate all other political forces as
manifestations of the corrupt elite. They also tend to rail against the existing constitu-
tional and legal order as an instantiation of the old order, and as an illegitimate check
on popular will. Thus, populists may change or rewrite constitutions and laws in an
attempt to entrench electoral advantages and weaken the opposition. The result, as
shown in populist regimes as diverse as Venezuela, Turkey, and Hungary, may be the
erosion or even destruction of democracy.
The discourse by incumbents in many of these new authoritarian states suggests
that the dominance of liberal democracy is eroding. One emerging theme involves
blatantly anti-democratic borrowing between authoritarian regimes. Viktor Orbán,
the Prime Minister who has presided over Hungary during a sustained period of dem-
ocratic decline, offers a striking example.80 Orbán has forged close economic and
political ties with Russia, a striking departure from his predecessors and a shocking
turn-about even from Orbán’s own position in 1989, when he expressed hostility to-
ward the Soviet regime.81 For example, Orbán signed the ‘Paks II’ agreement for a
$10 billion nuclear power facility, as well as the contract for Budapest’s third rail line,
with Russia.82 A Hungarian state university also awarded Putin an honorary degree in
2017.83
And Orbán has at times expressed open disdain for liberal democratic models. In a
now infamous 2014 speech, he announced that the new Hungarian regime would be
an ‘illiberal’ democracy.84 He cited China, Singapore, Russia, and Turkey as examples
of the type of regime he wanted to construct.85 He argued that liberal democracy had
failed as a model both economically and politically, both in Hungary and abroad, and
he called for reconstituting the state on more explicitly nationalist foundations.86 He
also denounced NGOs as foreign imposters who did not represent the authentic will
of the Hungarian people, and suggested more restrictions and oversight over them, a
plan which he has since carried out through new legislation.87
Orbán’s discourse is illustrative of the ways in which some new regimes, led by
populist leaders with authoritarian leanings, have launched incipient challenges to
the practice of liberal democracy in their countries. In the Andean region of Latin
80 Andras L Pap, Democratic Decline in Hungary: Law and Society in an Illiberal Democracy (Routledge
2017).
81 See Daniel Hegedus, ‘The Kremlin’s Influence in Hungary: Are Russian Vested Interests Wearing
Hungarian National Colors?’ (February 2016) 8 DGAPkompakt 1; Dariusz Kalem, ‘Hungary in the Grip
of a Bear Hug, Eur. Council on Foreign Relations’ (5 May 2016) <ecfr.eu>; Peter Kreko and Lorant Gyori,
‘Hungary: A State Captured by Russia’ (Heinrich Boll Stiftung, 11 October 2017); Angela Dewan and
Boglarka Kosztolanyi, ‘Hungary Is Starting to Look a Bit Like Russia: Here’s Why’ (CNN, 6 April 2018);
Zsuzsanna Vegh, ‘Hungary’s “Eastern Opening” Policy Toward Russia: Ties that Bind?’ (2015) 24 Int’l Issues
& Slovak Foreign Pol’y Aff 47.
82 See Hegedus (n 81).
83 See Kreko and Gyori (n 81).
84 See Csaba Toth, ‘Full Text of Viktor Orbán’s Speech at Baile Tusnad (Tusnadfurdo) of 26 July 2014’ (The
Budapest Beacon, 29 July 2014) https://budapestbeacon.com/full-text-of-viktor-Orbáns-speech-at-baile-

tusnadtusnadfurdo-of-26-july-2014/.
85 See ibid.
86 See ibid.
87 See ibid.
America, for example, leaders such as Hugo Chavez (Venezuela), Rafael Correa
(Ecuador), and Evo Morales (Bolivia) all replaced their constitutions immediately
upon winning power. In each case, the leaders argued in favor of a ‘neo-Bolivarian’
over liberal democratic approach, and that the past failures of liberal democracy in
their respective countries necessitated a ‘refounding’.88 Orbán himself, at the head of
the Fidesz party that swept into power into 2010, did something similar, replacing the
existing Hungarian Constitution with a new text that had a far more nationalist tone.
Orbán, once a young Liberal at the fall of the Soviet Union, has adopted a discourse
that is consistently disillusioned and contemptuous of the ‘West’ and of the practice of
liberal democratic constitutionalism.89
But these challenges to liberal democratic constitutionalism, although often drip-
ping with disdain for the ‘West’, are only incipient. They are not fully thought out and
they do not offer a clear alternative to liberal democracy. Orbán’s strange concept of
‘illiberal democracy’, which lumps together a hodgepodge of illiberal and undemo-
cratic states such as Russia, Singapore, Turkey, and China—is an example of this sort
of confusion. Would-be authoritarians are playing off popular discontent with ex-
isting strains of liberal democratic constitutionalism, but they have yet to offer a fully
formed alternative.
Instead, for the most part, would-be authoritarians around the world continue to
pretend that they are liberal democrats, at least much of the time.90 First, the new au-
thoritarian or hybrid regimes often maintain all the building blocks of liberal democ-
racy. They still have rights, courts, electoral commissions, and anti-corruption bodies.
They look like liberal democratic states, with all their bells and whistles, but they do
not act like them. Several scholars have coined terms—‘stealth authoritarianism’ and
‘autocratic legalism’, for example—for the disguised and law-based nature of many
modern authoritarian states.91
Second, many attacks on liberal democracy, oddly enough, are themselves carried
out by using liberal democratic constitutional norms. Scholars have noted the decline
of the military coup, which has steadily decreased in popularity in recent decades.92
Instead, today’s democracies tend to regress into authoritarianism through a com-
bination of formal and informal legal and constitutional changes, such as constitu-
tional replacement and amendment, judicial reinterpretation, and new legislation.
Constitutional amendments and new constitutions have been used, for example, to
extend or to eliminate presidential term limits and to reorganize the composition and
powers of key institutions such as constitutional courts.93 Blatant breaches of the con-
stitutional order such as military coups are out, while the use of law to undermine
88 Mark Tushnet, ‘The New “Bolivarian” Constitutions: A Textual Analysis’ in Rosalind Dixon and Tom
Ginsburg (eds), Comparative Constitutional Law in Latin America (Edward Elgar 2011) 126.
89 See Krastev and Holmes (n 73) 63–6.
90 See Scheppele (n 41).
91 See Ozan O Varol, ‘Stealth Authoritarianism’ (2014) 100 Iowa L Rev 1673, 1677; Scheppele (n 14); Javier
Corrales, ‘The Authoritarian Resurgence: Autocratic Legalism in Venezuela’ (2015) 26 J Democracy 37.
92 See, eg, Nicolay Marinov and Hein Goemans, ‘Coups and Democracy’ (2014) 44 Brit J Pol Sci 799
(finding that the frequency of coups has declined and that their significance for democracy has become
more ambiguous); Ozan O Varol, ‘The Democratic Coup d’ Etat’ (2012) 53 Harv Int’l LJ 291 (arguing that
some coups have pro-democratic impacts).
93 See Landau (n 14) 200–11 (giving examples).
democracy or maintain authoritarianism is in.94 One of us has called this anti-

democratic use of the tools of constitutional change ‘abusive constitutionalism’.95
Third, would-be authoritarians are turning to similar practices found in true lib-
eral democracies, or the liberal international order, in order to justify their erosion of
the substance of liberal democracy. Orbán, for example, has begun attempts to justify
moves that undermine democracy by pointing to examples of similar practices found
in ‘western democracies’. He justified extensive gerrymandering by pointing to similar
practices in Germany and the United States, and he made similar statements when
changes were made to the appointment procedures and powers of the judiciary and
other independent accountability institutions.96 A 2014 media law gave a new govern-
mental body extensive power to regulate television, print, and online media, which
has been a key strategy for the undermining of democracy in Hungary. Orbán again
justified the law via comparison: he noted that there is not ‘one single paragraph in the
media act that you cannot find in the law of another European country’ and further
argued that any attempts by European institutions to block or amend the law would be
‘discriminatory’.97
And Orbán’s regime undertook a series of formal and informal moves both to
weaken and to establish control over the judiciary. Conceptually, these changes were
justified by his regime with reference to political constitutionalism, the theory devel-
oped by liberal democratic scholars which argues that constitutional commitments
are best protected via more political, and less judicial, forms of constitutional en-
forcement. But Orbán’s advisers used these ideas without reference to the kinds of
underlying political conditions, such as political competition and legislative com-
mitment to constitutionalism, that would make them work effectively as protections
of rights. Once captured, the court became a tool of the regime’s goals, rubber-
stamping its initiatives to consolidate control over the media, close down universi-
ties, and limit immigration in contravention of EU directives.98 The Orbán regime
used political constitutionalism—a key concept within modern liberal democratic
constitutionalism—to legitimate attack on the courts. And once that effort was suc-
cessful, it has used the practice of judicial review itself for anti-democratic goals. We
will return to the abuse of judicial review and political constitutionalism, respectively,
in Chapters 5 and 7.
We will in fact analyze many other examples of abusive borrowing in the coming
chapters. One thing worth noting is how many of these practices draw not only on the
discourse of liberal democratic constitutionalism, but also on international human
rights law and related branches of international law. This ought to be unsurprising,
given how intertwined the two communities have become. Across parts of Latin
94 See Varol (n 91) 1677; Alvin YH Cheung, ‘For My Enemies, the Law’: Abusive Legalism (JSD Thesis,
New York University School of Law, 2018) (on file with authors).
95 See Landau (n 14) 195.
96 See Kim Lane Scheppele, ‘Worst Practices and the Transnational Legal Order (or How to Build a
Constitutional ‘Democratorship’ in Plain Sight)’ Lecture at the University of Toronto (November 2016).
97 Jennifer Rankin, ‘Orbán Defends Media Law’ (Politico, 1 January 2011) <https://www.politico.eu/ar-
ticle/Orbán-defends-media-law/>.
98 Gabor Halmai, ‘The Hungarian Constitutional Court and Constitutional Identity’ (Verfassungsblog,
10 January 2017) <https://verfassungsblog.de/the-hungarian-constitutional-court-and-constitutional-

identity/>.
America, for example, courts have drawn heavily on international and regional norms
governing the right to political participation to strike down limits on presidential re-
election. These decisions were issued at the behest of powerful leaders seeking to re-
main in office indefinitely, generally under conditions where observers have raised
significant doubts about the quality of democracy. Yet the nature of Latin American
caudillismo has changed: instead of the old school strongman refusing to leave of-
fice in defiance of constitutional norms and with the backing of the military; the new
would-be dictator secures the backing of a favorable judicial decision by a packed con-
stitutional court, wielding arguments bearing the imprimatur of constitutional and
international law.
C. The Significance of Abusive Constitutional Borrowing
In an ironic sense, the prevalence of abusive borrowing of liberal democratic constitu-

tionalism for authoritarian ends is a testament to the success of the pro-democracy net-
work identified above. While analysts at the end of the Cold War were wildly optimistic
about the extent to which the world would actually become liberal democratic, they were
correct that the forms of liberal democratic constitutionalism would become hegemonic
over at least many regions of the world. Put another way, the grammar of liberal demo-
cratic constitutionalism—various forms of rights, now normally including both second
generation socioeconomic rights and third generation rights such as environmental
rights, the architecture of the separation of powers, judicial review, and increasingly other
‘independent accountability institutions’ such as ombudspersons and anti-corruption
commissions as well—is now dominant and expected in most contexts where new consti-
tutions are being written.
Both international and transnational actors have succeeded not only in spreading
liberal democratic norms, but also in crowding out open forms of authoritari-
anism in many regions. Consider, for example, the decline of military coups noted
above. Many parts of the world, including Latin America and Africa, now have re-
gional bodies armed with ‘democracy’ clauses.99 These clauses allow for suspen-
sion, sanctions, or other consequences for certain kinds of openly anti-democratic
actions, such as (to use the Latin American phraseology of the Organization of
American States), ‘an unconstitutional interruption of the democratic order’.100
These clauses are often called ‘anti-coup’ clauses, and they have indeed had some
success in curbing military takeovers of the state. In Latin America, for example, the
clause was activated after the 2009 military removal of President Manuel Zelaya;101
99 See, eg, Antonio Perez, ‘Democracy Clauses in the Americas: The Challenge of Venezuela’s Withdrawal
from the OAS’ (2017) 33 Am U Int’l L Rev 391; Gaspare Genna and Hiroi Taeko, ‘Do Democracy
Clauses Matter? The Effects of Regional Integration Associations on Political Stability and Democratic
Consolidation’ (RSCAS Working Paper 2015).
100 Inter-American Democratic Charter (2001), art 19 (allowing suspension in the case of an ‘unconsti-
tutional interruption of the democratic order or an unconstitutional alteration of the constitutional regime
that seriously impairs the democratic order in a member state’).
101 ‘Press Release: OAS Suspends Membership of Honduras’ (OAS, 5 July 2009) <https://www.oas.org/
en/media_center/press_release.asp?sCodigo=e-219/09>.
Significance of Abusive Constitutional Borrowing 17
in Africa, it was triggered after coup attempts in countries such as Mali and Guinea
Bissau.102
One unintended consequence of these improvements in the promotion and en-
forcement of liberal democracy is that authoritarian actors, as William Dobson notes,
‘are far more sophisticated, savvy and nimble than they once were’.103 They understand
that ‘in a globalised world the more brutal forms of intimidation are best replaced by
more subtle forms of coercion’.104 Authoritarianism has become more legalistic in part
as a survival strategy in response to these changes in the transnational and interna-
tional levels.
These shifts make it more beneficial for authoritarian actors to cloak their actions in
the language and techniques of liberal democratic constitutionalism. These pressures
are not evenly distributed across countries and regions; they depend in large part on
the expectations of domestic, regional, and international actors. There are still openly
authoritarian states in some regions—consider the Middle East. But there is also a lib-
eral democratic script that has been followed by many states since the end of the Cold
War, even among those that in reality are authoritarian or hybrid. To some extent, this
may simply reflect isomorphism, especially for those aspects of constitutional design
that can be rendered relatively costless to the regime (such as constitutional rights).105
In parts of the world where the regional pressures pushing a liberal democratic
model are especially thick and powerful, such as Europe, one would expect the ten-
dency toward abusive constitutional borrowing to be especially strong. There, both
Council of Europe institutions (such as the ECHR and the Venice Commission) and
EU institutions to a degree have a mandate to protect and promote liberal democ-
racy, and there are no real counter-examples to liberal democratic governance.106 To
a lesser but still considerable degree, though, similar dynamics exist in Latin America
and even Africa, where international institutions have increasingly promoted demo-
cratic norms and sanctioned obvious non-compliance with those norms (in the form,
for example, of a coup d’etat).107
Regimes may gain a series of advantages from clothing their authoritarian moves in
the guise of liberal democracy. One potential benefit is that using a liberal democratic
tool may obscure the true intent or effect of a maneuver. Of course, in many cases close,
sophisticated observers will have a sense of what is going on. But the relevant audiences
for political change are heterogeneous, and at any rate much broader than the set of
sophisticated observers or analysts. Important domestic constituencies, for example,
102 See J Shola Omotola, ‘Unconstitutional Changes of Government in Africa: What Implications for
Democratic Consolidation?’ (Nordiska Afrikainstitutet Discussion Paper 70, 2011) <http://www.diva-

portal.org/smash/get/diva2:478511/FULLTEXT01.pdf>.
103 William J Dobson, The Dictator’s Learning Curve: Inside the Global Battle for Democracy (Random
House 2013).
104 Gabor Halmai, ‘Legally Sophisticated Authoritarians: The Hungarian Lex CEU’ (Verfassungsblog, 31
March 2017) <http://verfassungsblog.de/legally-sophisticated-authoritarians-the-hungarian-lex-ceu/>.

105 David S Law and Mila Versteeg, ‘The Evolution and Ideology of Global Constitutionalism’ (2011) 99
Calif L Rev 1163, 1163–4; John W Meyer and others, ‘World Society and the Nation-State’ (1997) 103 Am J
Soc 144.
106 Eg, Scheppele (n 14); Jan-Werner Muller, ‘Should the EU Protect Democracy and the Rule of Law
Inside Member States?’ (2015) 21 Eur LJ 141.

107 Eg, Morton H Halperin and Mirna Galic (eds), Protecting Democracy: International Responses
(Lexington 2005).
may still misunderstand abusive constitutional borrowing as a pro-democratic rather

than anti-democratic move, giving it increased legitimacy. At the very least, this form
of borrowing may muddy the waters. This ambiguity may give would-be authoritar-
ians an important rhetorical tool to convince supporters and other domestic actors
that they are advancing rather than attacking democratic principles.
Even where abusive constitutional borrowing does not play this concealment or
obscuring role, it may still play other valuable functions for the regime. It may, for ex-
ample, raise the costs of a strong negative response from transnational or international
actors. Even where international actors understand the true intent or likely effect of a
given move, they may still have more difficulty calling out or sanctioning a regime that
clothes its actions under the guise of liberal democratic constitutionalism. This is in part
due to well-founded concerns about external actors intervening too aggressively in do-
mestic constitutional disputes.108 Constitutional interpretation is, of course, both prone
to inevitable ambiguity and often bound up with local techniques and concerns.109 Thus,
even a dubious legal decision that does significant damage to democracy may meet a
muted international reaction out of concern that international actors may be misunder-
standing or misinterpreting the dispute. In contrast, an authoritarian actor who violates
his or her own law in an obvious way (such as by blatantly ignoring term limits or car-
rying out a military coup) is likely to face a much stronger international response.
Similarly, the international community may sometimes fear that an attack on a
misuse of a design, concept, or doctrine that is central to liberal democracy may be
construed as an attack on that design, concept, or doctrine itself. For example, trans-
national or international actors may fear that by calling out or sanctioning an abuse
of judicial review, they are undermining the promotion of judicial independence it-
self, especially in fragile contexts. Promoters of these concepts may therefore fear that
attacking its misuse will damage the norm itself.
Transnational and international actors may also worry that by responding to the
abuse of liberal democratic law and discourse, they are opening themselves up to scru-
tiny of their own practices. Thus, liberal democratic states and actors can criticize mil-
itary coup d’états with the safety of knowing that they are critiquing practices that are
far from their own reality. But misuse of law and liberal democratic norms can hit
much closer to home, opening states up to scrutiny of their own undemocratic or il-
liberal practices or enclaves. This in turn invites charges of hypocrisy, either because
states are ignoring their own problems or because they are calling out other states for
practices they themselves engage in. The potential charge of hypocrisy may at times
make states and international actors less willing to respond aggressively to the abuse of
liberal democratic practices.
There is also one final point, which strikes close to the heart of this book. The pro-
moters of liberal democratic designs, doctrines, and concepts often promote them
(rightly, in our view) as constitutional technologies with a clear teleology attached.
Constitutional courts are intended to protect the democratic constitutional order,110
108 Rosalind Dixon and Vicki C Jackson, ‘Constitutions Inside Out: Outsider Interventions in Domestic
Constitutional Contests’ (2013) 48 Wake FL Rev 149.

109 Ibid.
110 Samuel Issacharoff, ‘Constitutional Courts and Democratic Hedging’ (2010) 99 Geo LJ 961.
Significance of Abusive Constitutional Borrowing 19
constitutional rights to defend the basic interests of especially vulnerable minority

groups,111 etc. And these are claims made at a high level of abstraction; similar but
more precise statements are often made about specific designs or doctrines. To be
sure, there is contestation about the desirability or form of many of these things, but
the point is that their intended substance is promoted alongside their form. In short,
they assume a kind of good faith by borrowers.
Abusive constitutional borrowing, however, works by decoupling this intended
unity of form and substance. All forms of constitutional borrowing involve some de-
gree of adaptation of constitutional norms from one country to another; and this pro-
cess of adaptation inevitably involves at least the partial decoupling of the form of a
constitutional norm from its substance, from accompanying norms and conditions,
or even from its purposes. In the hands of would-be authoritarians, this kind of adap-
tation can also allow liberal democratic norms to be borrowed in the service of anti-
democratic ends.
As we explain in Chapter 3, this can be done in four different ways. The most ob-
vious is by adopting the form of liberal democratic constitutionalism without
intending to import the substance at all—this is a sham form of borrowing, which es-
sentially uses liberal democratic norms like rights as a Potemkin Village behind which
authoritarian projects operate. Other forms involve selective or acontextual forms of
borrowing, which take liberal powers or prohibitions without accompanying demo-
cratic exceptions or immunities, or constitutional institutions without the necessary
supporting social, economic, and political conditions that give those institutions a
pro-democratic operation. The least obvious—but to us one of the most interesting
and dangerous—form is by inverting the intended substance or teleology, making lib-
eral democratic ideas into a kind of boomerang with anti-democratic rather than pro-
democratic effects. It is striking how readily a range of liberal democratic concepts and
institutions—rights, courts, constituent power theory, the unconstitutional constitu-
tional amendment doctrine, and political constitutionalism, to give a partial list—can
be turned into powerful tools to attack democracy.
Many of the central concepts of liberal democratic constitutionalism are double-
edged swords. Liberal democratic norms, doctrines, and concepts can travel without
the teleology that their promoters would hope would be attached to them. When the
teleology is stripped, they become mere tools which can be used efficiently to under-
mine, rather than support, liberal democracy. In those circumstances, it is no wonder
that the use of liberal democratic norms can be attractive to would-be authoritarians
as anti-democratic tools. This, in turn, poses a central challenge to theorists and prac-
titioners of constitutional democracy, both domestically and internationally.
For example, modern theories of constitutional design and practice place great em-
phasis on courts as protectors of the democratic order.112 Courts are thus given an
increasingly high number of powers, and demands, as a result. But this centralization
of power and responsibility in apex courts makes them effective tools to carry out the
111 John H Ely, ‘Democracy and the Right to Be Different’ (1981) 56 NYU L Rev 397; Ronald Dworkin,
Freedom’s Law: The Moral Reading of the American Constitution (OUP 1999).
112 Tom G Daly, ‘The Alchemists: Courts as Democracy-Builders in Contemporary Thought’ (2017) 6
Global Constitutionalism 101.

opposite set of tasks: consolidating power for the regime and repressing the opposi-
tion. A similar point holds for other institutions charged with protecting democracy
in the modern world: electoral commissions and anti-corruption bodies are given
considerable amounts of power to maintain even electoral playing fields, but if cap-
tured by a regime, they can efficiently carry out the opposite function. Furthermore,
modern constitutional design includes an increasing (and increasingly complex) set of
constitutional rights. These rights can sometimes be enforced in such a way as to con-
solidate power for the regime, and to sideline rather than empower minority groups.
How should the liberal democratic community respond to these challenges? Our
main goal is to analyze a phenomenon that has been overlooked by comparative
constitutional law scholarship and by many of those promoting liberal democratic
constitutional ideas. Just as David Kennedy sought to raise awareness among the in-
ternational law community about the ‘dark side’ of international humanitarian and
human rights law,113 we seek to clarify an important dark side that shadows liberal
democratic constitutionalism.
This awareness in turn has implications on at least three levels. First, monitoring
and enforcement of domestic developments by the international and transnational
communities, and the appropriate level of skepticism (or realism) that should be
expressed and acted upon in the face of dubious actions taken in the name of liberal
democracy. Second, the development and diffusion of liberal democratic designs, doc-
trines, and concepts, where key players should take a more defensive approach that is
sensitized to the (often very high) risk of abuse. We call this approach ‘abuse-proofing’
liberal democratic norms. Third, the level at which liberal democracy is debated and
discussed. The phenomenon of abusive constitutional borrowing is a kind of perverse
by-product of the dominance of liberal democratic forms, even in an era where its
underlying assumptions have fallen under sharp attack. In this sense, the narrowness
of current designs and debates may invite subversion, rather than the more open and
honest kind of contestation that would help to heal and improve the wobbling but in-
valuable edifice of liberal democratic constitutionalism.
D. The Plan of the Rest of this Book
Chapters 2 and 3 flesh out the basic concept of abusive constitutional borrowing.
Chapter 2 begins by clarifying our concept of democratic ‘abuse’, which (as in our
other work on abusive forms of constitutional change) depends on a relatively min-
imalist, electoral conception of democracy familiar from recent work on democratic
erosion in both political science and comparative constitutional law. It is a concept
we refer to as the ‘democratic minimum core’. This definition is not necessarily in-
compatible with the embrace of thicker, more maximalist definitions of democracy in
other contexts, but it provides a useful yardstick for making judgments about demo-
cratic backsliding or erosion. Chapter 2 also explores the variety of ways in which po-
litical actors may achieve ‘abusive’ forms of constitutional change—including formal
113 David Kennedy, The Dark Sides of Virtue: Reassessing International Humanitarianism (PUP 2005).
The Plan of the Rest of this Book 21
constitutional amendment and replacement, the amendment or repeal of constitu-

tional or quasi-constitutional statutes, processes of judicial interpretation, and various
policy ‘workarounds’.114
Chapter 3 extends this analysis to the domain of constitutional comparison and
borrowing. It argues that abusive constitutional borrowing involves the appropriation
of liberal democratic norms with the effect of making the political system significantly
less democratic. Chapter 3 also introduces a typology of four forms of abusive con-
stitutional borrowing: ‘sham’ borrowing, which seeks to borrow liberal democratic
forms while suppressing the substance; selective borrowing, where a would-be au-
thoritarian selects only part of a norm in order to magnify its anti-democratic effect;
acontextual borrowing, where norms are purposefully transplanted to new political
and social contexts where they will have the opposite of the intended effect; and ‘anti-
purposive’ borrowing, which makes liberal democratic ideas into boomerangs that
attack rather than fortify constitutional democracy.
Chapters 4 through 7 consider a series of examples, chosen both to convince the
reader that the phenomenon is empirically significant and to give a sense of its dy-
namics. Throughout, we draw on a wide range of examples from Africa, Asia, the
Americas, and Europe, and in doing so hope to address recent critiques of the field
of comparative constitutional law as focused only on the usual suspects.115 While we
shed new light on well-studied cases such as Poland, Hungary, and Venezuela, we also
branch out to show how the same logic operates in other contexts such as Nicaragua,
Rwanda, Cambodia, Thailand, and Fiji.
Chapters 4 and 5 focus on perhaps the two bedrocks of modern liberal democratic
constitutionalism: rights and courts (or more precisely, the practice of judicial review).
Despite their centrality to the overarching project of liberal democracy, both can
readily be used to consolidate power and to repress opposition groups. In Chapter 4,
we show how hate speech laws and gender quotas have enhanced authoritarianism
in Rwanda, anti-Holocaust memory laws have been turned into tools to threaten po-
litical opponents in Poland and Russia, voting rights discourses have helped to tilt
electoral playing fields in Fiji and Hungary, and a sham-like commitment to environ-
mental rights aided the consolidation of power in Ecuador.
Chapter 5 draws on a wide range of examples, but focuses most centrally on the
many ways in which the Venezuelan Supreme Court repressed the opposition-held
Congress following the landslide 2015 election, and on how high courts in Cambodia
and Thailand used militant democracy principles to ban parties in a way that under-
mined, rather than protected, democracy. In fact, many of the examples in this book
involve courts abusing liberal democratic doctrines, highlighting both the very high
levels of deference courts are given in the modern transnational legal order and the
relative ease with which these institutions can be redeployed to advance authoritarian
projects. Courts have been conceptualized in the literature as more or less effective
shields of the liberal democratic order;116 we show how they can be turned into pow-
erful tools to undermine democracy.
114 Mark Tushnet, ‘Constitutional Workarounds’ (2008) 87 Tex L Rev 1499.

115 Hirschl (n 69).
116 Issacharoff (n 110).
Chapters 6 and 7 expand outward a bit, while retaining a focus on ideas tightly linked
to liberal democracy. Chapter 6 analyzes a set of ideas linked to constituent power, or
the insistence on popular democratic will as the basis for the legitimacy of constitu-
tional institutions. Both the assertion of all power as stemming ultimately from ‘the
people’, and the limitations that this assertion might impose on the amending power
of ordinary political institutions, have become important tools for would-be authori-
tarians. We show how leaders in Venezuela and Ecuador have convoked Constituent
Assemblies to consolidate power, as well as how many autocratic leaders throughout
Latin America have wielded the unconstitutional constitutional amendment doctrine
and related ideas to excise presidential term limits based on a purported human and
constitutional right to re-election. Authoritarians have also abused supportive inter-
national law norms designed to buttress domestic popular sovereignty. Here we con-
sider the use of an ‘unconstitutional government’ argument to legitimate a military
coup by the Fijian Human Rights Commission, and the deployment of national iden-
tity and constitutional pluralism arguments by the Hungarian and Polish regimes to
shield anti-democratic or illiberal maneuvers from scrutiny by the European Union.
Chapter 7 looks at the concept of political constitutionalism, an idea with deep
grounding in liberal democratic scholarship and practice, and which asserts that con-
stitutional commitments are best enforced via more political, and less judicial, forms
of enforcement. In Poland and Hungary, political constitutionalist ideas were abused
to justify the weakening and capture of independent judiciaries. And in Israel, allies of
Prime Minister Netanyahu have recently attempted to borrow the Canadian model of
‘New Commonwealth Constitutionalism’ in order to derail an ongoing criminal pro-
cess against him.
Finally, Chapter 8 concludes by examining the implications of our analysis. We con-
tend that abusive constitutional borrowing poses an extraordinary challenge for ana-
lysts and promoters of liberal democracy. The new, more sophisticated, and legalistic
form of authoritarianism with which it is associated is well adapted to thrive in the
modern transnational order. But we think that a greater awareness of this dark side of
liberal democracy can be used to improve monitoring and enforcement at the interna-
tional level, the design and shaping of liberal democratic constitutional norms (partic-
ularly what we call ‘abuse-proofing’), and the continuing dialogue about the nature of
liberal democracy itself.
2
Democracy and Abusive
Constitutional Change
The basic idea of abusive constitutional borrowing is simple: it involves the use of
designs, doctrines, and concepts closely associated with liberal democratic constitu-
tionalism to achieve anti-democratic goals. This chapter focuses on our idea of abuse,
while the next one will explore the role of borrowing.
First, this chapter defines abusive constitutionalism, which (following earlier joint
and individual work) we define as change having a significant negative effect on a
relatively minimalist, electoral account of democracy that we label the ‘democratic
minimum core’.1 Generally, would-be authoritarians do this by making changes that
tilt the electoral playing field heavily in their favor. This minimum core conception
of democracy will serve as our yardstick for evaluating the impact of the borrowing
explored in this book, although we also flesh out its relationship with broader, more
contested ideas of democracy and especially liberal democracy.
Second, we explore the complex relationship between liberal and democratic con-
stitutional commitments. These commitments are analytically distinct, and indeed
often in some tension with one another. But recent empirical experience has suggested
a strong tendency for liberalism and democracy to erode together. We use a minimal
conception of democracy as our yardstick for measuring abuse because of its (relative)
clarity and higher levels of global support. But we are also deeply interested in the
effects of changes on liberal commitments to individual freedom, dignity, and equality,
and we do draw upon a few examples in this book where borrowing has a clearly illib-
eral effect, but a more ambiguous impact on the democratic minimum core.
Finally, we examine the various forms that abusive constitutionalism can take, in-
cluding formal tools such as constitutional amendment and replacement, as well as
sub-constitutional tools like legislation and informal methods of change like judicial
reinterpretation. The ease with which constitutional democracy can be dismantled via
the use of legal rather than extralegal tools has become one of the central problems in
comparative constitutional scholarship.2
A. Abuse and Democracy
What do we mean by labeling a form of constitutional change as ‘abusive’? As in prior

work, we rely on a definition that focuses on the impact of changes on democracy, and
1
David Landau, ‘Abusive Constitutionalism’ (2013) 47 UCDL Rev 189.
2
Kim Lane Scheppele, ‘Autocratic Legalism’ (2018) 85 U Chi L Rev 545; Tom Ginsburg and Aziz Z Huq,
How to Save a Constitutional Democracy (UCP 2018).
Abusive Constitutional Borrowing. Rosalind Dixon and David Landau, Oxford University Press. © Rosalind Dixon and
David Landau 2021. DOI: 10.1093/oso/9780192893765.003.0002
24 Democracy and Abusive Constitutional Change
in particular on the ‘minimum core’ set of rights and institutions necessary for a true
constitutional democratic order.3 We label a given change as abusive if it makes the
constitutional order meaningfully less democratic than it was previously, using this
minimum core conception of democracy as our yardstick.
Of course, democracy itself is a quintessentially complex and contested idea. In the
United States and Europe, for instance, there is a longstanding debate about the re-
lationship between rights-based judicial review and democracy. Some scholars have
defended rights-based review as advancing a substantive conception of democracy,4
whereas others have suggested that it is incompatible with a commitment to demo-
cratic equality in the process of self-government.5 In part, this reflects differing views
about the scope of reasonable disagreement about commitments to freedom, dignity,
and equality for all citizens. It also reflects differences in the degree to which different
democratic theorists emphasize the substantive notions of equality and respect among
citizens in the process of self-government versus more procedural ideas about uni-
versal franchise, political competition, and regular, free and fair elections.6
One notion of democracy entails a commitment to public participation in processes
of government, deliberation about matters of public importance, and substantive and
procedural protection for various individual rights of liberty and equality. This is what
Richard Posner labels ‘concept 1’ democracy.7 In the United States, it is an idea often
associated with the work of John Rawls on political liberalism,8 and Ronald Dworkin
on law and democracy.9 But it is an idea of democracy that has been enriched and re-
fined both in the United States and elsewhere by a vast number of deliberative demo-
cratic and rights-oriented scholars.10
Another understanding of democracy is thinner or more minimalist. It is centered
around the idea that democracy entails a commitment to regular, free and fair elec-
tions, conducted on the basis of universal adult suffrage and competition between two
or more political parties. This is the understanding of democracy Posner calls ‘concept
2’ democracy,11 and which is often associated with the work of Joseph Schumpeter, and
in the United States, with modern election law scholarship on ‘politics as markets’.12
3 See Rosalind Dixon and David Landau, ‘Transnational Constitutionalism and a Limited Doctrine of
Unconstitutional Constitutional Amendment’ (2015) 13 Int’l J Const L 606; Rosalind Dixon and David
Landau, ‘Competitive Democracy and the Constitutional Minimum Core’ in Tom Ginsburg and Aziz Z
Huq (eds), Assessing Constitutional Performance (CUP 2016) 268; David Landau and Rosalind Dixon,
‘Constraining Constitutional Change’ (2015) 50 Wake Forest L Rev 859.
4 Ronald Dworkin, Freedom’s Law: The Moral Reading of the American Constitution (HUP 1996) 29–31.
5 Jeremy Waldron, ‘Judicial Review and the Conditions of Democracy’ (1998) 6 J Pol Phil 335, 335–8.
6 See, eg, Richard A Posner, Law, Pragmatism, and Democracy (HUP 2005) 130–4, 137 (discussing
Concept 1 and 2 democracy).

7 Ibid.
8 John Rawls, Political Liberalism (CUP 2005).
9 Ronald Dworkin, Freedom’s Law: The Moral Reading of the American Constitution (OUP 1999).
10 See, eg, Jurgen Habermas, Habermas on Law and Democracy: Critical Exchanges (UCP 1998); Robert
Alexy, ‘Basic Rights and Democracy in Jurgen Habermas’s Procedural Paradigm of the Law’ (1994) 7 Ratio
Juris 227; Roberto Gargarella, Latin American Constitutionalism, 1810–2010: The Engine Room of the
Constitution (OUP 2013).
11 Posner (n 6).
12 Samuel Issacharoff and Richard H Pildes, ‘Politics as Markets: Partisan Lockups of the Democratic
Process’ (1998) 50 Stan L Rev 643; Joseph A Schumpeter, Capitalism, Socialism and Democracy (3rd edn,
Routledge 1950) 269.
Abuse and Democracy 25
In this book, we focus on what we have elsewhere called the ‘minimum core’ of con-
stitutional democracy: the idea that democracy entails at the very least regular, free
and fair elections, with some minimum level of competition between political parties,
and a set of background conditions that includes respect for those political rights and
freedoms necessary for democratic processes as well as some conception of the rule of
law and protection for independent institutions necessary to oversee and protect the
other elements of a competitive electoral system.13
This definition is not purely procedural in character. To understand why, we must
say a word about modern regime theory in political science. As we noted in the in-
troduction, a mountain of work has now noticed that the ways in which democracies
have eroded has changed. Rather than relying on military coups, modern authoritar-
ians tend to carry out more gradual, legalistic changes to undermine democracy.14
Related to this is the point that regimes lie on a spectrum, with a considerable number
found between relatively pure forms of democracy and dictatorship. These hybrid
regimes combine elements of both archetypes and thus can be slippery to define. Take
Levitsky and Way’s now well-known concept of a competitive authoritarian regime.15
They define competitive authoritarian contexts as those with real elections, and ones
that incumbents could lose, but also where the electoral playing field has been heavily
tilted in favor of incumbents. That is, elections exist, are not sham-like, but are ex-
tremely unfair.
Levitsky and Way also catalog many of the ways in which regimes tilt the electoral
playing field in their favor. This might be done, clumsily, through ballot-stuffing on
the day of the election itself. But this is not the way sophisticated authoritarians op-
erate anymore. Instead, they give themselves huge advantages well before the day of
the election, for example by using captured courts to deregister or defund opposition
parties, by jailing political opponents on trumped up charges, and by dominating the
media landscape and repressing other voices.16
Thus, scholars who focus on relatively thin, procedural definitions of democracy
start with elections, but do not stop there. Dahl, for example, notes that effective polit-
ical competition also requires enjoyment of rights to expression, association, and free
press, in order to put those elections on a level playing field.17 Ginsburg and Huq, in
their recent analysis of democratic erosion, likewise note that democracy includes not
only elections, but also those background rights such as speech and association neces-
sary for democratic processes.18 They also add a third prerequisite: a commitment to
the rule of law, or the idea that the application of law will be stable and predictable, so
that, for example, it is not wielded in a highly discriminatory fashion against political
opponents.19
13 Dixon and Landau, ‘Competitive Democracy and the Constitutional Minimum Core’ (n 3) 268–9.
14 Steven Levitsky and Daniel Ziblatt, How Democracies Die (Broadway Books 2018); Ginsburg and
Huq (n 2).
15 Steven Levitsky and Lucan A Way, Competitive Authoritarianism: Hybrid Regimes After the Cold War
(CUP 2010).
16 Ibid. See also Ozan O Varol, ‘Stealth Authoritarianism’ (2014) 100 Iowa L Rev 1673, 1677; Levitsky and
Ziblatt (n 14); Ginsburg and Huq (n 2).

17 Robert A Dahl, Polyarchy: Participation and Opposition (YUP 1973).
18 Ginsburg and Huq (n 2) 11.
19 Ibid 13.
One could engage more deeply in these debates and canvass more scholarly defini-
tions, but those we have already looked at get at the key point: a minimalist definition
of democracy is indeed thin and focused on elections, but it cannot be too thin. And
it is highly unlikely to be reducible to a simple checklist or disaggregation of institu-
tions or elements.20 The set of rights and other institutions necessary to keep elections
free and fair may vary between time and place, as will the importance of those insti-
tutions (courts, electoral commissions, etc) charged with protecting democracy. The
democratic ‘minimum core’ is likely to have some pretty clear elements everywhere—
freedom of speech, for example, and freedom to form political parties and related
associations—but other elements may differ between contexts.21 Still, keeping the
focus on free and fair elections—and the elements necessary to maintain them—has
important conceptual advantages.
The biggest is (relative) consensus: while acceptance of the value of procedural de-
mocracy with its emphasis on free elections is not universal, it is quite broad. It is an
idea of democracy that almost all political theorists can endorse, regardless of their
particular, potentially more expansive understanding of democracy.22 And this has
the advantage of avoiding contentious debates in political theory about what addi-
tional commitments democracy might require. The phenomenon we seek to highlight
involves the erosion of democracy on almost any definition or measure, and thus is
one which any democracy ought to agree is normatively problematic.23 By contrast,
thicker definitions such as those requiring active opportunities for citizen participa-
tion (which in turn require a thicker set of prerequisites),24 will be more contestable
and more difficult to use as a yardstick.
Our definition also draws on broadly shared understandings of constitutional de-
mocracy at the transnational level, such as those embodied in the Copenhagen criteria
for accession to the European Union—including a commitment to democracy, the
rule of law, human rights, and respect for and protection of minorities.25 The European
Union has also noted that, at minimum, electoral democracy requires: free elections
with a secret ballot, the right to establish political parties without any hindrance from
the state, fair and equal access to a free press, free trade union organizations, freedom
of personal opinion, and executive powers restricted by law and allowing free access to
judges independent of the executive.26
20 Kim Lane Scheppele, ‘The Rule of Law and the Frankenstate: Why Governance Checklists Do Not
Work’ (2013) 26 Governance 559.

21 Dixon and Landau, ‘Competitive Democracy and the Constitutional Minimum Core’ (n 3).
22 Compare Cass R Sunstein, ‘Problems with Minimalism’ (2006) 58 Stan L Rev 1899.
23 See ibid 1899.
24 For example, a tradition of political theory argues that effective rights to political participation re-
quire relatively low levels of socioeconomic inequality between citizens. See, eg, Jack Knight and James
Johnson, ‘What Kind of Political Equality Does Deliberative Democracy Require?’ in James Bohman and
William Rehg (eds), Deliberative Democracy: Essays on Reason and Politics (MIT Press 1998); Phil Parvin,
‘Democracy Without Participation: A New Politics for a Disengaged Era’ (2018) 24 Res Publica 31; Frederick
Solt, ‘Does Economic Inequality Depress Electoral Participation? Testing the Schattschneider Hypothesis’
(2010) 32 Pol Behavior 285.
25 See ‘Presidency Conclusions’ Copenhagen Eur Council (21–22 June 1993) <http://www.europarl.eu-
ropa.eu/enlargement/ec/pdf/cop_en.pdf>.
26 See generally Geoffrey Pridham, ‘The European Union’s Democratic Conditionality and Domestic
Politics in Slovakia: The Mečiar and Dzurinda Governments Compared’ (2004) 54 Eur-Asia Stud 203
(explaining that the European Union’s democratic conditionality depends on candidate countries); Kristi
Abuse and Democracy 27
The concept of the democratic minimum core likewise draws on an overlapping

consensus in the actual practice of the majority of (true) constitutional democra-
cies worldwide.27 It can be traced to the actual commonalities among constitutional
democracies worldwide: provisions of this kind have historically been found in almost
all constitutional democracies and may thus be viewed as something like a ‘demo-
cratic minimum core’ for the creation and maintenance of a constitutional democracy.
Even a relatively thin definition does not obviate the need for difficult judgments,
or deny the existence of borderline cases, as to whether a given change actually does
affect the democratic minimum core. As leading critiques of international rule of law
discourse have noticed for quite some time, list-like approaches as to what will pro-
tect or destroy a democratic regime simply do not work, outside of truly egregious
examples.28
Figuring out whether a given decision or line of decisions has a significant adverse
effect on the democratic minimum core can also be a difficult question. The problem
is that the democratic effect of a decision will often depend on its interaction with
the political and social context, and with other constitutional and legal changes.
Understanding the likely effect of a given change will thus often require careful atten-
tion to context and to other formal and informal changes occurring in a given country.
That is, one cannot simply make a list of ‘abusive’ changes in the abstract.29 And in
some cases, it will only be possible to verify the impact on the minimum core after the
fact, or only with the benefit of hindsight.30
‘Abuse’ can be understood in a thinner or thicker sense, depending on how one
thinks about intent. The thinner version focuses only on the effect of relevant prac-
tices: in this understanding, constitutional or legal changes could be viewed as ‘abu-
sive’ when they have a significant adverse effect on the minimum core of democracy.
A thicker understanding, in contrast, requires that would-be authoritarians know-
ingly or intentionally take aim at the democratic minimum core—or forms of consti-
tutional ‘bad faith’.31
For some purposes, such as empirical analysis of the damage done to democracy,
motive may make little difference. But the presence or absence of anti-democratic mo-
tive will at times be relevant in determining the appropriate response by international
Raik, ‘EU Accession of Central and Eastern European Countries: Democracy and Integration as Conflicting
Logics’ (2004) 18 East Eur Pol & Societies 567; Michael Emerson and others, ‘The Reluctant Debutante: The
European Union as Promoter of Democracy in its Neighbourhood’ (Ctr for European Policy Studies,
Working Document No 223, 2005) (discussing whether the European Union is a coherent actor in pursuing
its goal of democracy).
27 See Dixon and Landau, ‘Transnational Constitutionalism and a Limited Doctrine of Unconstitutional
Constitutional Amendment’ (n 3) 629–30 (arguing that transnational constitutional practice is a useful

check for courts deploying the doctrine of unconstitutional constitutional amendment).
28 Martin Krygier, ‘The Rule of Law: Pasts, Presents, and Two Possible Futures’ (2016) 12 Ann Rev L & Soc
Sci 199, 212–13; Scheppele (n 20).

29 See Scheppele (n 20) 559–60 (arguing that checklist approaches to rule of law norms can be evaded
through manipulating the interaction effect between different norms or by transplanting norms into dif-
ferent contexts).
30 See ibid 562; Krygier (n 28) 212–13 (calling for an approach to the rule of law that is more sensitive to
context).
31 Compare David E Pozen, ‘Constitutional Bad Faith’ (2016) 129 Harv L Rev 885.
actors and others. Harsh criticism or sanctions may be appropriate when legal or po-
litical actors intentionally destroy their own democratic order; whereas softer meas-
ures may make more sense when these same actors engage in borrowing that harms
the democratic minimum core because of an error or for other reasons. An intent re-
quirement may also be helpful in distinguishing abusive borrowing from several other
related but distinct phenomena—for example, those that involve good faith attempts
to engage in pro-democratic action, but which ultimately misfire. In prior work, we
have focused on a thicker definition of abusive constitutionalism that includes an in-
tent requirement, and we generally do so again throughout this book.32
Relatedly, we emphasize that calling a set of changes abusive need not involve a
broader set of judgments about the ‘goodness’ or ‘badness’ of the motives for action;
it merely denotes that it is intentionally anti-democratic. In some countries, for in-
stance, a history of democratic dysfunction may mean that political elites no longer
have faith in the electoral process to guarantee the basic security, or wellbeing, of cit-
izens. Instead, they may genuinely believe that non-elected forms of government are
the best means of promoting popular as well as elite interests. Or, a series of constitu-
tional reforms may significantly and intentionally erode the minimum core of elec-
toral democracy, as well as inculcating other important changes, such as reducing
socioeconomic inequality or other forms of social inequality. Some analysts, for ex-
ample, have seen the constitutional changes in the Andean countries of Venezuela,
Ecuador, and Bolivia through such a lens.33 In the following chapters, we focus on the
impact on the democratic minimum core, although we return to the ways in which
contemporary debates about liberal democracy might limit discussion of key issues
outside the democratic minimum core in this book’s conclusion.
B. Democracy and Liberalism
Our definition of abuse focuses on a relatively thin, electorally centered notion of de-
mocracy. However, when examining constitutional designs, doctrines, and concepts
that have been borrowed for authoritarian ends, we look at the broader package of lib-
eral democratic constitutionalism. Our goal is thus to show how ideas closely tied to
liberal democratic constitutionalism are being used for anti-democratic ends.
It is worth separating the ‘liberal’ part of liberal democratic constitutionalism from
the ‘democratic’ part. The two concepts are related but distinct. Liberalism, like de-
mocracy, is widely contested and has a complex history.34 We focus in this book on
those elements of liberalism that deal with the limitation of government power and
the protection of individual liberty, dignity, and equality. These elements of liberalism
track core pieces of definitions of constitutionalism, and thus prioritize elements such
as the separation of powers, individual rights, and judicial review.
32 David Landau and Rosalind Dixon, ‘Abusive Judicial Review: Courts against Democracy’ (2020) 53 UC
Davis L Rev 1313.

33 Jorge Gonzalez-Jacome, ‘From Abusive Constitutionalism to a Multilayered Understanding of
Constitutionalism: Lessons from Latin America’ (2017) 15 Int’l J Const L 447.

34 Helena Rosenblatt, The Lost History of Liberalism: From Ancient Rome to the Twenty-First Century
(PUP 2018).
Democracy and Liberalism 29
We acknowledge a broader meaning of liberalism that also foregrounds the eco-

nomic system and foreign relations. To our core definition, for example, classical
liberals might add a commitment to market ordering of the economy (in varying
forms) and international openness both economically and politically. More ‘social’
or democratic liberals might add more extensive guarantees of rights to dignity and
equality—including in the form of various constitutional social rights guarantees, or
public policies designed to ensure universal access to a dignified social minimum.35
We touch on some of these elements of liberalism throughout the book (especially in
the conclusion), but they are less directly relevant to our project.
The relationship between liberalism and democracy is complex. A long line of work
focuses on the tension between the two concepts.36 The constitutional restraints fore-
grounded by liberalism (such as rights, courts, and limited government) can be viewed
as a check on democracy, because they inhibit current majorities, who have won
power electorally, from doing certain things. Recall Orbán’s statement that he wanted
Hungary to be an ‘illiberal’ state. The Prime Minister and Fidesz leader proudly chal-
lenged liberalism, which he identified with foreign imposition by the European Union
and other sources. But he embraced democracy and emphasized that democracy need
not be liberal. Indeed, Orbán argued in his speech that an illiberal democracy would
be more democratic than a liberal democracy because it would sweep away constraints
on the will of the people.
This claim is quite common in recent debates about populism, defined as a polit-
ical ideology wielded by politicians who pit a ‘corrupt elite’ against a ‘pure people’.37
A number of scholars have argued that populists effectively trade the ‘liberal’ aspect
of liberal democratic constitutionalism off against the ‘democratic’ part.38 And the
discourse of populists themselves seems to support such a view. Like Orbán, other
populists have also argued that they are inculcating a majoritarian conception of de-
mocracy while attacking institutions such as courts that protect minority rights.
However, in contexts where democratic erosion is a risk, the theoretical tension
between the two concepts is very often swamped by an empirical tendency for them
to erode together. That is, while there is a theoretical tension between liberalism and
democracy, often attacks on liberalism also end up being attacks on democracy. The
reason why is already implicit in our definition of democracy: while the definition
is minimal and focuses on elections, even a minimal definition must include those
institutions—such as the rule of law and a commitment to at least a core set of rights—
needed to make elections truly fair. Otherwise, even if the ballots are not stuffed on
election day itself, incumbents will be able to tilt the electoral playing field in their
favor. This may explain why ‘illiberal’ democracy seems to be, at best, an unstable re-
gime type—the moves that make a state illiberal also have a strong tendency to make
35 See discussion in Rosalind Dixon and Richard Holden, ‘Fair Markets: Liberalism After Covid’
(Unpublished manuscript, 2020) (on file with author).

36 Cristobal R Kaltwasser, ‘Populism and the Question of How to Respond to it’ in Cristobal R Kaltwasser
and others (eds), The Oxford Handbook of Populism (OUP 2017).

37 See Jan-Werner Müller, What is Populism? (Penguin 2016) 75 (arguing that populist leaders are ‘proto-
authoritarians likely to do serious damage to democratic systems’).

38 For a classic treatment, see Fareed Zakaria, ‘The Rise of Illiberal Democracy’ (1997) 76 For Aff 22. See
also Kaltwasser (n 36).

it more authoritarian. Liberalism and democracy have a strong tendency to erode

together.39
Return to the example of Orbán and his project in Hungary. Fidesz undermined or
captured the Constitutional Court, other elements of the judiciary, and other checking
institutions such as ombudspersons.40 These could be seen as attacks on liberalism,
because they eliminated checks on majoritarian power and the willingness of insti-
tutions to protect individual rights. But they also increased the ability of the party
to entrench its own power, enhancing its ability to tilt elections strongly in its favor.
For example, captured courts can use legal tools to harass regime opponents, and can
rubber stamp initiatives (such as gerrymandering or improper spending of state re-
sources) that might give incumbents additional advantages.41 Similarly, the regime
took formal and informal steps to consolidate power over the media.42 Again, this
significantly impacts liberalism by limiting expressions of social pluralism, but it also
reduces democracy by lessening the ability of opposition actors to get their messages
out. One should thus be skeptical of claims that political actors are attacking liberalism
in the name of majoritarian democracy. Empirically, such claims seem to be dubious
much of the time.
We are of course not arguing that liberalism and democracy are analytically equiv-
alent. Some moves will have a much clearer impact on liberalism than on democracy,
for example—they may reduce enjoyment of rights without significantly tilting the
electoral playing field. Consider some of the other moves made by the Hungarian re-
gime, for example adopting hostile policies toward immigrants or expressing a strong
preference for the majority’s religion in contrast to other faiths. Such moves are plau-
sibly illiberal, but not a major component of electoral deck-stacking.
At the same time, focusing on impacts on democracy, rather than liberalism, as
our yardstick for abuse makes sense in part because commitments to liberalism are
more contestable than those to democracy. Witness Orbán’s discourse, which has been
echoed in more or less explicit terms by other leaders in Eastern Europe and the post-
Soviet world, Africa, Asia, and Latin America: democracy is embraced, while liber-
alism is treated with more suspicion as a Western imposition or unjustified block on
the will of the people. Normatively, it makes more sense to criticize regimes for failing
to live up to democratic commitments that they embrace rather than liberal commit-
ments that they are ambivalent about or openly hostile to. It is true that some author-
itarians around the world reject democracy quite openly—take China, for example.
But those open autocracies are not the focus of this book, and they are not what we
draw upon for our examples.
Does this mean that the impact of an anti-democratic change on liberalism is irrele-
vant? As committed liberal democrats, we do not think so, and we suspect most of our
readers feel the same way. In addition, the network of transnational and international
actors that promote the liberal democratic concepts, doctrines, and designs examined
39 Müller (n 37); Wojciech Sadurski, Poland’s Constitutional Breakdown (OUP 2019).

40 Miklos Bankuti, Gabor Halmai, and Kim Lane Scheppele, ‘Hungary’s Illiberal Turn: Disabling the
Constitution’ (2012) 23 J Democ 138; Renata Uitz, ‘Can You Tell When an Illiberal Democracy Is in the
Making? An Appeal to Comparative Constitutional Scholarship from Hungary’ (2015) 13 Int’l J Const L 279.
41 Uitz (n 40).
42 Ibid.
The Many Forms of Abusive Constitutional Change 31
in this book tend to care not only about their impact on democracy, but also on liber-
alism. Many of our examples in the following chapters will also show how liberal dem-
ocratic designs and doctrines can be used for illiberal as well as anti-democratic ends.
Where appropriate, we draw out this dimension of change as well, even though we do
not use it as our primary yardstick. And in the conclusion, we return to the question
of how liberal democratic constitutionalism could be better protected against the dark
sides we identify. More critically, we suggest that the narrowness of the current debate
about what are and are not acceptable liberal democratic practices may be inhibiting
more constructive forms of engagement (and less abusive borrowing) regarding the
content of liberal democracy.
C. The Many Forms of Abusive Constitutional Change
How do would-be authoritarian actors carry out anti-democratic constitutional

change? In other words, how do they erode or attack the democratic order? We have
already noted a shift from extra-legal methods (such as coups) toward more gradual,
legalistic methods. There are many different forms of abusive constitutional change.
Indeed, the different forms of constitutional change we will identify in this section—
constitutional versus sub-constitutional change, and informal versus formal change—
are really just a typology of the different ways in which constitutional change occurs
in countries around the world. Perhaps it is not a surprise that all of these mechanisms
are susceptible to abuse. That is, they can all be used for anti-democratic as well as pro-
democratic ends.
A very common tool is reliance on the well-known procedures of formal constitu-
tional change: constitutional amendment and replacement.43 Amendments, for ex-
ample, are commonly used to consolidate executive power, undermine the electoral
rights of the opposition, or attack judicial independence. Formal amendment may
often be necessary to change certain kinds of provisions, such as those that are highly
specific.44 A good example—and the focus of many recent and potentially abusive
amendments around the world—are changes to executive term limits so as to allow
chief executives to remain in power indefinitely.
Wholesale constitutional replacement or the making of a new constitution, in turn,
potentially allows would-be authoritarians to change a large number of formal rules at
once.45 Replacement thus may prove to be a particularly efficient tool for authoritarian
actors to tilt the electoral playing field in their favor. Additionally, constitution-making
moments may allow would-be authoritarians to rapidly shut down or reconstitute
43 Landau (n 1). On amendment and replacement more generally, see Richard Albert, Constitutional
Amendments: Making, Breaking, and Changing Constitutions (OUP 2019); Rosalind Dixon, ‘Constitutional
Amendment Rules: A Comparative Perspective’ in Tom Ginsburg and Rosalind Dixon (eds), Comparative
Constitutional Law (Edward Elgar 2011) 96.
44 Rosalind Dixon, ‘Updating Constitutional Rules’ (2009) Sup Ct Rev 319.
45 David Landau, ‘Constitution-Making Gone Wrong’ (2012) 64 Ala L Rev 923; William Partlett, ‘The
Dangers of Popular Constitution-Making’ (2012) 38 Brook J Int’l L 193; David Landau and Rosalind Dixon,
‘Constraining Constitutional Change’ (2015) 50 Wake Forest L Rev 859.
opposition-controlled institutions such as legislatures and courts, creating a changed

political environment in which they are able to consolidate power.46
But a focus merely on formal tools of constitutional change is incomplete. A proper
understanding of abusive constitutionalism must broaden the concept in two distinct
but related senses. First, it can be carried out through sub-constitutional changes such
as the passage of key laws. Second, it can also include informal types of constitutional
change, including judicial reinterpretations of existing constitutional provisions.
Following existing conventions, we denote formal constitutional change (amendment
and replacement) as large-C change; both sub-constitutional change and informal
constitutional change that changes constitutional meaning we will call small-c change.
First, would-be authoritarian actors sometimes seek to undermine the democratic
minimum core by passing sub-constitutional legislation that makes changes to key
issues like the scope of executive power, the structure of the judiciary, or electoral
rules. Especially relevant are ‘cardinal’ or ‘organic’ laws that organize major institu-
tions or topics, such as the organization of the judiciary or oversight of the media.47
Constitutions often expressly stipulate that certain areas should be regulated using
these kinds of laws, effectively delegating important issues to the sub-constitutional
level.48 But even laws that are not specifically identified by constitutions as organic or
cardinal may be used to carry out important anti-democratic constitutional changes.
This is especially true if courts captured or cowed by a given regime are willing to
sanction dubious laws that are seemingly in contradiction with the existing constitu-
tional text.
Second, various kinds of informal constitutional change can also impact the dem-
ocratic minimum core. Courts—through judicial reinterpretation—are an obvious
route for carrying out sweeping constitutional changes. While courts are often con-
ceptualized in the literature as a potential defense for liberal democratic constitutions,
they can also be an efficient route for undermining it, especially if they have already
been captured by a regime.49 Some work on US constitutional history and theory sug-
gests that courts become an important mechanism for constitutional change in cases
where the formal amendment rule is inflexible and difficult to use.50 In this US-centric
literature, judicial interpretation becomes an important tool for ‘updating’ parts of an
old and rigid constitutional text. However, it seems clear that judicial interpretation
is an important tool of constitutional change across a wide range of systems. For ex-
ample, regimes may prefer to rely on courts to carry out anti-democratic constitu-
tional changes for a number of reasons, potentially including less cost and visibility,
and greater flexibility in the future.
Beyond courts, regimes also have other tools for carrying out informal constitu-
tional change. Changes in practices by political actors, for example, can consolidate
power in some political institutions while undermining others. Much constitutional
46 Landau (n 45).
47 See Uitz (n 40).
48 Rosalind Dixon and Tom Ginsburg, ‘Deciding Not to Decide: Deferral in Constitutional Design’ (2011)
9 Int’l J Const L 636; Lael K Weis, ‘Constitutional Directive Principles’ (2017) 37 OJLS 916.
49 Landau and Dixon (n 32).
50 Bruce Ackerman, We the People: Foundations (Belknap Press 1991); David Strauss, ‘Common Law
Constitutional Interpretation’ (1996) 63 U Chi L Rev 877; Dixon (n 43) 97-98.

The Many Forms of Abusive Constitutional Change 33
meaning is built over time through such practices, with little or no judicial involve-
ment.51 Sometimes this practice can harden into a constitutional ‘convention’, which
may or may not be judicially enforceable but is still binding on political actors.52 In
other cases, it may simply inform the construction of other constitutional norms, or
support their operation.
These informal changes can of course have either a pro- or anti-democratic valence.
Often, ‘common law’ forms of judicial updating can serve important pro-democratic
goals—by keeping constitutional norms in line with evolving democratic needs and
understanding.53 The reliance on a mix of statutory and popular modes of change has
also been heralded by scholars such as Bruce Ackerman as offering a pro-democratic
path for amending the otherwise extremely rigid text of the US Constitution.54 But
informal constitutional changes of this kind can have anti-democratic motives. They
can, for example, be carried out to undermine checks on political power or consol-
idate electoral advantages for incumbent groups. Indeed, and as is well known, in-
formal constitutional practices can work against formal textual protections for liberal
democratic constitutionalism. Helmke draws out such an example with the historical
practice on the Argentine Supreme Court, where the constitutional text guaranteed
life tenure but the overwhelming informal practice was for each new president to have
his or her own court, thus resulting in mass resignations or removals every time a
change in power occurred.55 A number of different techniques, especially threats and
patronage, were used to achieve this end.
Relatedly, formal constitutional protections often need to be supplemented with
informal norms in order to effectively protect liberal democratic constitutionalism.
Grove, for example, has recently suggested that the formal protections in the US
Constitution leave many routes through which courts could be legally packed, influ-
enced, or stripped of their jurisdiction.56 The US Constitution allows for changes in
the size of the Supreme Court, cuts to judicial budgets (so long as salaries are left in-
tact), and potentially a range of other measures such as the exclusion of certain classes
of cases from the Court’s review power, and the elimination or restructuring of some
or all of the entire lower federal judiciary. She suggests that the real protection for
courts lies in a set of informal norms that governs the measures leaders and the public
are willing to contemplate. By changing these kinds of norms over time, would-be
authoritarians can increase their ability to consolidate power.
The different forms of abusive constitutional change that we have outlined can
act as both substitutes and complements for one another. In some cases, would-be
authoritarians turn to one form of change when another route is blocked. In Poland,
51 Keith E Whittington, Constitutional Construction: Divided Powers and Constitutional Meaning
(HUP 2009).
52 See, eg, James G Wilson, ‘American Constitutional Conventions: The Judicially Unenforceable Rules
that Combine with Judicial Doctrine and Public Opinion to Regulate Political Behavior’ (1992) 40 Buffalo
L Rev 645; Andrew Heard, Canadian Constitutional Conventions: The Marriage of Law and Politics (OUP
1991); Joseph Jaconelli, ‘Do Constitutional Conventions Bind?’ (2005) 64 Cam LJ 149.
53 Strauss (n 50); Dixon (n 43).
54 Compare Ackerman (n 50).
55 Gretchen Helmke, Courts under Constraints: Judges, Generals, and Presidents in Argentina (CUP 2012).
56 Tara Leigh Grove, ‘The Origins (and Fragility) of Judicial Independence’ (2018) 71 Vanderbilt L
Rev 465.
for example, the Law and Justice Party has relied heavily on the passage of new laws
to consolidate power and undermine the opposition, since it has lacked the neces-
sary supermajority to enact formal amendments to the Constitution.57 Likewise, it
has leaned on its capture of key judicial institutions—especially the Constitutional
Court—to validate these laws, many of which are pretty clearly violations of the ex-
isting constitutional text.58 In Venezuela, the Chavez regime drafted a number of laws
to make changes to the institutional design of the state after it lost a 2007 referendum
to enact sweeping (and largely anti-democratic) amendments to the Constitution.
Ordinary laws nonetheless instantiated a number of the changes found in the refer-
endum, such as giving President Chavez more power over subnational officials, which
again were upheld by captured courts.59 Finally, in many recent cases involving the
judicial reinterpretation or excising of presidential term limits, which we cover below
in Chapter 6, incumbent presidents turned to courts precisely because they lacked the
votes or ability to carry out formal methods of constitutional change. In Nicaragua,
for example, President Daniel Ortega asked the Supreme Court to remove presiden-
tial term limits because he lacked the supermajority to carry out formal constitutional
amendment; in Bolivia, President Evo Morales did the same after he lost a popular
referendum seeking to extend term limits so he could run again. In all of these cases,
sub-constitutional and informal methods of change are serving as substitutes for goals
that would otherwise be achieved by formal constitutional change.
At the same time, in most of the major recent cases of democratic erosion, actors
have relied on a broad mix of constitutional and sub-constitutional forms of change,
and formal and informal methods of change. Take Hungary as an example: there the
Fidesz Party, upon taking power, first carried out a series of amendments to weaken
the Constitutional Court and achieve other goals.60 Then it enacted an entirely new
Constitution, which consolidated the party’s power and weakened checks on it.61
Subsequently, it passed a series of laws, especially cardinal laws (of which the new
Constitution makes ample mention). Some commentators have noted that the more
blatantly authoritarian of the Party’s measures have been found in these laws, rather
than in the constitutional text.62 Finally, the Party has captured the upper reaches
of the judiciary, both constitutional and ordinary, and these courts have sanctioned
many of its measures which seem constitutionally problematic.63 The Fidesz Party has
thus used all of the major tools of constitutional change outlined here.
Why do regimes use informal and sub-constitutional forms of abusive change if
they also hold the keys to the formal tools of amendment and replacement? In part,
57 Sadurski (n 39).
58 Ibid.
59 Allan R Brewer-Carias, Dismantling Democracy in Venezuela: The Chavez Authoritarian Experiment
(OUP 2010). It is worth noting that not all of Chavez’s goals were achieved in this way. He also held a 2009
referendum, which was much narrower than the 2007 one and included only one of the goals of the 2007
referendum—eliminating term limits. Presumably the regime felt that eliminating a specific constitutional
provision such as a term limit by the passage of an ordinary law would have been too blatant an instance of
illegality.
60 Bankuti, Halmai, and Scheppele (n 40).
61 Ibid.
62 Uitz (n 40).
63 Ibid.
Conclusion 35
this may be because the various forms of change can often serve as complements as
well as substitutes. For example, laws passed to restructure the power of major insti-
tutions may also require a strategy of capturing the judiciary in order to uphold the
constitutionality of those laws via new and dubious interpretations.
Likewise, formal and informal changes may have a reinforcing relationship in a
variety of different ways. In some cases, for example, formal constitutional changes
may play a legitimation role for the regime—acting as the billboard or public face of
its project—while much of the nitty-gritty work to consolidate power is carried out
through informal or sub-constitutional mechanisms. Likewise, sub-constitutional
changes and judicial interpretations can fill in the details left incomplete by high-level,
formal constitutional projects. Again, in this respect we doubt that abusive projects of
constitutional change really differ from other forms of constitutional change. Projects
of constitutional change routinely proceed through a number of different routes.
Although some recent scholarship suggests a normative preference for formal con-
stitutional change, we doubt that, at least across the board, such a project would be
achievable (or normatively desirable) in practice.64
The fact that abusive constitutional change can be carried out through a number
of different mechanisms, and that these mechanisms sometimes serve as substitutes,
is bad news for those interested in protecting democracy. It tends to make the pro-
ject of constitutional defense more difficult. If designers of democratic constitutions,
and promoters of constitutional democracy, only had to worry about one route, then
they could focus on closing off that route. For example, if the main problem in dem-
ocratic erosion were the use of formal amendment rules for anti-democratic ends,
then designers could focus on shoring up the defenses of that mechanism by making
the constitution more rigid, in part or in whole. This rigidity may itself have many
other costs, but would at least protect against authoritarianism (assuming a demo-
cratic starting point). Some constitutions, like the federal Constitution in the United
States, are indeed so rigid that authoritarian projects via formal constitutional change
are probably unrealistic.65 But this is not the only way in which democracy erodes.
Indeed, making a constitution too rigid may actually incentivize greater reliance
on other routes, such as capturing the courts or replacing the entire constitution. In
some cases, these alternative routes may actually be more destructive of constitutional
democracy.
D. Conclusion
As this chapter has shown, there are many different forms of abusive constitutional
change, defined as change that has a significant negative impact on the democratic
minimum core. The next chapter will draw out what we call abusive constitutional
borrowing: the role that liberal democratic designs, doctrines, and concepts often play
in legitimating many of these anti-democratic moves.
64 Albert (n 43).
65 Aziz Huq and Tom Ginsburg, ‘How to Lose a Constitutional Democracy’ (2018) 65 UCLA L Rev 78.
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precious, is superior to that of coins, which were often carelessly
executed, as being merely designed for a medium of commercial
exchange. High art would not usually spend itself upon small
copper money, but be reserved for the more valuable pieces,
especially those of gold and silver[16]. The subjects of gems are
mostly mythological, or are connected with the heroic cycle; a
smaller, but more interesting number, presents us with portraits,
which however are in general uninscribed. At the same time, by
comparing these with portrait-statues and coins we are able to
identify Socrates, Plato, Aristotle, Demosthenes, Alexander the
Great, several of the Ptolemies, and a few others; most of which
may have been engraved by Greco-Roman artists. But the
catalogue of authentic portraits preserved to us, both Greek and
Roman, is, as K. O. Müller observes, now very much to be
thinned.
16. This remark however must not be pressed too closely. Certain small Greek
copper coins of Italy, Sicily, &c., are exceedingly beautiful.
With regard to ancient iconography in general, coins, without

doubt, afford the greatest aid; but no certain coin-portraits are, I
believe, earlier than Alexander[17]. The oldest Greek portrait-
statue known to me is that of Mausolus, now in the British
Museum; but the majority of the statues of Greek philosophers
and others are probably to be referred to the Roman times, when
the formation of portrait-galleries became a favourite pursuit.
With the Greeks it was otherwise; the ideal was ever uppermost
in their mind: they executed busts of Homer indeed and placed
his head on many of their coins; but of course these were no
more portraits than the statues of Jupiter and Pallas are portraits.
With regard to the relation of Greek archæology to the history of
Greece, both the monuments and the literature are abundant,
and they mutually illustrate one another; and the same remark is
more or less true for the histories of the nations afterwards to be
mentioned, upon which I shall therefore not comment in this
respect.
17. I am aware that there are reasons for believing that a Persian coin preserves a
portrait of Artaxerxes Mnemon, who reigned a little earlier.
From Greece, who taught Rome most or all that she ever
knew of the arts, we pass to the contemplation of the mistress of
the world herself. She found indeed in her own vicinity an earlier
civilisation, the Etruscan, whose archæological remains and
history generally are amongst the most obscure and perplexing
matters in all the world of fore-time. The sepulchral and other
monuments of Etruria are often inscribed, but no ingenuity has
yet interpreted them. The words of the Etruscan and other Italian
languages have been recently collected by Fabretti. There is
some story about a learned antiquary after many years’ research
coming to the conclusion that two Etruscan words were
equivalent to vixit annos, but which was vixit, and which annos,
he was as yet uncertain. We have also Etruscan wall-paintings,
and various miscellaneous antiquities in bronze, and among
them the most salient peculiarity of Etruscan archæology not
easily to be conjectured, its elegantly-formed bronze mirrors.
These, which are incised with mythological subjects, and often
inscribed, have attracted the especial attention of modern
scholars and antiquaries, who have gazed upon them indeed
almost as wistfully as the Tuscan ladies themselves.
But Greece had far more influence over Roman life and art
than Etruria.
Græcia capta ferum victorem cepit, et artes

Intulit agresti Latio.
Accordingly, Greek architecture (mostly of the later Corinthian

style, which was badly elaborated into the Composite) was
imported into Rome itself, and continued to flourish in the Greek
provinces of the empire. Temples and theatres continued much
as before; but the triumphal arch and column, the amphitheatre,
the bath and the basilica, are peculiarly Roman.
The genius of Rome however was essentially military, and the
stamp which she has left on the world is military also. Her
camps, her walls, and her roads, strata viaram, which, like
arteries, connected her towns one with another and with the
capital, are the real peculiarities of her archæology. The treatise
on Roman roads, by Bergier, occupies above 800 pages in the
Thesaurus of Grævius. Instead of bootlessly wandering over the
width of the world on these, let us rather walk a little over those
in our own country, and as we travel survey the general
character of the Roman British remains, which may serve as a
type of all. In the early part of this lecture, I observed that we, in
common with the rest of Western Europe, find in our islands
weapons which belong to the stone, bronze, and iron periods;
and here also, as in other places, the last-named period
doubtless connects itself with the Roman. But besides these, we
have other remains, many of which may be referred to the Celtic
population which Cæsar had to encounter, when he invaded our
shores. These remains may in great part perhaps (for I am
compelled to speak hesitatingly on a subject which I have
studied but little, and of which no one, however learned, knows
very much) be anterior to Roman times. Of this kind are the
cromlechs at Dufferin in South Wales, in Anglesey, and in
Penzance, of which there are models in the British Museum; of
this kind also are, most probably, the gigantic structures at
Stonehenge, about which so much has been written and
disputed. The British barrows of various forms and other
sepulchral remains may also be referred, I should conceive, in
part at least, to the pre-Roman Celtic period. The earlier mounds
contain weapons and ornaments of stone, bronze and ivory, and
rude pottery; the later ones, called Roman British barrows,
appear mostly not to contain stone implements, but various
articles of bronze and iron and pottery; also gold ornaments and
amber and bead necklaces. Other sepulchral monuments consist
merely of heaps of stones covering the body which has been laid
in the earth. Many researches into this class of remains have of
late years been made, and by none perhaps more patiently and
more successfully than by the late Mr Bateman, in Derbyshire.
The archæology of Wales has also been made the special object
of study by a society formed for the purpose. Some tribes of the
ancient Britons were certainly acquainted with the art of die-
sinking, and a great many coins, principally gold, are extant,
some of which may probably be as early as the second century
before Christ. They are, to speak generally, barbarous copies of
the beautiful gold staters of Philip of Macedon, which circulated
over the Greek world, and so might become known to our
forefathers by the route of Marseilles.
With these remarks I leave the Celtic remains in Britain; all
attempts to connect together the literary notices and the
antiquities of the Celts and Druids, so as to make out a history
from them, have been compared to attempts to “trace pictures in
the clouds[18].” Still we may say to the Celtic archæologist,
Θαρσεῖν χρὴ, φίλε Βύττε, τάχ’ αὔριον ἔσσετ’ ἄμεινον.
18. Pict. Hist. of England, Vol. I. p. 59. London, 1837.
One day matters may become clearer by the help of an

extended and scientific archæology.
But of the Romano-British remains it may be necessary to say
something. When we look at the map in Petrie’s Monumenta
Historica Britannica, in which the Roman roads are laid down by
their actual remains, we see the principal Roman towns and
stations connected together by straight lines, which are but little
broken. So numerous are they that we might almost fancy that
we were looking at a map in an early edition of a Railway Guide.
In this county they abound and have been very carefully traced,
and both here and in other counties are still used as actual
roads. In a few instances mile-stones have also been found. In
our own country, cut off, as Virgil says, from the whole world, we
do not expect the splendid monuments of Roman greatness, yet
even here the temple, the amphitheatre and the bath are not
unknown; and in our little Pompeii at Wroxeter we have, if my
memory deceive me not, some vestiges of fresco-painting, an art
of which we have such beautiful Roman examples elsewhere.
But everywhere we stumble upon camps and villas; everywhere
The tesselated pavements shew
Where Roman lamps were wont to glow.
And of these lamps themselves we have an infinite number and

variety, and on many of them representations of the games of the
circus and of various other things, formed in relief; a remark
which may also be made of their fine and valuable red Samian
ware; fragments of which are commonly met with, but the vases
are rarely entire. Of their other pottery, and of their glass and
personal ornaments, and miscellaneous objects, I must hardly
say any thing; but only observe that the Romans have left us a
very interesting series of coins relating to Britain; Claudius
records in gold the arch he raised in triumphant victory over us:
in the same way Hadrian, Antoninus Pius, Septimius Severus,
besides building their great walls against us, have, as well as
Caracalla and Geta, struck many pieces in silver and copper to
commemorate our tardy subjugation. The British emperors or
usurpers, Carausius and Allectus, have also left us very ample
series of coins, and indeed it is by these, much more than by the
monuments of letters, that their histories are known. In the fourth
and fifth centuries the monetary art declined greatly in the
Western Empire, and was on the whole at a very low ebb in the
Eastern or Byzantine Empire, and in the middle ages, generally,
throughout Europe.
At Constantinople a new school of Roman art arose, which
exercised a powerful influence on medieval art in general. Soon
after the foundation of Constantinople, Roman artists worked
there in several departments with a skill by no means
contemptible, though of a strangely conventional and grotesque
character; and from them, as it would seem, the medieval artists
of Central and Western Europe caught the love of the same
crafts, and carried them to much higher excellence. I would
allude in the first place, as being among the earliest, to ivory
carvings, principally consular diptychs. From the time of the
emperors it was the custom for consuls and other curule
magistrates to make presents both to officials and their friends of
ivory diptychs, which folded together like a pair of book-covers,
on which sculptures in low relief were carved, as a mode of
announcing their elevation. From the fourth and fifth centuries
down to the fourteenth we find them, some of the earliest with
classical subjects, as the triumph of Bacchus, probably of the
fourth century; but mostly with Scriptural ones, or with
representations of consuls. Some of these are enriched with
jewellery. The inscriptions accompanying them are either in
Greek or in Latin. In Germany they occur in the Carlovingian
period, though rarely, and in France and Italy later still. Perhaps it
should be mentioned that the ivory episcopal chair of St
Maximian at Ravenna, a work of the sixth century, is the finest
example extant of this class of antiques, and is doubly interesting
as being one of the very few extant specimens of furniture during
the first three centuries of the middle ages. Various casts of
medieval ivories, it may be added, have been executed and
circulated by the Arundel Society.
Another art learnt from Rome in her decline, or from
Constantinople, is the illumination of MSS., which the
calligraphers of the middle ages in all countries throughout
Europe carried to a very high perfection. Perhaps the earliest
example to be named is the Greek MS. of Genesis in the LXX,
now preserved in the Imperial Library at Vienna, probably of the
fourth century. The vellum is stained purple, and the MS. is
decorated with pictures executed in a quaint, but vigorous style.
In these, we find (as M. Labarte[19], a great authority for medieval
art, assures us) all the characters of Roman art in its decline,
such as it was imported to Constantinople by the artists whom
Constantine called to his new capital; and “they have served,” as
he adds, “for a point of departure” in the examination which he
has made of the tendencies and destinies of Byzantine art.
Compare the Vatican MSS. of Terence and Virgil. I cannot be
expected to enter into details about illuminations; they occur in
MSS. of all sorts, more or less, in Europe, down to the sixteenth
century, but especially in sacred books, such as were used in
Divine service. I need only call to your remembrance the
beautiful assemblage exhibited in the Fitzwilliam Museum and in
the University Library, to say nothing of the treasures possessed
by our different colleges.
19. Histoire des Arts au moyen âge. Album. Vol. II. pl. lxxvii. Paris, 1864.
There are many other objects of medieval art not unworthy of

being enlarged upon, which I intentionally pass over lightly, lest
their multiplicity should distract us; thus I will say little of its
pottery, its coins, or of its sculptures and bas-reliefs in stone.
With regard to the first of them, M. Labarte observes: “It is not
until the beginning of the fifteenth century that we find among the
European nations any pottery, but such as has been designed for
the commonest domestic use, and none that art has been
pleased to decorate.” These are objects which the middle ages
have in common with others; and they are objects in which a
comparison will not be favourable to medieval art. Still, we must
take care that a love of art does not blind us to the real value of
such things; they are always interesting for the history of art,
whatever their rudeness or whatever their ugliness; and,
moreover, they are often, as the coins of various nations, of high
historical interest. For examine, on our own series of barbarous
Saxon coins we have not only the successions of kings handed
down to us, in the several kingdoms of the so-called Heptarchy
and in the united kingdom, but also on the reverses of the same
coins we have mention made of a very large number of cities
and towns at which they were respectively struck. For example,
to take Cambridge, we find that coins were struck here by King
Edward the Martyr, Ethelred the Second, Canute, Harold the
First, and Edward the Confessor; also after the Conquest by
William the First and William the Second. We are thus furnished
with very early notices, and so in some measure able to estimate
the importance of the cities and towns of our island in medieval
times; though great caution is necessary here in making
deductions; for no coins appear to have been struck in
Cambridge after the reign of William Rufus. And this seems at
first sight so much the more surprising when we bear in mind
that money was struck in some of our cities, as York, Durham,
Canterbury, and Bristol, quite commonly, as late as the fifteenth
and sixteenth centuries. But, in truth, from the twelfth century
downwards, the number of cities and towns in which lawful
money was struck became comparatively small.
But I must not wander too far into numismatics. The art of
enamelling, peculiarly characteristic of the later periods of the
middle ages, is very fully treated of by M. Labarte, from whom I
derive the following facts. The most ancient writer that mentions
it is the elder Philostratus, a Greek writer of the third century,
who emigrated from Athens to Rome. In his Icones, or Treatise
on Images, the following passage occurs. After speaking of a
harness enriched with gold, precious stones, and various
colours, he adds: “It is said that the barbarians living near the
ocean pour colours upon heated brass, so that these adhere and
become like stone, and preserve the design represented.” It may,
therefore, be considered as established that the art of enamelling
upon metals had no existence in either Greece or Italy at the
beginning of the third century; and, moreover, that this art was
practised at least as early in the cities of Western Gaul. During
the invasions and wars which desolated Europe from the fourth
to the eleventh century almost all the arts languished, and some
may have been entirely lost. Enamelling was all but lost; for
between the third and the eleventh centuries the only two works
which occur as landmarks are the ring of King Ethelwulf in the
British Museum, and the ring of Alhstan, probably the bishop of
Sherburne, who lived at the same time. These two little pieces,
however, only serve to establish the bare existence of
enamelling in the West in the ninth century. But in this same
century the art was in all its splendour at Constantinople, and we
possess specimens of Byzantine workmanship of even an earlier
date. I cannot enter into the various modes of enamelling, which
are fully described by M. Labarte; but merely mention, without
comment, a few of the principal specimens, independently of the
Limoges manufacture, which constituted the chief glory of that
city from the eleventh century to the end of the medieval period.
“This became the focus whence emanated nearly all the
beautiful specimens of enamelled copper, which are so much
admired and so eagerly sought after for museums and
collections.” The principal earlier examples then are these; the
crown and the sword of Charlemagne, of the ninth century, now
in the Imperial Treasury at Vienna; the chalice of St Remigius, of
the twelfth century, in the Imperial Library at Paris; the shrine of
the Magi in Cologne, and the great shrine of Nôtre Dame at Aix-
la-Chapelle, presented by the Emperor Frederick Barbarossa in
the latter part of the same twelfth century. Also the full-length
portrait (25 inches by 13) of Geoffrey Plantagenet, father of our
Henry II., which formerly ornamented his tomb in the cathedral,
but is now in the Museum at Le Mans. The British Museum
likewise contains two or three fine examples; and among them
an enamelled plate representing Henry of Blois, Bishop of
Winchester, and brother of King Stephen.
Very fine also are the extant products of the goldsmith’s art in
the middle ages; which date principally from the eleventh
century, when the art received a new impulse in the West; those
of earlier date, with very few exceptions, now cease to exist.
They are principally chalices, reliquaries, censers, candlesticks,
croziers and statuettes.
Nor can I pass over in absolute silence the armour of the
middle ages. Until the middle of the ninth century it would appear
to have resembled the Roman fashion, of which it is needless to
say anything; but in Carlovingian times the hilts and scabbards of
dress-swords were very highly decorated; and about this period,
or rather later, the description of armour used by the ancients
was exchanged for the hauberk or coat of mail, which was the
most usual defensive armour during the period of the Crusades.
The first authentic monument where this mail-armour is
represented is on the Bayeux tapestry of Queen Matilda,
representing the invasion of England by William Duke of
Normandy in 1066; the most famous example of medieval
tapestry in existence, though other specimens are to be seen at
Berne, Nancy, La Chaise Dieu, and Coventry. The art of the
tapissier, however, in the eleventh century, when the Bayeux
tapestry was made, would appear to have been on the decline.
In the beginning of the fourteenth century plate-armour began to
come into use; and by and by this was decorated with
Damascene work, a style of art applied to the gate of a basilica
in Rome, which was sent from Constantinople, as early as the
eleventh century, but which did not become general in the West
till the fifteenth. To this I may just add, that sepulchral brasses,
on which figures in armour are often elaborately represented by
incised lines, are a purely medieval invention of the thirteenth
century. Sir Roger de Trumpington’s brass at Trumpington is one
of the very earliest examples. But time forbids me to say more of
sepulchral brasses, a class of antiquities almost confined to our
own country, of which we have some few specimens as late as
the seventeenth century, or to do more than allude to the
beautiful sepulchral monuments in stone of the medieval period,
with which we are all more or less familiar.
The most remarkable art to which the middle age gave birth
was oil-painting, the very queen of all the fine arts, though it was
to the age of the Medici that its immense development was due.
Previously painting had been subordinated to architecture; but
now, while mosaics, frescoes, and painted glass remained still
subservient to her, the art of painting occupies a distinct and
prominent rank of its own. It used commonly to be said that the
invention of painting on prepared panel was due to Margaritone
of Arezzo, who died about 1290, and in like manner that John
van Eyck invented oil-painting in 1410. Both these errors have
been propagated by the authority of Vasari. But it is now well
known, and has been conclusively proved, both by M. Labarte
and by Sir C. Eastlake, that these modes of painting are
mentioned by authors who lived more than a century before
Margaritone, in particular by the monk Theophilus, who in the
twelfth century composed a work entitled Diversarum artium
schedula. Paintings in oil either are or lately were in existence
anterior to John van Eyck; for example one at Naples, executed
by Filippo Tesauro, and dated 1309. We must ascend to much
earlier times to discover the true origin of portable paintings, and
we shall find it in the Byzantine Empire. The Greeks, about the
time that the controversy respecting images was rife, multiplied
little pictures of saints; these were afterwards brought over in
abundance by the priests and monks who followed the crusades,
and from the study of them, schools of painting in tempera arose
in Italy, in the twelfth century, at Pisa, Florence and other places.
The Byzantine school, M. Labarte tells us, reigned paramount in
Italy until the time of Giotto, i.e. the beginning of the fourteenth
century, and also in the schools of Bohemia and Cologne, the
most ancient in northern Europe, until towards the end of the
fourteenth century. In this country we have two very early
paintings, one of the beginning and the other of the end of the
same fourteenth century, in Westminster Abbey. The former,
probably a decoration of the high altar, is on wood; it represents
the Adoration of the Magi and other Scriptural subjects, and is
declared by Sir C. Eastlake to be worthy of a good Italian artist of
the fourteenth century, though he thinks that it was executed in
England. The latter is the canopy of the tomb of Richard II. and
Anne, his first wife, representing the Saviour and the Virgin and
other figures. The action and expression are declared by Sir C.
Eastlake to indicate the hand of a skilful painter. In 1396, £20
was paid by the sacrist for the execution of the work. These
remarks must suffice for a notice of medieval painting; the
glorious period of its history belongs rather to the Renaissance,
or post-medieval age.
The only archæological monuments of great importance which
remain to be mentioned are those of architecture, in connection
with the accessories of mosaics, frescoes, and painted glass.
The two former descended from classical times, the last is the
creation of the middle age. Mosaics having been originally used
only in pavements, at length were employed as embellishments
for the walls of basilicas, and, by a natural transition, of
churches. Constantine and his successors decorated many
churches in this manner, and in the East a ground of gold or
silver was introduced below the glass cubes of the mosaics, and
a lustre was by this means spread over the work which in earlier
times was altogether unknown. Thus the tympanum above the
principal door of the narthex of the Church of St Sophia, built by
the Emperor Justinian at Constantinople, is adorned with a
mosaic picture of the Saviour seated, the cubes of the mosaics
being of silvered glass; it is accompanied by Greek texts. This
and other later mosaics are figured by M. Labarte, in his last and
most splendid work, entitled Histoire des Arts au moyen âge;
among the rest a Transfiguration of the tenth century. The
Byzantine art, with its stiff conventionality, prevailed every where
till Cimabue, G. Gaddi, and Giotto imparted to its rudeness a
grace and nobleness which marked a new era. In the vestibule of
St Peter is a noble mosaic, partly after the design of Giotto,
representing Christ walking on the water, and the apostles in the
ship. But the very masters who raised the art to its perfection
brought about its destruction. Painting, restored by these same
great men, was too powerful a rival; and after the sixteenth
century, when it still flourished in Venice under the
encouragement of Titian, we hear little more of mosaics on any
great scale.
Passing over frescoes, which were much encouraged by
Charlemagne, and by various sovereigns and popes during the
middle ages, because the ravages of time have either destroyed
them altogether or left them in a deplorable condition, as for
example in some parish-churches in England, I will make a few
remarks on painted glass, so extensively used in the decoration
of the later churches.
The art of painting glass was unknown to the ancients, and
also to the early periods of the middle ages. “It is a fact,” says M.
Labarte, “acknowledged by all archæologists, that we do not now
know any painted glass to which an earlier date than the
eleventh century can be assigned with certainty.” Two
specimens, and no more, of this century, are figured by M.
Lasteyrie. The painted windows of the twelfth and thirteenth
centuries are nearly of the same character. They consist of little
historical medallions, distributed over mosaic grounds composed
of coloured (not painted) glass, borrowed from preceding
centuries. Fine examples from the church of St Denys and La
Sainte Chapelle at Paris, of the twelfth and thirteenth centuries,
are figured by M. Lasteyrie, and also by M. Labarte, who has
many beautiful remarks on their harmony with the buildings to
which they belong, on the elegance of their form, the richness of
their details, and the brilliancy of their colours. In the fourteenth
century, when examples become common, the glass-painters
copied nature with more fidelity, and exchanged the violet-tinted
masses, by which the flesh-tints had been rendered, for a
reddish gray colour, painted upon white glass, which approached
more nearly to nature. Large single figures now often occupy an
entire window. The improvement in drawing and colouring is a
compensation for the more striking effects of the brilliant yet
mysterious examples of the preceding centuries; and the end of
the fourteenth century is one of the finest epochs in the history of
painted glass. Painting on glass followed the progress of painting
in oils in the age which followed; and artists more and more
aimed at producing individual works; and in the latter half of the
fifteenth century buildings and landscapes in perspective were
first introduced. The decorations which surround the figures
being borrowed from the architecture of the time have often a
very beautiful effect. But the large introduction of grisailles
deprives the windows of this period of the transparent brilliancy
of the coloured mosaics of the earlier glass-painting. In the
sixteenth century, however, glass was nothing more than the
material subservient to the glass-painter, like canvas to the oil-
painter. Small pictures very highly finished were executed after
the designs of Michael Angelo, Raffaelle, and the other great
painters of the Renaissance. “But,” as M. Labarte truly says, “the
era of glass-painting was at an end. From the moment that it was
attempted to transform an art of purely monumental decoration
into an art of expression, its intention was perverted, and this led
of necessity to its ruin. The resources of glass-painting were
more limited than those of oil, with which it was unable to
compete. From the end of the sixteenth century the art was in its
decline, and towards the middle of the seventeenth was” almost
“entirely given up.” Our own age has seen its revival, and though
the success has been indeed great, we may hope that the zenith
has not yet been reached. “It is,” says Mr Winston, “a distinct and
complete branch of art, which, like many other medieval
inventions, is of universal applicability, and susceptible of great
improvement.” I have been a little more diffuse on glass-painting
than on some other subjects, as it is a purely medieval art, and
one which has now acquired a living interest. Various examples
of the different styles will easily suggest themselves to many, or,
if not, they may be studied in the splendid work of M. Lasteyrie,
entitled Histoire de la Peinture sur Verre d’après ses monuments
en France, and on a smaller scale in Mr Winston’s valuable Hints
on Glass-painting.
With regard to the architectural monuments of the medieval
world, I may, in addressing such an audience, consider them to
be sufficiently well known for my present purpose, which is to
give an indication, and little more, of the archæological remains
which have come down to our own days. Medieval architecture is
in itself a boundless subject; and as I have not specially studied
it, I could not, if I would, successfully attempt an epitome of its
various forms of Byzantine, Saracenic, Romanesque, Lombardic,
and of infinitely diversified Gothic. For a succinct yet
comprehensive view of all these and more, I must refer you to Mr
Fergusson’s Handbook of Architecture. Yet when we let our
imagination idly roam over Europe, and the adjoining regions of
Asia and Africa, what a host of architectural objects flits before it
in endless successions of variety and beauty! Think of Justinian’s
Church of St Sophia, which he boasted had vanquished
Solomon’s temple, and again of St Mark’s at Venice, as
Byzantine examples. Think next of the mosque of the Sultan
Hassan, and of the tombs of the Memlooks mingled with lovely
minarets and domes at Cairo; of the Dome of the Rock at
Jerusalem; of the Alhambra in Spain, with all the witchery of its
gold and azure decorations. Float, if you will, along the banks of
the Rhine or the Danube (as many of us have actually done),
and conjure up the majestic cathedrals, the spacious
monasteries and the ruined castles, telling of other days, with
which they are fringed. Let the bare mention of the names of
Milan, Venice, Rome; again of Paris, Rheims, Chartres, Amiens,
Troyes, Rouen, Avignon; and in fine those of Antwerp, Louvain,
and Brussels, suggest their own stories. Yet the magnificent
structures, secular and ecclesiastical, which I have either named
or hinted at, need not make us ashamed of our own country. We
are surrounded on all sides by an archæology which is
emphatically an archæology of progress, and we may justly be
proud of it as Englishmen. In this University and its immediate
neighbourhood we have fine specimens of Saxon, Norman, Early
English, Decorated, and Perpendicular styles of Gothic
architecture; and as regards the last of them, one of the most
splendid examples in the world. In the opinion of competent
judges the English cathedrals, while surpassed in size by many
on the Continent, are in excellence of art superior to those of
France or of any country in Europe. “Nothing can exceed the
beauty of the crosses which Edward I. erected on the spots
where the body of Queen Eleanor rested on its way to London.”
Some of these, Waltham for example, are quite equal to anything
of their class found on the Continent. “The vault of Westminster
Abbey” (says Mr Fergusson, on whose authority I make almost
every statement relating to medieval architecture) “is richer and
more beautiful in form than any ever constructed in France;” the
triforium is as beautiful as any in existence; and its
appropriateness of detail and sobriety of design render it one of
the most beautiful Gothic edifices in Europe.
I thus conclude my sketch, such as it is, of the archæology of
the world. Its aim has been to bring under review the rude
implements and weapons of primeval man; the colossal
structures of civilised man in Egypt and India; the strangely-
compounded palace-sculptures of Assyria and Babylonia; the
exquisitely ornamented columns of Persian halls; the massive
architecture of Phœnicia; the Gothic-like rock-tombs of Lycia; the
lovely temples, and incomparable works of art of every kind,
great and small, of Greece; the military impress of Roman
conquest; the medieval works of art in ivory, in enamel, in glass-
painting, as well as its glorious architectural remains, connecting
the middle ages with our own times. It has been drawn, as I
observed at the outset, under very adverse circumstances, and
must on that account venture to sue for much indulgence. It is
open, no doubt, to many criticisms: I expect to be charged with
grievous sins of omission, and perhaps of commission also: nor
do I suppose that I could entirely vindicate myself from such
charges. Worse than all perhaps, I have exposed myself to the
unanswerable sarcasm that I have talked about many subjects of
which I know but little. If, however, I have been able to compile
from trustworthy sources or manuals so much respecting those
particular branches of archæology which I have not studied, as
to bring before you their salient features in an intelligible manner,
that is enough for my purpose. I want no more, and I pretend to
no more; and I am conscious enough that even this purpose has
been but feebly accomplished. Tediousness, indeed, in dealing
with numerous details could hardly be altogether avoided; but
this is so much lighter a fault than an indulgence in mere
platitudes, running smoothly and amusingly, but emptily withal,
that I shall hear your verdict of guilty with composure.
It now only remains that I should very briefly point out what
qualifications are necessary for an archæologist, and also the
pleasure and advantage which result from his pursuits.
With regard to the first of these matters, the qualifications
necessary for an archæologist, they are to some considerable
extent the same as are necessary for a naturalist.
Like the naturalist, the antiquary must in the first place bring
together a large number of facts and objects. This is, no doubt, a
matter of great labour, but believe me, ‘labor ipse voluptas.’ The
labour is its own ample reward. The hunting out, the securing,
and the amassing facts and objects of antiquity, or of natural
history, are the field-sports of the learned or scientific Nimrod. In
a certain sense every archæologist must be a collector; he must
be mentally in possession of a mass of facts and objects,
brought together either by himself or by others. It is not
absolutely necessary that he should be a collector, in the sense
of being owner of a collection of his objects of study; in some
departments indeed of archæology to amass the objects
themselves is impossible: who, for instance, can collect Roman
roads or Gothic cathedrals? models, plans, and drawings, are
the only substitutes possible. But, with the facts relating to his
favourite objects, and also as much as possible with the objects
themselves, he must be familiar.
Yet this familiarity will not be enough to make him an
archæologist. Such knowledge may be possessed, and very
often is possessed, by a mere dealer in antiquities. The true
antiquary must not only be well acquainted with his facts, but he
must also, when there are sufficient data, proceed to reason
upon them. He puts them together, and considers what story
they have to render up. We saw a beautiful illustration of this in
the joint labours of the Scandinavian antiquaries and naturalists.
The order and sequence of the stone, bronze, and iron ages,
were distinctly made out; and even their chronology may one day
be discovered. The antiquary is enabled to form some judgment
of the civilisation, the arts, and the religion of the nations whose
remains he studies. Very often, as in the Roman series of coins,
he makes out political events in their history, and assigns their
dates. He determines the place of things in the historical series,
much as the naturalist does in the natural series.
Like the naturalist also he must be a man of learning, i.e. he
must be acquainted with what has been written by his fellow-
labourers in the same branch of study. Few know, prior to
experience, what a serious business this is. The bibliography of
every department of archæology, as well as of natural history, is
now becoming immense.
But besides a knowledge of facts, and objects, and books,
there are one or two other qualifications necessary for many
departments of archæology, the want of which has been very
prejudicial to some distinguished writers. Exact scholarship is
one of these qualifications. I do not merely mean that if a man be
engaged in Greek archæology, he must be aware of the
passages of Greek authors, in which the vases or the coins he is
talking about are alluded to, though he must certainly be
acquainted with these, and possess sufficient scholarship to
construe them correctly; but he must also be able to interpret his
written archæological monuments, such as his inscriptions and
the legends of his coins. This is oftentimes no easy matter, and it
requires a knowledge of strange words and dialects. Moreover, if
an inscription or a legend be mutilated (and this is very
frequently the case), unless the archæologist has an accurate
knowledge of the language in which it is written, whatever that
may be, Greek, Latin, Norman-French, or any other, what hope
is there that he will ordinarily be able to restore it, and having so
done interpret it with security or satisfaction? As one illustration
of many, I will cite Prof. Ramsay’s remark on Nibby’s dissertation
Delle vie degli Antichi: “In the first part of this article (on Roman
roads) his essay has been closely followed. Considerable
caution, however, is necessary in using the works of this author,
who, although a profound local antiquary is by no means an
accurate scholar[20].” Mr Bunbury, while pointing out the
advantages which scholars would derive from some
acquaintance with archæology, points out by implication the
advantage which archæologists would derive from scholarship.
“In this country,” says he, “the study of archæology is but too
much neglected; it forms no part of the ordinary training of our
classical scholars at the Universities, and is rarely taken up by
them in after life. It is generally considered as the exclusive
province of the professed antiquarian, who has seldom
undergone that early training in accurate scholarship, which is
regarded, and we think with perfect justice, by the student from
Oxford or Cambridge, as the indispensable foundation of sound
classical knowledge[21].” I think he is a little over-severe on us;
living men like Mr C. T. Newton, Mr Waddington, Mr Vaux, Mr C.
W. King, Mr C. K. Watson, and, last, but not least, like himself, to
whom others might be added, prove that his assertions must be
taken cum grano; even if it be true that this country has produced
no work connected with ancient art which can be compared with
the writings of Gerhard, or Welcker; of Thiersch, or Karl Otfried
Müller[22].
20. See Smith’s Dict. Gr. and Rom. Antiq. s. v. Viæ.
21. Edinburgh Review, u. s.
22. I feel a little inclined to dispute this: Stuart, one of the authors of the Antiquities of
Athens, which have been continued by other very able hands, and have also
been translated into German, may, perhaps, take rank with the authors named in
the text. K. O. Müller himself calls Millingen’s Ancient Unedited Monuments
(London, 1822) “a model of a work;” and though without doubt Millingen is inferior
to Müller in scholarship and in acquaintance with books, he is probably at least
his equal as a practical archæologist. Colonel Leake’s Numismata Hellenica
(London, 1856) may also be cited as an admirable combination of learning with
practical archæology.
Another thing very desirable for the successful prosecution of

some branches of archæology is an appreciation of art. Without
it we cannot judge of the value of many antiques, or enter into
their spirit or feeling; we neither discern their excellencies nor
their deficiencies. Mr King, who has made the province of
ancient gems peculiarly his own, justly calls them “little
monuments of perfect taste, ... only to be appreciated by the
educated and practised eye[23].” Moreover, this is the very
knowledge often so requisite for distinguishing genuine
antiquities from modern counterfeits. The modern forgers, who
fabricate Greek coins from false dies, do not often reach the
freedom and beauty of the originals; though it must be confessed
that some of them, as Becker, have carried their execrable art to
a very high perfection. It is but rarely that these men meet with
the punishment they deserve; yet it is satisfactory to know that
Charles Patin, great scholar and great antiquary as he was, was
banished by Lewis XIV. from his court for ever, for selling him a
false coin of Otho; and that a manufacturer of antiques in the
East, near Bagdad I believe, lately received by order of the
Turkish governor a sound bastinado on the soles of his feet for
reproducing the idols of misbelievers of old time.
23. Antique Gems, Introd. p. xxiii. London, 1860.
A knowledge of natural history in fine is occasionally very

useful to an antiquary. I will give two instances, not at all
generally known, one taken from zoology, one from botany. On
the reverse of the splendid Greek coins of Agrigentum a crab is
commonly represented. To an ignorant eye the crab looks much
like the crab in our shops here in Cambridge; the zoologist
recognises in it the fresh-water crab of the regions of the
Mediterranean; the numismatist, profiting by this knowledge,
sees at once that the type of the coin symbolizes not the harbour
of Agrigentum, as he had supposed, but its river. Again, on the
reverse of the beautiful Greek coins of Rhodes occurs a flower,
about which numismatists have disputed since the time of
Spanheim, whether it was the flower of the rose or of the
pomegranate. Even Col. Leake has here taken the wrong side,
and decided in favour of the pomegranate; the divided calyx at
once shews every botanist that the representation is intended for
the rose, conventional as that representation may be, from which
flower the island derives its name.
These are, I think, the principal qualifications which are
necessary or desirable for the archæologist. It only remains that I
should point out briefly some of the pleasures and advantages
that result from his pursuits. For I shall not so insult any one of
you, who are here present, as to suppose that this question is
lurking secretly in your mind, “Is there any good in archæology at
all? To what practical end do your researches tend?” My learned
predecessor well says that “this question is sometimes put to the
lover of science or letters by those from whom nature has
withheld the faculty of deriving pleasure from the exercise of the
intellect, and he feels for the moment degraded to the level of
such.” It is not so clear however that the fault must be put to the
account of nature. Rather, we may say,
Homine imperito nunquam quidquam injustius,

Qui nisi quod ipse facit, nihil rectum putat.
“No one,” says a Swedish scholar of the seventeenth century,

“blames the study of antiquity without evidencing his own
ignorance; as they that esteem it do credit to their own judgment;
so that to sum up its advantages we may assert, there is nothing
useful in literature, if the knowledge of antiquity be judged
unprofitable[24].” It is doubtless one of the many charms of
archæology that it illustrates and is illustrated by literature;
indeed, some knowledge of antiquity is little less than necessary
for every man of letters. Unless we have some knowledge of the

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Abusive Constitutional Borrowing:

Legal globalization and the subversion

Abusive Constitutional Borrowing

ALSO PUBLISHED IN THIS SERIES

1 David Landau, ‘Abusive Constitutionalism’ (2013) 47 UC Davis L Rev 189.

4 Dixon, ‘Constitutional Rights as Bribes’ (n 2).

1. Introduction: A D ark Side o f Comparative Constitutional Law 1

2. Dem ocracy and Abusive Constitutional Change 23

3. The Concept and Scope o f Abusive Constitutional Borrowing 36

4. The Abuse o f Constitutional Rights 56

5. Abusive Judicial Review: Abusive Borrowing by and of

6. The Abuse o f Constituent Power 116

7. The Abusive Borrowing o f Political Constitutionalism and

8. Can Abusive Borrowing Be Stopped? 176

1. Introduction: A Dark Side o f Com parative Constitutional Law

2. Dem ocracy and Abusive Constitutional Change

3. The Concept and Scope o f Abusive Constitutional Borrowing

4. The Abuse o f Constitutional Rights

5. Abusive Judicial Review: Abusive Borrowing by and of

D. Abusive Judicial Review in Action: Two Case Studies 98

6. The Abuse o f Constituent Power 116

7. The Abusive Borrowing o f Political Constitutionalism and Weak-Form

8. Can Abusive Borrowing Be Stopped? 176

We live in an age of comparative constitutionalism.1 Constitution-making itself, long

Cal L Rev 1163.

War (CUP 2010).

Scheppele, ‘Autocratic Legalism’ (2018) 85 U Chi L Rev 545.

A. The Rhetorical Triumph of Liberal

‘Partial Bills of Rights’ (2015) 63 Am J Comp L 403.

Calif L Rev 1163.

Rights on Social Spending’ (2017) 60 JL & Econ 713.

& Org 587.

(2011) 9 Int’l J Const L 449.

33Ginsburg and Versteeg (n 29).

Project, 43 percent of constitutions now make explicit reference to an independent

40 Data from Comparative Constitutions Project <https://comparativeconstitutionsproject.org/>.

Comp L 463; Stone Sweet and Mathews (n 7).

Constitutional Idea’ (2013) 61 Am J Comp L 657.

Missions: An Inventory 1989–2011’ (2012) 19 Int’l Peacekeeping 93.

International Society of Public Law < https://www.icon-society.org/>.

Reordering’ (2012) 33 Cardozo L Rev 1859.

Enforce Human Rights’ (2011) 44 Cornell Int’l LJ 493.

Emergence of a New Ius Commune (OUP 2017).

B. The New Authoritarianism and Shifting Patterns

Borrowing’ (2019) 17 Int’l J Const L 489.

2020) (on file with authors).

Budapest Beacon, 29 July 2014) https://budapestbeacon.com/full-text-of-viktor-Orbáns-speech-at-baile-

democracy or maintain authoritarianism is in.94 One of us has called this anti-

10 January 2017) <https://verfassungsblog.de/the-hungarian-constitutional-court-and-constitutional-

C. The Significance of Abusive Constitutional Borrowing

In an ironic sense, the prevalence of abusive borrowing of liberal democratic constitu-

Democratic Consolidation?’ (Nordiska Afrikainstitutet Discussion Paper 70, 2011) <http://www.diva-

March 2017) <http://verfassungsblog.de/legally-sophisticated-authoritarians-the-hungarian-lex-ceu/>.

Inside Member States?’ (2015) 21 Eur LJ 141.

may still misunderstand abusive constitutional borrowing as a pro-democratic rather

Constitutional Contests’ (2013) 48 Wake FL Rev 149.

constitutional rights to defend the basic interests of especially vulnerable minority

Global Constitutionalism 101.

D. The Plan of the Rest of this Book

constitutional amendment and replacement, the amendment or repeal of constitu-

114 Mark Tushnet, ‘Constitutional Workarounds’ (2008) 87 Tex L Rev 1499.

A. Abuse and Democracy

What do we mean by labeling a form of constitutional change as ‘abusive’? As in prior