giovedì 8 settembre 2011

Varol on "Democratic Coup d'État"


The Democratic Coup d’État


Ozan O. Varol


Chicago-Kent College of Law



Harvard International Law Journal, 2012

Abstract:     
This Article identifies and examines the typical characteristics and constitutional consequences of a largely neglected phenomenon that I call the “democratic coup d’état.” To date, the academic legal literature has analyzed all military coups d’état under a single framework. That conventional framework considers all military coups to be entirely anti-democratic and assumes that all coups are perpetrated by power-hungry military officers seeking to depose an existing regime to rule the nation indefinitely. Under the prevailing view, all military coups therefore constitute an affront to stability, legitimacy, and democracy. Federal law in the United States reflects the same disdain for military coups by prohibiting any financial assistance “to the government of any country whose duly elected head of government is deposed by military coup or decree.”

This Article challenges that conventional view and its underlying assumptions. I argue that although all military coups have anti-democratic features, not all coups are equally anti-democratic. Rather, some military coups are distinctly more democratic than others because they respond to a popular opposition against an authoritarian or totalitarian regime and overthrow that regime for the limited purpose of transitioning the state to a democracy and facilitating the fair and free elections of civilian leaders. Drawing on fieldwork that I conducted in Egypt and Turkey in 2011, this Article sets forth a theory for a democratic coup d’état and examines its constitutional consequences using three comparative case studies: (1) the 1960 military coup in Turkey; (2) the 1974 military coup in Portugal; and (3) the 2011 military coup in Egypt.

Employing a principal-agent framework, I argue that when the military assumes power during a democratic coup, it acts as a self-interested agent and engages in the entrenchment of its policy preferences in the democratic constitution that results from the transition process. Constitutional entrenchment may occur in at least three ways: procedural, substantive, and institutional. First, the military may setup the democratic transition process so that the resulting democratic constitution favors the military. Second, the military may reserve substantive constitutional powers for itself in the democratic constitution. Third, the military may establish counter-majoritarian institutions in the democratic constitution that continue to enforce the military’s policy preferences even after the military relinquishes power to democratically elected leaders. 
 

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