Stephen Gardbaum, Comparative Political Process Theory
, 18 Int'l. J. Const. L.
__ (forthcoming, 2020), available at SSRN
The United States is a democracy in crisis. Deep-seated institutional racism and ongoing systemic threats to the political process in the United States demand our active attention. The challenges to American representative democracy that John Hart Ely outlined in Democracy and Distrust—voter suppression and systematic political disadvantage due to discrimination—and his arguments for remedial representative reinforcement seem more salient than ever. But what of the global crisis? Democracies around the world are faltering. Do Ely’s insights have purchase for Poland or Hungary, South Africa or Turkey? Stephen Gardbaum persuasively argues that they do, albeit after some elaboration and refinement, in his new piece, Comparative Political Process Theory, forthcoming this winter in the International Journal of Constitutional Law. (The article will also be the focus of a set of ICON Debate! commentaries, published in the same issue.) Using Ely as inspiration, Gardbaum provides a new and broader framework for identifying and categorizing political process failures in representative democracy, and explores a wider set of remedies for these breakdowns, including—though not limited to—judicial review.
A political process failure is the violation of core democratic procedural values or principles either by “delegitimiz[ing] the relevant process” through a singular grave occurrence, or by “systematically undermin[ing]” them over time. (P. 33.) And to ground the analysis, Gardbaum identifies a minimum slate of these core democratic procedure values, including robust political competition and contestation; pluralistic governance; differentiated institutional roles; accountability; political equality among citizens; and representation.
As Gardbaum notes, Democracy and Distrust is “self-consciously parochial” (P. 1) and focuses only on specific failures of American representative democracy—efforts to prevent political change through suppression (of voices or votes) and systematic disadvantage in the political process for disfavored minority groups. But relying on the expanded list of democratic procedural values and taking a comparative lens, Gardbuam identifies many other political process failures. In addition to threats to free and fair elections and to the lawmaking process or processes flagged by Ely, Comparative Political Process Theory (CPPT) directs attention to the “institutional composition of the constitutional system”; the “modes and methods of executive accountability and oversight in between elections”; and “the rules and procedures of the various branches of government.”
This expanded set of process failures is supported by a variety of concrete examples, and Gardbaum draws on his own and others’ work in detailing the dispiriting stories of democracies in crisis: challenges to independent institutions of accountability in South Africa (the National Prosecuting Agency) and to the independence of the judiciary in Hungary, Poland, and Turkey; the “weaponizing” of the legislature in South Africa to protect and insulate President Zuma from political accountability, and Boris Johnson’s decision to prorogue Parliament in the United Kingdom; and the undermining of the process of legislative deliberation by efforts to push through fast-tracked or last-minute bills in the Israeli Knesset (tax) and the U.S. Congress (tax), as well as the wide-ranging legislative gamesmanship in Poland, from agenda manipulation to shifting meeting times and locations.
These failures are not all narrowly procedural; some are “impermissible because of their intended or likely effects on the political marketplace” (P. 35), thus CPPT straddles the procedural/substantive divide. In so doing, its capaciousness has implications for remedies—and the nature of judicial review. Gardbaum is not proposing that CPPT be seen as the only justifiable rationale for judicial review, and he leaves open the questions of whether or why purely substantive judicial review might also be beneficial. Similarly, he does not present CPPT as a theory of judicial restraint; in fact, “it can call for robust interventions where most courts have feared to tread.” (P. 40.) As one example, he highlights South Africa, where robust Constitutional Court review of the procedures in the National Assembly was controversial. By framing these decisions in light of CPPT, they can be understood “less as judicial overreach violating the separation of powers than as judicial protection of it.” (P. 33.)
Indeed, the variation in types of process failure may call for different measures of judicial review, from pure procedural review to semi-procedural review, in which the enactment process of a legislative output “may be relevant in determining [its] substantive constitutionality.” (P. 28.) And in some contexts—such as when it is functioning to “make the process work the way it is supposed to” (P. 39), CPPT will necessarily function as a weak-form theory of review, “as its focus on remedying process failures of various kinds leaves open a broad range of outcomes that the political institutions may legitimately pursue.” (P. 35.) Again, the South African experience gives context: the full story of holding President Zuma to account included an active and independent media and the investigations of the Public Protector, the chief anti-corruption official.
In this article, Gardbaum adds his voice to the academic chorus calling attention to the steady dismantling of the structures and processes of constitutional democracy around the world. His efforts provide theoretical heft and normative justification to the work of constitutional courts that are trying to stem this tide. In this, as he acknowledges, his project dovetails with the work of law-of-democracy scholars, particularly Sam Issacharoff’s Fragile Democracies. That book, published in 2015, looked at the role of constitutional courts in emerging or weakened democracies in Eastern Europe, Africa, and East Asia. But as Gardbaum’s project highlights, we are all fragile democracies now.
Did you know that only two beverages, water and milk, were allowed during the recent impeachment trial at the Senate? Iselin Gambert would be unsurprised by the sight of senators gulping down glasses of milk while considering whether the President should be convicted of treason, bribery, or other high crimes and misdemeanors. Indeed, her fascinating article, Got Mylk?: The Disruptive Possibilities of Plant Milk, tells you everything you always wanted to know about the social and legal meaning of milk in the United States and the European Union, brilliantly dissecting the ongoing battle over the use of the word “milk.”
Plant milk has rapidly grown in popularity among consumers in recent years while cow’s milk sales have languished. Yet, in both jurisdictions, the word milk is narrowly defined as the mammary secretion of an animal. In principle, it cannot be used to label oat, rice, soy, and other plant-based drinks. As Gambert notes, “[d]espite the fact that plant milk has been called ‘milk’ for thousands of years by cultures across the globe, dairy milk advocates have been waging a war against plant milk for the last several decades, fighting legal, legislative, regulatory, linguistic, and cultural battles over not only the very word ‘milk’ but also over the cultural space it occupies.” In 2017, Wisconsin senator Tammy Baldwin introduced the Dairy Pride Act, which would update the U.S. Code’s section on “misbranded food” to prohibit plant-based products from using terms such as “milk,” “yogurt,” or “cheese” on their labels. The same year, the European Court of Justice ruled that plant-based products are prohibited from using the word “milk” in their labels or marketing.
While this transnational convergence may appear to be a futile linguistic fad, Gambert emphasizes that American and European law share a long history of supporting the dairy industry in a way that is connected to the “exploitation and oppression—of women, people of color, and nonhuman animals.” She points out that, in both regions, animal milk has long been used a tool for patriarchy to exploit and discipline the female bodies of cows and women. She emphasizes that milk is an intense site of racial oppression—the majority of the world’s population is unable to digest cow’s milk and yet it is ubiquitous, highly subsidized, and heralded as nature’s perfect food. Whites of northern European descent are the most likely to have the ability to digest milk, explaining, in part, why milk-drinking is connected to “a particular form of institutionalized white dominance.” Cows’ milk has become a symbol of our current political moment—both in the United States and in Europe, it is the drink of choice for the alt-right in virtue of its association with white supremacy.
Gambert offers an ingenious solution to the linguistic dispute haunting legal and social debates. Is the word “milk” with an “i” worth fighting for, she asks. A single letter could be the answer—plant milk producers and advocates should simply replace milk with “mylk” with a “y.” A “whimsical” and “creative” word like mylk would assuage dairy producers’ concern that some consumers are confused by the label “milk,” while advancing the disruptive potential of plant foods by avoiding milk’s sinister associations. While she notes that this “verbal activism” cannot by itself solve the broad underlying political and social issues, which would require questioning American and European food practices in relation to gender, race, and species inequalities, embracing “mylk” may present “an opportunity to showcase to consumers a more intentional and empowered choice.”
What about meat, you may ask. Over the last year or so, haven’t we witnessed a similar battle over what can be called meat? Much like milk, meat labeling has become a central site of social, political, and legal contestation, opposing the livestock industry to animal rights and plant food advocates. In response to the rise of plant-based meats (and the impending possibility that cultured meat may enter the mainstream soon), about half of the American states have either enacted, or are considering, legislation restricting the word “meat” to the flesh of animals, sometimes backed by criminal sanctions. Similarly, the European Union and some of its member states have moved to ban the use of the word meat to designate plant-based foods. Would a single letter make a difference here too? Should plant food advocates embrace “meyt” to dissociate themselves from the hyper-masculinized and speciesist tropes invoked by the champions of “real meat?” I look forward to reading what Gambert has to say about these developments in future work.
Editor’s note: For a previous review of this article see Ruthann Robson, Equality at Breakfast: Confronting the Patriarchal Whiteness of “Dairy Pride”, JOTWELL (June 11, 2019).
A general consensus has formed that the status quo approach to the current refugee crisis isn’t working, even if there is little agreement on an alternative. UC San Diego sociologist David Scott FitzGerald’s excellent new book, Refuge Beyond Reach: How Rich Democracies Repel Asylum Seekers, is the latest academic press book by a social scientist (following, for example, Alexander Betts and Paul Collier’s Refuge) to explain what’s wrong with the global institutional framework for refugees and to propose a better way.
Over eleven chapters, FitzGerald presents a trove of evidence showing how many Western states use law and policy to deter (or simply shut out) would-be asylum seekers. These legal policies creatively flout the spirit of international law, even as they walk a fine line between formal compliance and violation. FitzGerald argues that, whatever their legality under international or domestic law, these non-entrée policies, what he calls remote controls, violate principles of humanitarianism. He therefore argues that civil society—including NGOs, journalists, lawyers, academics, and other citizens—should mobilize to end them. Refuge Beyond Reach is an important contribution to the ongoing conversation about how the existing global international and domestic framework is addressing (and is perhaps responsible for) the current crisis.
Perhaps the book’s primary contribution is identifying and analyzing a typology of these migration remote controls. Refugee-destination states use remote controls to prevent migrants from legally claiming asylum by preventing them from reaching their ports, shores, or other borders. FitzGerald uses medieval-era architecture metaphors for these five methods of remote control: cages (techniques, such as camps or military force, which keep migrants in a certain place); domes (restrictive visa policies that keep migrants from flying into the country without prior permission); moats (maritime zones in which the military intercepts approaching vessels before they reach the shore, or even territorial waters); buffers (adjacent countries or territories that agree to hold migrants to prevent them from reaching the border); and barbicans (special legal zones on the perimeters of a country that limit asylum rights). Each of these devices is designed in a way that flouts the spirit of international migration law—the 1961 Refugee Convention and its 1967 Protocol—while arguably meeting most or all of its formal requirements.
One mark of a good analytical framework is how well it explains future events. FitzGerald’s framework has already proved useful for analyzing policy developments since the book’s publication. The remote control now making the biggest headlines in North America is the so-called “Migration Protection Protocols” (MPP) (also known as “Remain in Mexico”). Refuge Beyond Reach does not address that program, as the book was published shortly after the MPP was rolled out in early 2019. (FitzGerald does briefly cover a similar, ad hoc practice from the 1980s. He also examines how Canada implemented a “Remain in the U.S.” program in 1987; the threat to waiting asylum-seekers there was not violence from gangs, but deportation to their home countries by U.S. officials.) MPP requires asylum-seekers who appear at southern border ports-of-entry to wait for their hearing dates in Mexican border cities, rather than entering and waiting in the United States.
“Remain in” policies are not a perfect fit for any of FitzGerald’s five remote controls, but I would categorize the policies as a kind of “buffer-lite.” In other words, they don’t physically or legally prevent migrants from initially reaching the territory and filing a claim for asylum (as cages, moats, and domes can). Instead, they act as both a time-delay “gate” and a deterrent. As a time-delay gate, they actually reduce the population of asylum-seekers by temporarily preventing asylum seekers from residing in the country, thereby preventing them from either joining the general population or relieving the state of the obligation to house (incarcerate) them. But the stronger effect is probably deterrence; migrants who have to wait for longer periods in uncertain or dangerous conditions may give up while waiting, or just not try in the first place.
Though some of them have been struck down by courts, the MPP and many of FitzGerald’s five remote controls are often carried out in ways that are formally consistent with international or domestic migration law. (See the recent litigation over whether the MPP violates the U.S. Refugee Act.) Indeed, Fitzgerald argues that “questioning [the controls’] legality is necessary but not sufficient,” because “[t]he question should not just be whether a policy is legal, but also whether it is good.” And humanitarianism, he says, “provides a moral framework for measuring whether a policy is good.”
Despite this emphasis away from legality, political scientists, lawyers, and policy-makers may want to learn more about the tradeoffs that FitzGerald’s humanitarian-driven proposals necessarily raise. One of the key challenges of treaty drafting and negotiations is the tension between robust regulation and enticing a large number of participants (the so-called “broader vs. deeper” tradeoff). Of course, as with other treaty obligations, the Refugee Convention and Protocol require states’ consent to bind them. (Some argue that the principle of non-refoulement is now customary international law, binding most or all states, but that point is controversial.) There is some evidence that the Refugee Convention and Protocol have caused some key states to develop and implement domestic refugee/asylum systems which wouldn’t exist but for the Convention.
Had international refugee law banned some or all of the five sets of remote-control strategies, surely many fewer states would have ratified or acceded. In fact, in 2015 the prime minister of Denmark (one of the first states to ratify the Convention), called on states to renegotiate the Convention entirely unless European Union officials stemmed the flow of refugees resulting from the Schengen area’s open migration system. Likewise, if there were serious claims that the MPP program violated international refugee law, it’s easy to imagine President Trump pulling the United States out of the regime entirely (an act likely within his sole discretion). Dismantling the U.S. Refugee Act, the federal legislation implementing the Convention, would be politically and institutionally trickier, but weakening it around the margins would likelier be easier without its underlying international mandate.
For refugee advocates then, the optimal strategy might not be to push for the strictest possible rules, but for the most protective rules that can be attained without driving states away from the global refuge regime entirely. Like other international regimes, it’s unclear where exactly that tipping point lies. FitzGerald implicitly raises this issue but leaves a full discussion for others.
As with many important contributions to current policy debates, Refuge Beyond Reach raises several new questions that it cannot fully address. It doesn’t need to; the book is a detailed, meticulously researched, and generally compelling account of a central flaw in the global response to the current crisis. Refuge Beyond Reach will surely inspire new research and more conversations among legal scholars, empirical social scientists, and policy-makers about the problems FitzGerald exposes and the solutions he suggests.
Imagine a famous foreign jurist—say Richard Goldstone or Claire L’Heureux-Dubé—appointed to the U.S. Supreme Court, instead of (U.S. citizen) Samuel Alito, when popular criticism of citation of foreign law was at a fever pitch in the U.S. The outcry would have been swift and incendiary. Indeed, Ruth Bader Ginsburg and Sandra Day O’Connor received death threats for engaging with foreign law as they did. Yet for at least 21 jurisdictions (nearly all of them member states of the United Nations), foreign judges sit alongside citizen judges, helping to ensure the vibrancy of (sometimes recently established) democratic institutions, building confidence in the rule of law, and playing specific roles in ensuring judicial impartiality.
In Hybrid Constitutional Courts: Foreign Judges on National Constitutional Courts, Rosalind Dixon and Vicki Jackson analyze the historical and functional reasons that these arrangements have arisen. With a focus on the democratic legitimacy of the practice, Dixon and Jackson concentrate on three jurisdictions—Hong Kong, Fiji, and Bosnia-Herzegovina—as they analyze the advantages, disadvantages, and factors that lead to relative success or failure of hybrid court efforts. Dixon and Jackson are attentive to the relevance of their subject, not only for the potential expansion of hybridization, but also for the legitimacy of comparative constitutional engagement generally (the article builds on their previous work on interpretive outsiders), even when all judges are citizens of a country’s constitutional court.
Their contribution is one I like a lot, and it will certainly shape important debates among comparative constitutional law scholars worldwide. For readers of Jotwell’s International and Comparative Law section, it is Dixon’s and Jackson’s analysis of the particulars of judicial selection—the who, how, and why—that may be of most interest. They argue the following are likely to foster more, rather than less, advantageous hybridization: the necessity of participation of foreign judges for legitimacy (real or perceived); extensive judicial experience and reputation; and domestic, rather than foreign, processes leading to selection. With respect to the latter, the relative number and influence of foreign jurists also plays a role.
Their case studies are detailed and illuminating. In Hong Kong, for example, the appointment of foreign judges helped assure commercial confidence in the city through the handover to People’s Republic of China rule, and their continuing presence has “maintain[ed] Hong Kong as a leading center for commercial dispute resolution, with all attendant economic benefits that can bring.” (P. 334.) Foreign judges are selected through appointment by the Chief Executive of Hong Kong on the recommendation of an independent commission composed of local judges, lawyers, and community members. In Fiji, “there is a need for foreign judges to serve on the country’s highest courts,” given that nearly all local lawyers have close links to the country’s (divided) political elite. Judges there are appointed by the President, on the recommendation of the Judicial Services Commission, following consultation with the Minister and Sector Standing Committee of the House of Representatives because they oversee matters related to the administration of justice.
In the Constitutional Courts of Bosnia-Herzegovina, by contrast, the President of the European Court of Human Rights appoints three foreign judges “after consultation with the presidency of B-H,” (P. 338.) Correspondingly, there has been greater internal resistance to the role of foreign judges there, especially by Serbian elites.
Composition matters too. A panel of three Australian judges determined that a 2006 seizure of power in Fiji was unlawful; they—along with the entire judiciary—were dismissed. In Hong Kong, foreign judicial participation is typically limited to one member of a five-member bench. On the Constitutional Courts of Bosnia-Herzegovina, foreign judges comprise three of the nine total members of the court. “All other things being equal,” the authors note, “a mix of local and foreign judges is likely to face lower legitimacy concern than an all-foreign bench.” (P. 341.)
While the article is primarily aimed at structural factors (selection, composition, and foreign influence), Dixon and Jackson are clearly aware that personality and temperament matter. Even foreign judges may be more or less willing to engage the local bar, undertake study, or share aspects of common constitutional traditions. If foreign judges undertake their responsibilities “with wisdom and sensitivity to local facts and circumstances (including socio-political context), they may have a better chance to increase the effectiveness and perceived impartiality of judicial decisions, whereas if they are insensitive to this broader context, or conversely too consistently deferential to local judges’ factual and legal judgments, they may undermine the knowledge and legitimacy benefits of having foreign judges.” (P. 343.) These idiosyncratic traits and behaviors are the most difficult to measure, and they appear to be a promising starting point for Dixon and Jackson’s next study.
Hybrid Constitutional Courts is a valuable contribution, not only for the comparative constitutional law literature, where it is likely to be situated, but also for scholars of constitutional design and judicial behavior. The authors clearly have some of the latter research in mind, and I expect that Dixon and Jackson will use their framework to design more extensive interview-based research on attitudes and behaviors of foreign judges participating in these hybrid roles. I look forward to it.
In The Globalized Governance of Finance, David Zaring portrays an “emerging architecture” of financial regulation that lacks many of the traditional aspects of international law. There are no sovereigns or treaties or international courts. No heads of state or foreign ministers participate. Zaring’s key argument is that global financial regulation is nonetheless “a principled legal order founded on instruments of soft cooperation.” (P. 34.) Though full of institutions “ever-willing to claim that they are not lawmakers,” financial regulation is “hierarchical, procedurally regular, and politically supervised.” (Pp. 28, 100.) The regime is not precisely soft or hard law—it is “legalish.”
The book identifies “legalish” principles embedded in global financial regulation using specific examples of cooperation among global banking, securities, and insurance regulators. Key among these principles are reliance on regulatory networks and the use of techniques typical of administrative law. In Zaring’s account, global financial regulation works like both a network and “an administrative agency stretched across a global multilateral context.” (Pp. 6, 100.)
Both of these topics—administrative actors and legal networks—resist coherent description in a similar way. The institutions are many and heterogeneous, each with its own specific origin story and mechanics. The book meets this challenge by identifying ways in which the network is not entirely decentralized and horizontal, but rather is subject to some political coordination. The book also gracefully moves between the levels of specificity required to analyze such a system. It provides organizing principles, but it also digs into the details about major regulatory institutions in banking, insurance, and securities regulation, as well as identifying smaller financial networks that are often overlooked.
Zaring’s description of the Financial Stability Board (FSB) gives a sense of one of the book’s charms. The institution—a “vigorous regulatory middle manager”—must rely on “cajoling and peer review.” (Pp. 18-19.) To have a seat at the table at FSB plenary sessions, members must show up with a “gaudy cast of regulatory characters.” (P. 19.)
In a similar vein, Zaring captures something essential about the nature of “best practices” and whitepapers when he describes these as “offering regulators an attractive combination of casualness and detail.” (P. 27.) As these passages suggest, the descriptions throughout the book do not just point to the formal structures as evidence for the book’s basic thesis, but also convey a sense of the institutions’ flavor.
Regulators are the main players in Zaring’s account. The lawyers for the financial institutions occasionally make an appearance, but the big banks, insurance companies, and other private actors that are the subject of regulation and enforcement are not in the foreground. Perhaps a full administrative account of global financial regulation must ultimately contend with these players as well, but this may be a topic for other work.
The Globalized Governance of Finance is an expansive and, at times, colorful portrayal of the “legalish” realm of global financial regulation. It provides a coherent and modern account of the world that lawyers and institutions experience. It is well worth a read.
After an unprecedented social crisis, Chile is seeking constitutional change. This decision is quite extraordinary: though the Constitution contemplates amendment rules, Chileans have decided to create a new mechanism for approving constitutional change. The Chilean constitution was written during a military regime, and despite its many reforms, its legitimacy is sometimes questioned. Of course, its amendment rules are questioned as well. Nevertheless, this new procedure aims to respect the rule of law: Congress must first approve a reform of the amendment rules to allow constitutional change by means not previously established. After that, the process contemplates two referendums and an election. If this process fails to result in approval of the new Constitution, then the current one will remain in force.
This process raises many questions. For instance, if we have rules to change and amend our Constitution, why did we decide not to follow them? And if we agree to change the Constitution, what should the design of the new amendment rules be? What are the relevant principles, criteria, and institutions? In this scenario, Richard Albert’s book, Constitutional Amendments, provides valuable input.
Claiming that constitutional amendment is an unexplored field among constitutional scholars, Albert vindicates its importance. How we change the constitution is as important as its content. After reading Constitutional Amendments, readers recognize that the how and the what are not as separate as one might think: amendment rules are, indeed, part of the substance of a constitution.
As Albert explains, amendment rules may be seen from three different perspectives: formal, functional, and symbolic. Each has specific effects that reveal the importance of such rules. Formally, amendment rules can distinguish higher laws from ordinary legislation and make the former more difficult to change, with consequences for the stability of a country. Functionally, they can establish a process that serves a particular amendment purpose, bringing constitutional expectations in line with performance by checking the activity of courts or by promoting democracy. And symbolically, amendment rules can express certain values; by making some parts of the constitution harder to change, they unveil fundamental commitments of a constitution (and its country).
Albert also identifies a underexplored feature of amendment rules that I find particularly innovative: the “sociological legitimacy” that they provide constitutions. If the process whereby a constitution was amended is just, it is likely that the constitution will have credibility among the governed and that it will be ultimately accepted by them as authoritative and binding. This may partially answer my first question regarding Chile.
With remarkable breadth in compared experiences and deep knowledge of the details of the history of numerous constitutions, Albert illustrates some of the tensions that may arise when amending constitutions. The book is a continuous interrogation: every question opens another one. Throughout this exercise, Albert makes evident the importance of amendment rules. He starts asking “why amendment rules?” and gives reasons why countries give themselves rules for changing their constitutions even though they may never amend them. He continues by defining what an amendment is, and what it is not, by introducing the distinction between an amendment and a dismemberment.
Moving forward, Albert argues that empirical studies that rank constitutions based on their rigidity are insufficient because they fail to consider key elements, such as uncodified changes to formal amendment rules, popular veneration for the constitution, cultures of amendment, etc. In this way, Albert adds cultural and sociological elements to his constitutional analysis, a sometimes-forgotten dimension. The author also engages with unamendable rules and variations of unamendability, highlighting the strengths and weaknesses of different approaches. Near the end of the book, Albert digs deep into the constitutional design of several constitutions. Finally, he explores how constitutions display their amendments, along with the outcomes, implications, and problems resulting from the different methods of notating change. Albert concludes by offering guidelines for constitutional designers.
Throughout his book, Albert shows how different constitutional amendment rules have huge implications for the effectiveness of a constitution. One of the book’s main virtues is not in what Albert says, but in what he does not: it plants many questions in the reader’s mind and leaves their answers open. For instance, how should we determine or evaluate the various effects that the participation of institutions and other agents have in amendments processes? Or what role(s) should courts play? At a number of points, Albert mentions the active role that courts may have within a certain design. He does so when explaining the Conventional Theory (amendments must comply the constitution, if not, they are an illegitimate constitutional change) and its inspiration, the Theory of the Constituent Power (only the constituent power can make a constitution, not the constituted one). One of the implications of these theories is that someone has to determine whether an amendment complies with the constitution or not, and if it doesn’t, that authority can nullify the amendment. Typically, this would be a court. Albert shows how some courts, like the Supreme Court of India, have invoked the Basic Structure Doctrine in order to discard certain constitutional amendments. According to this doctrine, the amendment power is limited by what constitutes the nature of the constitution—its core commitments—even if the constitutional text itself does not limit it. When talking about unamendable rules and the different kinds of unamendability, the author illustrates how some courts have declared that specific rules are not susceptible to amendability, even though they do not have that character according to the constitutional text.
So, the role that judges sometimes play in the constitutional amendment processes is, in comparative experience, an important one. Is it exempt of risks? As Albert says, the courts’ power is susceptible to exploitation for political purposes. Does it have benefits? Maybe it is useful to distinguish whether a court is arbitrating procedural or substantive rules. In the first case, I believe, democracy is protected; in the second, democratic activity cannot be fully deployed, because it is anchored not only by what was once enshrined in the constitution, but also by a specific interpretation of that content. It sounds counterintuitive to say that the content of a constitution is allowed to be changed, but yet the change must be limited by that same content. The situation is made more complicated because constitutions are a system, meaning they must be coherent to be effective. But, is determining a constitution’s coherence a court’s duty? A different but relevant question is whether these processes (where courts have played an important role) are themselves sociologically legitimate. How are these doctrines of limitation and the courts that promulgate them perceived by the governed?
Albert engages only tangentially with the variety of agents that can be involved in a constitutional amendment process. It would have been interesting if he had included a chapter about the roles that the different branches of the state and that citizens play in those processes, their effects, and the tensions that can develop. Nonetheless, the author clearly achieved one if his key objectives: to inspire interest in constitutional amendment.
Constitutional Amendment is a book worth reading. It is complete and sophisticated, certainly a noteworthy contribution for scholars and constitutional designers. And, without a doubt, it is also a valuable asset for anyone interested in reflecting on the current process ongoing in Chile.
The challenges of democratic backsliding and institutional resilience have recently exploded onto the agenda of research scholarship across the social sciences, especially in world and economic history, comparative politics, and constitutional law. Tom Ginsburg and Aziz Z. Huq’s How to Save a Constitutional Democracy is one of the most lucid and authoritative accounts in this increasingly crowded yet scholastically sophisticated field.
As with many other such recent treatments, the catalyst for the book has been the election of President Trump in the United States, and many others like him in varying degrees and styles of strong leadership across the world. The challenge these leaders pose for established assumptions about the nature of political order are fundamental, the book argues, and not simply a transient choice of ordinary democratic competition. In varying degrees, these leaders and the movements they lead challenge the values of political liberty and cultural pluralism, the principle of government limited by laws of general application, and the norms of behaviour that flow from the distinction between political power and legal authority.
The book explains the foundational (or aspirational) unit of the post-World War II international order—or “Liberal Constitutional Democracy,” as Ginsburg and Huq call it—and the alternative conceptions of statehood that challenge it. The core of the book, and the most interesting discussion within it, is the account offered by Ginsburg and Huq about how Liberal Constitutional Democracies sometimes collapse, or more often, decay. The book’s great strength is not only that it offers explanatory theories on all these questions, but that it sets out a practical agenda for institutional reform and political mobilisation, if Liberal Constitutional Democracies are to survive the challenge posed by authoritarian populism animated by appeals to primordial identities. In this, it reflects the authors’ strengths as serious scholars of both theory and institutions, as well as active contributors to policymaking and constitution-building across the world.
There was a time not so long ago when the world could neatly, if somewhat simplistically, be divided into countries that were Liberal Constitutional Democracies, and those that were not. The former category contained the Western nation-states, which had completed the processes of constitutional and democratic modernity in the post-World War II era. They stood as tangible examples of societies that reaped the benefits of the European Enlightenment’s forms of peace, order, and good government, in unprecedented levels of material prosperity and political liberty for their people. In some cases, such as the countries of the European Union, they had even begun experimenting with advanced institutional forms of post-sovereign and post-modern constitutional organisation. Normative debates about constitutional order beyond the nation-state had become the cutting-edge issues in constitutional theory.
Meanwhile, in Africa, the Middle East, and parts of Asia and Latin America, Liberal Constitutional Democracy, as the signpost of a developed political modernity, remained an elusive aim. Here, human history’s more familiar norms of tyranny, conflict, hierarchy, domination, and poverty seemed to flourish. Given this distressing contrast between the West and the Rest, the challenge for all decent and right-minded people was how to replicate the West’s successes with Liberal Constitutional Democracy in these places and bring succour to the wretched of the earth.
These were the assumptions that governed both international relations and policy as well as much of mainstream social science scholarship since the end of the Cold War, especially in comparative constitutional studies and the practice of transformative constitution-making. The solidity of those assumptions, however, has been jarred suddenly—although not wholly unanticipatedly—by the rise of populist movements in the West, which challenge or reject outright the liberal democratic political settlement that lay at the heart of the successes of Western states and societies. The barbarians of ethnic nationalism and of power-over-authority populism are now at the gates of liberalism’s Western citadels, and in some cases, have overrun them. Ironically, therefore, this internal challenge within Western democracies has made for a narrowing of the comparative gap between North and South in understanding the nature of Liberal Constitutional Democracy. Ginsburg and Huq’s work is primarily concerned with explaining and countering this threat. They offer a sustained set of prescriptions in terms of both institutions and culture that have application in both the West and the rest of the world, provided we are prepared to make the core normative re-commitment to Liberal Constitutional Democracy on the basis of their critique of populist authoritarianism.
The book is less concerned, however, with another type of threat emanating from the other end of the political spectrum. Ever more particularist claims from “identity politics” are on what seems like a relentless ascendance in Western societies. This left-wing challenge destabilises liberal polities in no less a way than does the right-wing challenge of populism. The reification of subjective grievance as a dominant mode of political claim-making constricts the broad and tolerant political centre that is essential to Liberal Constitutional Democracy as a framework for the management of diversity, difference, and disagreement.
And it is not merely the immediate targets of these challenges from Left and Right—whether it is the “patriarchy” or the “cosmopolitan liberal elites”—that need to worry. These dramatic developments in Western democracies expose an age-old conceptual paradox of Enlightenment liberalism itself. Is constitutional democracy of the Western mould based on a procedural liberalism that provides an organising framework for peaceful coexistence, or is it a substantive liberalism that holds itself out as the sole and universal conception of the good life? The left-liberal claims that drive the identity politics of Western societies is a variant of the latter tradition. As such, this discourse has much less to offer Liberal Constitutional Democracy as a model of political organisation on a global scale, because it rejects the accommodation of plural cultural traditions that must underpin a global model of democracy. So far, it is mainly authors identified with the centre-right who have grappled with this challenge, but it really ought to be an issue for those concerned with a defence of Liberal Constitutional Democracy from the political centre as well.
But for the moment it can certainly be said that, alongside a number of other notable contributions in this first wave of scholarly responses to the rise of populism, Ginsburg and Huq have done a great job of showing us why we should be concerned with the threat of populism, why Liberal Constitutional Democracy is worth defending, and what we should do to protect and foster it. Everyone concerned with these issues should read their elegant book.
Democratic voters in America are currently witnessing a contest between three broad visions of the role of the federal government. One vision is “democratic socialist” in nature and argues for governments to be the exclusive provider of a range of “core goods”—goods central to a life of full human dignity. This is a common theme of democratic socialist proposals on healthcare, for example. Another vision is market-based: markets should continue to play a leading role and the role of government should be limited to supporting or at times subsidizing access to core goods by low-income earners. A third position is “democratic liberal” in character (or what Jospeh Stiglitz has called “progressive capitalist”). It argues that governments should guarantee universal access to core goods, but not necessarily through exclusive public provision. Instead, it suggests that governments should seek to achieve universal access to core goods in one of two ways: either through an appropriate mix of sticks and carrots for private providers (taxes and subsidies), or a mix of public and private provision.
Enter the idea of the “public option” outlined by Ganesh Sitaraman and Anne Alstott in The Public Option: they argue that the government should provide either a “competitive” or “baseline” public option for citizens wanting to access core goods such as healthcare, housing, education, or childcare. To this list, they also add services such as banking, retirement savings, credit reporting, public defense, and guaranteed employment.
We have written elsewhere about how and why we support a democratic liberal approach over both a more full-blown democratic socialist or free-market approach to the provision of core goods. In short, we think it provides the best mix of dignity, freedom, and equality for all citizens and is the most realistic way of achieving universal access to a decent social minimum—by harnessing the strengths of both the state and markets.
In key respects, Sitaraman and Alstott are also democratic liberal in their approach (they are certainly progressive capitalists): they emphasize the role of both government and private markets in providing access to core goods and services. As they note, they do not “have blind faith in private public administration” or “private firms.” (P. 126.) Instead, they suggest that we must ask “which is the best form of administration given a particular context, history, and the nature of the task at hand.” (P. 126.)
The Public Option offers creative and fresh thinking about how America could in fact realize a democratic liberal vision. For example, the authors propose a public option for retirement savings that involves automatic enrollment, portable benefits, and “simple, sound investment choices with low fees.” (P. 142.) This model involves broad baseline coverage for all Americans and tracks some of the most successful features of the current Australian retirement savings system (though with more emphasis on public funds management). They also suggest a model of childcare that involves ambitious efforts to expand access to high-quality care for American children, and thereby improve childhood outcomes and parental labor force participation: a model of “public infant care (for kids under three), full-day public preschool (integrated with public schools), and public before-and after-care (integrated with public schools).” (P. 194.) And they canvas a range of options for a public option in healthcare. (Pp. 218-22.)
They also provide a cogent defense of the advantages of having the government play a role in providing core goods—advantages such as “economies of scale,” the protection of the vulnerable, the limits of regulation and subsidies in encouraging appropriate private provision, and the benefits of “yardstick competition.” In the classic economic theory of yardstick competition, a regulated firm is reimbursed based on the costs of similar firms. The modern twist on this envisaged in The Public Option is that public provision of goods or services—healthcare is the quintessential example—disciplines private providers by revealing information to consumers about the true cost of provision. In fact, this idea has origins in a 1932 speech by Franklin Delano Roosevelt in Portland, Oregon making the case for public provision of electrical power.
They might also have added that the state has important advantages in ensuring the appropriate quality of provision for certain core goods, as the quality of provision is notoriously hard to contract over for some goods and services. Hence, private providers tend to do worse than the government in providing quality (or decency) in areas such as prisons, immigration detention, or certain welfare services. Indeed, some scholars view incentives for the provision of hard-to-contract-on issues like “quality” as the key to understanding what assets governments should own, and therefore have residual control rights over (Hart, Shleifer and Vishny, 1997).
This form of democratic liberal intervention could not come at a better time; Sitaraman and Alstott are both leading contributors to debates over the role of government in achieving economic justice in America. And America is currently witnessing a debate that is not just about the future direction of the Democratic Party but the direction of the country itself.
While highly sympathetic to the approach proposed by Sitaraman and Alstott in this context, we note one significant challenge to the realization of this vision—especially for a “competitive” public option. If governments create a public option, but then do not subsidize it in any way, the public option will often do little to advance the goal of truly universal access: think of the U.S. Postal Service (USPS) with no government subsidy. It is hard to see how it would ensure deliveries to remote and rural areas at an affordable cost. It could only do so through substantial cross subsidies from urban customers or direct subsidies from the taxpayer. Indeed, this is one reason the U.S. government gives USPS monopoly rights over ordinary mail and spends considerable resources supporting the USPS—as a form of competitive and baseline public option. Last year, USPS lost $3.9 billion on revenue of $70.6 billion.
But there are also dangers to a government adopting a too-generous approach to subsidizing a public option, which is intended to operate in a competitive market—and to preserve genuine competition and individual choice. Too large a government subsidy, in this setting, can effectively undermine what economists call “competitive neutrality.” It can mean that private businesses have an extremely hard time competing with government-owned firms—because they are not doing so on a level playing field.
This is arguably the greatest challenge in designing a public option for something like health-insurance—too small a subsidy, and it is hard to see how the policy will live up to the ideal of “guarantee[ing] access to health care to everyone at a controlled (and affordable) price.” (P. 218.) Healthcare costs are likely to continue to rise, with new medical breakthroughs. And making sure that everyone has access to those breakthroughs is likely to require either a quite significant government subsidy or cross subsidy within private insurance markets (something that is often hard to achieve).
But too great a subsidy and it is hard to see how a public option will “serve as a benchmark and competitor to private options without crowding them out” (P. 218), as former Council of Economic Adviser Chairman Greg Mankiw has noted.
Some current elected officials are not too troubled by this possibility. They would be quite happy, over time, to see a public option (for example, health-care insurance) lead to a model of exclusive public provision—providing that is the result of consumer choice, rather than government mandate. Indeed, this is something that Sitaraman and Alstott themselves seem to think desirable in certain contexts.
That picture may be a little too simplistic, given the problem of competitive neutrality: if the government puts private firms out of business, by undercutting them through large subsidies to a public competitor, they leave individual consumers with limited real choice. This may be justified as part of an effort to guarantee truly universal access to a basic human right (such as health care). But it is not a true competitive public option. It is effectively government providing a universal baseline service or option, and it needs to be understood as such.
The bigger problem, however, is one of cost or affordability: if the government makes the competitive public option too attractive—through subsidies—it is likely to end up having to foot the bill for subsidies for millions of Americans, including many high-income earners. And that is when a public option—initially affordable—can end up becoming extremely expensive for the government, and therefore ultimately the taxpayer. In this context, the most effective democratic liberal policy is one that seeks to provide public subsidies on a more limited or an income-targeted basis.
Sitaraman and Alstott are alive to these kinds of complexities when talking about the challenges facing governments in deciding how much to subsidize private firms or how to impose price-based regulations on private providers, in the provision of core goods. (Pp. 55-65). Indeed, their analysis of the challenges is well worth reading as a valuable contribution in its own right to the current economic debate.
But when it comes to the design of their own preferred model—of public provision as a baseline or competitive option—they largely gloss over these same complexities. A big part of the design challenge in framing a public option is the level and cost at which the government should provide a service, and these are not questions that the book aims to answer in any detail. In part, this is inevitable, given the book’s intended audience and impact. And we support that focus. But it is also a potential weakness in the book and its prescriptions for the Democratic party and the broader American debate. Sitaraman and Alstott are surely right that U.S. government should play a larger role in promoting universal access to a generous social minimum or various core goods. The big question, however, is how it should do so—and whether taxes, subsidies, or direct public provision provide the best instrument. And on that, The Public Option substantially advances the debate but does not conclude it.
Professor David Fontana’s Unbundling Populism is a valuable addition to a burgeoning body of comparative constitutional law scholarship on populism. Some scholars have provided helpful typologies of populism. Mark Tushnet, for instance, distinguishes between different forms of populism and identifies the constitutional implications of right- and left-wing populist policies. Others have adopted working definitions of populism and specified the ways in which populism (so defined) threatens key elements of liberal constitutionalism. Nicola Lacey, for example, claims that there is a general consensus on the conceptual elements of populism and identifies a variety of ways in which populists have threatened the rule of law, ranging from agenda-setting that threatens core rule of law institutions to the flouting of constitutional conventions. Still others have written about populism, while resisting the temptation to seek a workable definition. For instance, Kim Lane Scheppele turns away from trying “to define and delegitimate” populism and asks instead why so many liberal constitutionalists are “so obsessed with populism.” In the course of answering this question, she identifies threats that populists pose to liberal constitutionalism, often by using the rhetoric of liberalism and democracy.
In his remarkable article, Fontana pulls together several of the above threads in the comparative constitutional law literature on populism. He provides a working definition of populism, offers a novel typology, and warns that if we are imprecise in how we talk about populism, we may delegitimate concerns that are valid in a liberal democracy and we may legitimate leaders with authoritarian tendencies.
Drawing on a variety of sources, Fontana defines populism in terms of style and substance. As a style, populism “values political arguments that are clear, comprehensible and often emotional.” (P. 1488.) According to Fontana, the populist political figure rejects the increasingly technical language of political institutions and instead speaks in a way that signals her authenticity and her connection to ordinary citizens. (P. 1489.) In so doing, she distances herself from actors within political institutions who claim to hold “specialized expertise” that gives them “jurisdiction” over those institutions. (P. 1488.) Fontana argues that populism is not, however, merely a style, for it advances a policy agenda the goal of which is “to rectify injustices that empowered elites created for the rest of the people.” (P. 1489.) Fontana finds examples of this agenda in sources as diverse as Federalist Nos. 10 and 52, Thomas Piketty’s Capital in the Twenty-First Century, and legal scholarship which has found that “experts—in law and otherwise—can be even more biased in application of their skill than lay people.” (P. 1491.)
Fontana contrasts this version of populism, which he labels “unbundled populism” with another version, which links the anti-establishment orientation of unbundled populism to “conceptually distinct authoritarian and xenophobic world views.” (P. 1494.) Fontana labels this version “bundled populism.” The authoritarian and anti-pluralist dimensions of bundled populism emerge when its proponents define “the people” as a homogenous and virtuous collective who have been subject to the predations of a malign elite, and in whose name a single political faction can rule. According to Fontana, the bundled populist views those who fall outside his definition of the “morally legitimate” people as threats to be warded off. (P. 1495.) For right wing populists, the threat comes in the form of immigrants, and for left-wing European populists, it takes the guise of elites who have “coopted the social democratic state.” (P. 1495.)
The reader might reasonably ask what is at stake in distinguishing these two forms of populism. Fontana provides us with two sets of answers, one conceptual and one political. If we fail to tend to this distinction, Fontana tells us, we might use the term “populism” as a kind of shorthand for bundled populism. As a result, we would give the impression that the populist dimension of bundled populism, rather than its authoritarian or xenophobic dimensions, is the cause of specific instances of bundled populism or is their most significant aspect. (P. 1497.) Furthermore, argues Fontana, by availing ourselves of this shorthand, we may mistakenly presume a unique and particularly significant causal relationship between anti-establishment views and intolerance. Fontana notes, however, that it is polarization that “generates powerful ingroup and outgroup mechanisms” and that polarization can arise along many kinds of ideological cleavages. (P. 1497.) Fontana cites to empirical evidence showing that “[s]upermajorities of Americans of both parties would be disinclined to hire someone from the opposing political party.” (P. 1498.) It is not clear, then, that the populist is especially susceptible to defining opponents as “distant and inferior” (P. 1497), nor is it clear that the populist form of polarization is more problematic than others that have arisen in recent history. (P. 1498.)
Fontana argues that, in addition to these conceptual problems, there are political consequences that flow from failing to distinguish between bundled and unbundled forms of populism. In the current media landscape, if populism is generally understood to be synonymous with its bundled version, those who hold only the anti-establishment views of unbundled populism will be called to answer for the authoritarian, xenophobic, and attention-grabbing antics of bundled populism’s adherents. (P. 1499-1500.) Moreover, when no distinction is made between bundled and unbundled populism, the serious concerns of the former are summarily dismissed because they are associated with the deeply unserious views of the latter. As a result, empirically supported arguments about the failure of elites to attend to concerns of the broader public are rejected, Fontana claims, because they are conflated with spurious claims about the purity of the people. (P. 1501.) Finally, Fontana argues that if one fails to distinguish bundled from unbundled populism, one may confer unearned legitimacy on the former. By labelling as a populist tout court an authoritarian leader who claims to act for ordinary people against self-interested elites, one implicitly endorses that claim, whether or not it is borne out by his actions. (P. 1502-03.) And by describing such a leader as a “populist” rather than an “authoritarian,” or even an “authoritarian populist,” one risks downplaying the morally objectionable features of his bundled populism. (P. 1503.)
Populism is a complex and contested concept. Fontana’s article will not, of course, resolve all the controversies surrounding this concept but it does encourage us to think about what is at stake in defining populism. And perhaps most especially for those of us who work in the area of comparative constitutional law, Fontana’s insights will spur ongoing discussion, as the challenges to the assumptions and practices of liberal constitutionalism and its institutions spread around the globe.
Presented as the Foulsten Siefken Lecture at Washburn Law School, Professor Okediji’s article, A Tiered Approach to Traditional Knowledge, has implications beyond its focus on traditional knowledge. That’s why it is an article I like lots, as we say in these pages. Its publication in the Washburn Law Journal was accompanied by several thoughtful commentaries, which along with the principal article form a valuable symposium. I like the commentaries a lot too. But I will focus on the main course rather than the tempting side dishes.
Traditional knowledge consists of know-how passed on within local communities carrying forth understandings about healing, cooking, and other fruitful uses of the natural environment. Traditional knowledge is different from traditional cultural heritage, which consists of folklore and artifacts that convey communal interpretations about the world. A common issue raised by both traditional knowledge and traditional cultural heritage is whether their content should in some sense be owned either for the purposes of commercial exploitation or for preservation. Since the legal and political issues are different for the two categories, authors tend to narrow their attention to one or the other. Here, Professor Okediji focuses on traditional knowledge.
Arguments over protection of traditional knowledge are cast in property terms. Consequently, acceptance or rejection of legal protection often rests upon assessments of the desirability of property, especially intellectual property. Professor Okediji presents these well-known arguments in a systematic and original way. She also offers a fresh previously ignored solution based on an analogy to trade secret law. Carefully and thoughtfully, Professor Okediji borrows from fundamentals and critiques of intellectual property to proffer a solution to the problem of how to protect traditional knowledge.
The Intergovernmental Council (IGC) of the World Intellectual Property Organization (WIPO) has been debating protection for traditional knowledge for nearly a decade. The discussions among the member states rehearse many of the well-worn debates played out in decades of scholarship. Best, some advocates against intellectual property maintain, that traditional knowledge remain in the public domain. Intellectual property is not suitable for traditional knowledge because the former privileges individual, rather than communal, creation for the benefit of progress and the modern as opposed to the needs of preservation and tradition. Furthermore, intellectual property laws have served to exploit traditional knowledge, turning know-how gleaned from nature into industrial commodities reassembled in factories. Therefore, to treat traditional knowledge as intellectual property would insult the efforts of activists who have spoken out against pharmaceutical companies that have pursued patents on turmeric, on neem, on the Gumbi Gumbi plant of Australia, and on varieties of Hawaiian taro.
Other members of the IGC, often representing the interest of developing countries, urge protection for traditional knowledge, even if not with the full regalia of intellectual property. Communities which foster and sustain traditional knowledge should be able to benefit and govern its commercial exploitation. Such communities should also make ultimate decisions of whether the knowledge should be exploited at all. In order to protect these community interests, some type of legal rights must be attributed to traditional knowledge. Among these advocates for property rights, the debate is over the details. Who will be the owner? What will be the score and duration of the rights? Proponents move beyond conceiving of property rights as an all or nothing. Instead, they turn the debate into a quest for a balance middle ground.
In many ways, however, the Traditional Knowledge agenda, even as it plays out in WIPO, is consistent with that of the World Trade Organization (WTO) and flows from the philosophy of the Agreement on Trade-Related aspects of International Property Rights (TRIPS). The goal of the TRIPS Agreement is to require member states to reform their intellectual property regimes to meet substantive minimal standards set forth in the treaty. Requirements on subject matter, scope and duration, and limitations and exceptions serve to harmonize intellectual property law and assure predictability as member states trade with and invest in other states. Recognizing intellectual property protection in Traditional Knowledge is a logical extension of these principles. As the World Bank stated in the title to its study on Traditional Knowledge, intellectual property can serve to unlock the economic value of Poor People’s Knowledge. Presumably, this economic value is realized through international trade and the economic transactions across nations envisioned within the WTO and TRIPS. When understood this way, the Traditional Knowledge agenda is an extension of, not a reaction to, our new world trade order.
The contradiction, however, is that Traditional Knowledge is often highly local and specialized. Intellectual property covers a range of divergent subject matters, including software, pharmaceuticals, processes for producing chemicals, video games, films and television programs, and educational materials, and intellectual property laws are written in broad enough terms, such as creation and invention, to encompass a wide range of activities and industries. Nevertheless, Traditional Knowledge does not find a comfortable fit within the broad category of intellectual property. Traditional know-how is often more mental than technological, engaging with culturally defined ways of thinking, rather than complex machines or technologies. While the products of intellectual property are designed to promote change, the fruits of traditional know-how are meant to ensure a stable set of knowledge rather than to invite innovation and change. However, subjects of Traditional Knowledge, such as the benefits of plants for medicinal or nutritional purposes, are often innovative for those in the developed world who may not be familiar with the exotic fauna or their uses. Fitting Traditional Knowledge within intellectual property requires a balance between the values of stability and devotion to innovation (sometimes for its own sake).
Not only is the idea of Traditional Knowledge somewhat disconnected from intellectual property, it may also be inherently incoherent. First of all, Traditional Knowledge subsumes the knowledge of indigenous groups as well as groups that have a more recent history. This problem in definition raises issues [with identifying?] the relevant beneficiaries. Furthermore, Traditional Knowledge covers a wide range of fields from medicine to music. In its deliberations, WIPO has separated Traditional Knowledge from Traditional Cultural Expressions (TCE), with the latter being the subject of a separate agreement. But even with this bifurcation, Traditional Knowledge encompasses specialized knowledge that is often geographically local and culturally specific. This knowledge as a subject of global trade is very different from the freely mobile capital and technology of intellectual property law in the contemporary trade system.
These notable differences explain the need for a separate agreement on Traditional Knowledge and the set of large scale and specific issues that are the subject of negotiation. They help to identify the fault lines in the negotiations and the sources of continuing debate and tensions.
Talks continue within the IGC, and in my opinion they appear to be stalled. Perhaps Professor Okediji’s proposal can promote progress on a new international treaty. Her proposal would divide traditional knowledge into four categories with legal protection tailored to the four tiers. Sacred traditional knowledge is fully protected from commercial exploitation. Secret traditional knowledge, know-how that has commercial value, would be treated under principles of trade secret law. Closely held traditional knowledge is created and maintained through the collective efforts of the community but is used in the open. Finally, widely used traditional knowledge is knowledge that has disseminated beyond the group. The first three types of traditional knowledge would be legally protected through a system of proprietary rights that would include the right to compensation and right of attribution. Widely used traditional knowledge, however, would be subject to the right of attribution, or perhaps relegated to the public domain. Professor Okediji advocates for this tiered approach as both politically acceptable and a balance of the community and commercial interests arising from traditional knowledge.
This tiered proposal should provide guidance for the IGC to move towards a conclusion. Reformulating traditional knowledge based on degrees of sacredness, secrecy, and openness restructures the economic rights of traditional knowledge communities. But much of the debate is a reflection of uncertain political rights both within the communities and within the nation-state. The difficult question is how legal rights can address these political issues through a multi-lateral trade agreement. Treaties protecting human rights and cultural rights should play some role in defining rights in traditional knowledge. The problem is that framing traditional knowledge within intellectual property frameworks ignores political rights. Perhaps the best one can do is for the IGC to leave the matter of political rights to national legislatures and courts. Nonetheless, proposals like tiered rights need to keep in mind (or account for) political, cultural, and economic implications.
Engaging, provocative, and thoughtful, Professor Okediji’s article in one that many will like lots, and its ideas should be taken seriously in understanding the traditional knowledge debate and the possibilities of intellectual property law.