Governance in Illiberal Democracies

Guests featured in this episode:

Professor Andras Sajo, former judge at the European Court of Human Rights & founding Dean of Legal Studies Department at the Central European University,

Democracy in Question?  is brought to you by:

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• The Podcast Company: Novel

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Bibliography: 

1. Constitutional Topography: Values and Constitutions  by Andras Sajo& Renata Uitz (editors) Eleven International Publishing, 2010
2. Ruling by Cheating: Governance in Illiberal Democracy by Andras Sajo, Cambridge University Press, 2021
3. Oxford Handbook of Comparative Constitutional Law Michel Rosenfeld &Andras Sajo (editors) Oxford University Press, 2013

Glossary: 

What is Max Weber’s view on charismatic leadership? 
(at 00:9:20 or pg. 2 in the transcript)

In his essay “The Three Types of Legitimate Rule” published in 1958, the influential German sociologist Max Weber introduced his theory of authority which was based on tripartite classifications of authority: traditional authority, rational-legal authority and charismatic authority (also referred to as charismatic leadership or domination). According to Weber, order is based on two fundamental forms: norms and authority. 

Charismatic leadership, according to Weber, is found in a leader with extraordinary characteristics of individual, whose mission and vision inspire others. In such, this charismatic leader is seen as the head of any social or political movement, sometimes gifted with divine powers such as: religious prophets and Gurus. However, charismatic leadership is considered unstable as it is related to faith and belief; once these fade, the authority and leadership dissolve.

Thus, charismatic authority depends on the extent to which a religious or political figure is able to preserve moral influence and prosperity to his followers. Weber favoured charismatic leadership and saw its inevitable influence over the other two authorities with the use of soft power in both the traditional and legal-rational authorities. Source

What is India’s Citizenship Amendment Act? 
(at 00:21:51 or pg. 5 in the transcript)

In December 2019, the Indian Parliament passed the  Citizenship Amendment Act 2019. The Act amended the law to fast-track citizenship for religious minorities, specifically Hindus, Sikhs, Buddhists, Jains, Parsis and Christians, from Afghanistan, Bangladesh and Pakistan who entered India prior to 2015. However, the Act does not extend to Muslim minorities, for example: the Ahmadiyya from Pakistan; the Rohingya from Myanmar; and the Tamil from Sri Lanka. Opponents of the Act have claimed that it is unconstitutional as it links citizenship to religion and marginalises India’s Muslim population. However, the Government has argued that the law protects religious minorities.

The Act has been referred to the Indian Supreme Court. In January 2020, the Court said it would not put the implementation of the law on hold but asked the Government to respond to the petitions challenging the law’s constitutional validity within a month.

Some Indian states have announced that they will not implement the law. However, the Government has stated that states have a “constitutional duty” to do so.

The Act has led to widespread protests, with activists and human rights organisations, such as Amnesty International, criticising the police and the Government for the response. Source

What is the concept of constitutional patriotism?
(at 00:23:02 or pg. 5 in the transcript)

The purpose of constitutional patriotism, -Jürgen Habermas's well-known theory-  as a set of beliefs and dispositions, is to enable and uphold a liberal democratic form of rule that free and equal citizens can justify to each other. The object of patriotic attachment is a specific constitutional culture that mediates between the universal and the particular, while the mode of attachment is one of critical judgment. Finally, constitutional patriotism results in a number of policy recommendations that are clearly different from policies that liberal nationalists would advocate. Source

Who was Gustav Radbruch?  
(at 00:27:30 or pg. 6 in the transcript)

Gustav Radbruch, German jurist and legal philosopher, one of the foremost exponents of legal relativism and legal positivism. He also served the Weimar government as a Minister of Justice (1921–22; 1923). Radbruch’s legal philosophy grew out of the neo-Kantian principle that law is defined by and depends upon moral values. In such a system, there are no absolutes; thus, the concepts of right and  justice are not absolute but are relative to time and place and to the values of the parties in a given legal proceeding. As a result of Nazi rule in Germany, however, a radical change in Radbruch’s outlook occurred in his later years. He abandoned relativism and turned toward a philosophy of natural law that recognized certain absolute, innate properties of law and justice. Source