Public Law & Legal Theory
Liberal democracy is a feature of national political order that can be promoted, defended, or undermined by international legal institutions. It is not a feature of international legal order itself, nor can it be, given the inherent pluralism about ways of organizing government that is constitutive of the international legal system. But neither is it the case that any particular liberal democracy is an island; liberalism is itself a transnational ideology, and both the expansion and recession of democracy around the world have been the result of interdependent decisions made by states and other transnational actors.
Of particular importance has been the role of hegemons in the system, promoting particular kinds of governance, notably the United States in the post-World War II period. The liberal international order whose death has become a matter of conventional wisdom was largely a product of US empire. For this reason, the single biggest factor affecting the future of liberal democracy going forward will be the role of hegemons and large powers. For the near term, those are the United States, China, Russia and the EU, with India obviously a relevant player as well. As these powers interact, they will create conditions that will advance or retard liberal democracy.
We already see some trends under way that seem likely to continue, and they are not pretty. Liberal democracies have had their confidence challenged in recent years, and bureaucrats in Brussels and Geneva are favored targets. Liberal democracies are perceived to have delegated too much power upward, rendering them unable to deliver policies that people want. This has led some to turn away from the liberal brand. Certainly, the United States under President Trump gave up its role as chief promoter of democracy, ceding that role to the European Union and the United Nations. Whether Biden is able to reverse that course, or is instead, as Philip Cunliffe described him, a kind of “Brezhnev-like figure” for the liberal order, remains to be seen.1 But authoritarian regimes have become skillful mimics of democratic forms at the national level, contributing to what some have called a democratic recession.
This chapter asks the question: what will the international law of democratic governance look like in 2050? The question reflects the fact that notwithstanding pluralism, there is much normative architecture supporting liberal democratic norms on the international plane. This architecture is not matched by equally expansive enforcement, but weak mechanisms do exist. This chapter speculates on alternative scenarios and what they might mean for the persistence of liberal democracy as a going concern, through the lens of international law.
Tom Ginsburg, "The Future of Liberal Democracy in the International Legal Order", Public Law and Legal Theory Working Paper Series, No. 778 (2021).