constitutionalism

Afternoon Tea: “Albert Venn Dicey and the Constitutional Theory of Empire”

Brandon Christensen History, Law, Links , , , , , ,

In the post-1945 world, constitutionalism has transcended the nation-state, with an array of transnational arrangements now manifesting constitutional characteristics — so says a growing number of scholars. This paper reveals an earlier but largely forgotten discourse of transnational constitutionalism: the constitutional theory of the British Empire in the late-nineteenth and early twentieth centuries. Focusing on the work of Albert Venn Dicey, the paper shows that, when the Empire was at the height of its power and prestige, British constitutional scholars came to see the Empire as a constitutional order and project. For Dicey, a committed constitutionalist and imperialist, the central dynamic of the imperial constitutional order was balancing British constitutional principles with imperial unity. This paper focuses in particular on parliamentary sovereignty, a constitutional principle that for Dicey was both necessary for and dangerous to the Empire’s integrity. An exercise in intellectual history, the paper rethinks Dicey’s work and the constitutional tradition in which Dicey has played such an integral part, seeking to bring empire back into the picture.

This is from Dylan Lino, a legal theorist at the University of Western Australia’s Law School. Here is the link.

Afternoon Tea: “English Liberties Outside England: Floors, Doors, Windows, and Ceilings in the Legal Architecture of Empire”

Brandon Christensen History , , , , ,

We tend to think of global migration and the problem of which legal rights people enjoy as they cross borders as modern phenomena. They are not. The question of emigrant rights was one of the foundational issues in what can be called the constitution of the English empire at the beginning of transatlantic colonization in the seventeenth century. This essay analyzes one strand of this constitutionalism, a strand captured by the resonant term, ‘the liberties and privileges of Englishmen’. Almost every colonial grant – whether corporate charter, royal charter, or proprietary grant – for roughly two dozen imagined, projected, failed, and realized overseas ventures contained a clause stating that the emigrants would enjoy the liberties, privileges and immunities of English subjects. The clause was not invented for transatlantic colonization. Instead, it had medieval roots. Accordingly, royal drafters, colonial grantees, and settlers penned and read these guarantees against the background of traditional interpretations about what they meant.

Soon, however, the language of English liberties and privileges escaped the founding documents, and contests over these keywords permeated legal debates on the meaning and effects of colonization. Just as the formula of English liberties and privileges became a cornerstone of England’s constitutional monarchy, it also became a foundation of the imperial constitution. As English people brought the formula west, they gave it new meanings, and then they returned with it to England and created entirely new problems.

This is from Daniel J. Hulsebosch, a historian at NYU’s Law School. Here is a link.

Economic Liberalism and (Re)Building Europe after WWII.

Barry Stocker Current Events, Economics, Liberty, Politics , , , , , , , , , , , ,

It is important to understand that economic recovery and growth in Europe after World War II is not as tied to Keynesianism, unfunded welfarism, and corporatism as is sometimes assumed.

The Glorious Thirty Years of European recovery from world war and subsequent growth were not due to ‘Keynesianism’ etc. The Thirty Years ended because the influence of liberal policies had weakened and the costs of other policies had accumulated to create an obviously dysfunctional system. Left-wingers (and communitarian-corporatist conservatives) who think ‘market fundamentalists’ overthrew a well functioning social and economic settlement which was behind all the economic growth and associated institution building (post-war national recovery and European Union construction) are in error. It is a major error to ignore the influence of Austrian School liberals (see the discussion by a leading current practitioner of Austrian economics, Peter Boettke) and the related Ordoliberalismus of the Freiburg School.

My remarks on what the major terms and schools in this paragraph refer to have become uncontrollably long, so they are relegated to the bottom of the post. I hope readers will have the patience to reach them.

The key points are that the German post-war Economic Miracle came from Ordo-liberal policies, while economic growth in France after Charles de Gaulle came to power for the second time in 1958 comes from the policies of Jacques Rueff, a civil servant, judge, and economist who participated in the 1938 Walter Lippmann Colloquium in Paris, a decisive event in the revival of liberal economic thinking attended by Hayek and many other notable liberal thinkers.

Such ideas have had a lot more influence in France than lazy propagators of clichés about statist France and liberal America understand. Of course, if we look at the French and American economies we can see notable ways in which the US economy is more liberal, but that should not obscure the reality that France has had good economic times and that these have come about because liberal economic policies were applied, even where, as under de Gaulle, the political narrative of the government was not liberal. The France of 1958 and after was able to stabilise institutionally after a real danger of the collapse of constitutional democracy and have a good economic period because of neoliberal economic ideas.

Some on the left think the relative revival of market liberalism in the 1970s can be rooted in the Chilean Coup of September 1973, after which economic policy was to some degree influenced by Chilean economists with doctorates from the University of Chicago. This revival of market liberalism is known as neoliberalism, a potentially useful term which came out of the Lippmann Colloquium (see below) that has unfortunately collapsed into an empty term of abuse for any kind of market thinking in government policy, wherein even the most modest accommodation of economic rationality is labelled ‘neoliberal’ and therefore extreme, authoritarian, and based on the narrow greed of the rich. It is sometimes accompanied by attempts to read enlightenment liberals as somehow ‘really’ left-liberal, social democratic, or even socialist.

The reality is that neoliberal ideas were first obviously influential on Continue reading →

Liberalism, Democracy, and Polarization

Edwin van de Haar Current Events, Liberty, Politics , , , , , , , , ,

Is polarization a threat to democracy and what is the liberal position on this?

As I pointed out in Degrees of Freedom, most liberals have a preference for democracy. Modern-day democracy – with universal suffrage, a representative parliament, and elected officials – has been developed over the course of the twentieth century. The idea has its roots in antiquity, the Italian city states of the Renaissance, and several forms for shared political decision-making in Scandinavia, Switzerland, the Netherlands, and England. Democracy is not a liberal “invention,” but the term ‘liberal democracy’ has taken firm root. This is true because modern democracy is based on liberal ideas, such as the principle of “one man, one vote,” protection of the classical rights of man, peaceful change of political leadership, and other rules that characterize the constitutional state.

Remarkably, the majority of liberals embraced the idea of democracy only late in the nineteenth century. They also saw dangers of majority decision making to individual liberty, as Alexis de Tocqueville famously pointed out in Democracy in America. Still, to liberals democracy is better than alternatives, such as autocracy or absolute monarchy. This is not unlike Sir Winston Churchill’s quip “it has been said that democracy is the worst form of government, except all the others that have been tried.” Yet there is a bit more to it for liberals. It is has proven to be a method that provides a decent, if imperfect, guarantee for the protection of individual freedom and the peaceful change of government.

Of course there is ample room for discussion inside and beyond academia about numerous different issues, such as the proper rules of democracy, different forms of democracy, the role of constitutions in democracy, whether referenda are a threat or a useful addition to representative democratic government, the roles of parties, party systems, and political leaders, et cetera. These are not the topic here.

In the context of the election of President Trump, but also before that, both inside and outside the US, there is a wide debate on the alleged polarization in society. By this is meant the hardening of standpoints of (often) two large opposing groups in society, who do not want to cooperate to solve the issues of the day, but instead do everything they can to oppose the other side. Consensus seeking is a swear word for those polarized groups, and a sign of weakness.

There appears less consensus on a number of issues now than in the past. Yet this is a questionable assumption. In the US it has been going on for a long time now, certainly in the ethical and immaterial area, think about abortion, the role of the church in society, or freedom of speech of radical groups. Yet most (Western) societies have been polarized in the past along other lines, like the socialist-liberal divide, the liberalization of societies in the 1960s and 1970s, or more recent debates about Islam and integration. Current commentators claim something radically different is going on today. But I doubt it, it seems just a lack of historical awareness on their side. I can’t wait for some decent academic research into this, including historical comparisons.

As a side note: a different but far more problematic example of polarization is gerrymandering (changing the borders of legislative districts to favour a certain party). This has been going on for decades and can be seen as using legal procedures to rob people not of their actual voting rights, but of their meaningful voting rights. Curiously, this does not figure prominently in the current debates…

The (classical) liberal position on polarization is simple. Fighting for, or opposing a certain viewpoint, is just a matter of individual right to free speech. This also includes using law and legislation, existing procedures, et cetera. The most important thing is that in the act of polarizing there cannot be a threat to another person’s individual liberty, including the classical rights to life, free speech, and free association, among others. Of course, not all is black and white, but on the whole, if these rules are respected I fail to see how polarization is threat to democracy, or why polarization cannot be aligned with liberalism.

Nightcap

Brandon Christensen Links , , ,
  1. Would the British Raj simply be replaced by a Hindu Raj? Brent Otto, JHIBlog
  2. Signal, noise, and statelessness in India Ameya Naik, Pragati
  3. Our insular British culture Chris Dillow, Stumbling & Mumbling
  4. Toward a new “Ostpolitik”? Ulrich Speck, Berlin Policy Journal

Nightcap

Brandon Christensen Links , , ,
  1. The fantastic truth about China Alec Ash, ChinaFile
  2. Civilization in the wilderness (Argentina) JN Nielsen, The View from Oregon
  3. Giving psychiatry another look Pierre Joseph, Aeon
  4. Immigration and the Commerce Clause Ilya Somin, Cato Unbound

INDIA: A case study in the demise of representative democracy

Shree Agnihotri History, Law, Liberty , , , , , , , , ,

India of 1947 had battled decades of colonialism to embrace self-rule. Whatever divisions seeped through party ranks, coalesced – and how beautifully – to fight for the right the people to a democracy. Having a common enemy helped. Compounded by the ability of the political leaders of that time to weave magic through words, connecting the plights of the millions to the queen-ship of one propelled movements across the breadth of the Indian subcontinent. While much has been said of the academic prowess as well as the oratory skills of the Founders, it was their ability to connect across barriers of identity that ultimately pushed the wheel. How dearly they protected their freedom of speech, expression and press is perhaps telling of the importance they assigned to being connected with those they had chosen to represent. How is it then that a deeply flawed election system and disjointed lines of public communication yielded one of the biggest civil disobedience movements the world had ever seen?

In terms of representation and reach, India 2018 is better abled than India 1947. And yet, it fell upon the unelected shoulders of four men and one woman to correct a deeply violent, colonial and bigoted law. The right to sexual identity was granted by five cis heterosexual individuals; the ones in need of representation reduced to being mere petitioners. India celebrated breaking off one more shackle, the Judiciary reveled in being the harbinger of liberal values to the Indian legal system yet one more time and the Parliament, as always, stayed mum. It is not that either of the institutions have embraced staunch anti/pro liberal positions. The Indian judiciary has its share of misogynists much like the Parliament. Misogyny is not illegal. But what is illegal is the Parliament’s distance from her electorate. Even if one were to contend that a majority of India does not support homosexuality, the increasing momentum of the movement should have propelled an informed debate within and without the Parliament. Instead, the government chose to not object to the petitions filed in favor of decriminalizing homosexuality as if that is the extent of the responsibility they owe to the LGBTQ community of the country. The distance between a judicial decriminalization of homosexuality and one done through a legislative device is the distance between a populist democracy and a representative one. The counter-majoritarian difficulty seems almost trivial when democratic institutions lose their representative character.

The biggest reason behind the rising legitimacy of an essentially non-democratic institution as the Judiciary is not a power grab by the Supreme Court judges. Howsoever activist they might get, the requirement of giving a reasoned decision tempers their emotions. The Indian Parliament, on the other hand, has come to rely on this increasing politicization of the judiciary to avoid political battles that might require concessions from their mostly unreasoned manifestos. The result is a lack of deliberation that is disturbingly dismal for a democracy as huge as India. The requirements of representation have come to be restricted to a periodical holding of elections. Members of Parliament are neither Burkean agents nor Pateman’s representatives. They are a political class unto themselves working towards a steady demise of the largest democracy in the world.

Nightcap

Brandon Christensen Links , , ,
  1. Things I hate about the US constitution Ilya Somin, Volokh Conspiracy
  2. At the Khmer Rogue tribunal MG Zimeta, London Review of Books
  3. Reductionism and anti-reductionism about painting Irfan Khawaja, Policy of Truth
  4. A foreign policy for the Left Samuel Moyn, Modern Age

10 horrific ways to die (RCH)

Brandon Christensen History, Links , , ,

Yes, that’s the subject of my weekend column over at RealClearHistory. An excerpt:

4. Cutting off limbs/flaying. The English version of being hanged, drawn, and quartered involved removing genitals, but did any other society in history stoop so low? Um, yes. Not only have penises and/or testicles been removed and vaginas flayed, but they have sometimes been displayed as trophies, eaten, or converted into jewelry. Genitals aren’t the only limbs to have been removed over the years. Fingers and toes, tongues, breasts, eyes, ears, lips, nipples, noses, kneecaps, fingernails, eyelids, skin, and bones have all been forcibly removed over years by governments exacting punishment. Aside from the removal of genitals, flaying is probably the worst of the bunch. That’s when you beat somebody so hard that their skin comes off.

I had a lot of fun writing this, and I suspect my ever-so-patient editor had a lot of fun reading (and editing) it. I hope you enjoy it too! Here’s the rest of it.

Courts as Modern Civic Churches?

Shree Agnihotri Current Events, Law, Religion , , , , , , ,

India is in the middle of an anachronistic power tussle. Watching The Tudors right when the Indian Supreme Court is hearing submissions in the Sabrimala case placed before me an interesting hypothesis – the King v Church tug of war is replicating itself, albeit democratically, in the controversy surrounding the Essential Practices Test.

First introduced in the Shirur Mutt case (1954 AIR 282), the doctrine provides for a test that would make state interference justified under a Constitution that gives to her citizens (Article 25), the freedom to practice and profess their religion, and to religious denominations (Article 26), the right to manage affairs and administer properties, both being subject to restrictions on public order, morality, and health. Essentially, the test gives the Court the power to determine what constitutes “essential to the practice of the religion” and holds that everything non-essential is subject to legislative action by the State.

A number of scholars (Gautam Bhatia, Shreya Atrey) have commented on the un/desirability of the consequences of such a test. The clearest of them all comes from Jacobsohn who characterizes the test as an attempt to internally reform the religion by allowing the judges to “re-characterize the religion in a more progressive light”.

What has given these objections much weight is the support Justice Chandrachud has lent to the skepticism of judicial discretion bestowed by the doctrine. He questions the ecclesiastical function of the court and proposes to use constitutional morality as the one stop test for determining the constitutionality of a religious practice, instead of going the long way of finding the non-essential elements that may be subjected to progressive restraints. This adherence to the constitutional word is consistent with the treatment of the constitution as the new-age charter of a civic religion, a notion oft repeated and celebrated in India.

King Henry VIII’s ostensible zeal for reform came out of his hatred for papal supremacy. Divine rights of the Kings placed the King directly under God, and God alone. He would then become the supreme mortal in terms of matters relating to governance and spirituality. The Indian courts do not wish to claim any such supremacy over spiritual matters (yet). What they seek to do is social reform – a venerable objective behind the framing of the Indian constitution. In that, they seek to be not just interpreters and guardians of the constitution, but active participants of change in realizing the aims of the constitution.

But one must question this insistence that in religion, like with the legislation, there is an umbra and a penumbra and that the latter is so hierarchy placed that it may be interfered upon, whereas the umbra is so essential that it may not be touched. What is religion but not faith? And what is faith but not a collection of beliefs organically coalesced to create charters that may look different for each generation? Is it not possible that a religion undergo change so as to value a tenet A over B within a span of decades? Is it also not possible that A and B exist simultaneously without harming the essentiality of each other, howsoever inconsistent they might seem to an educated rational mind? Since when has religion been the epitome of moral consistency?

Much can be said on the justifiability of this aspiration. Much more can be said of the legitimacy of the court’s position on such matters. Democratically speaking, ridding a society of its ills is more likely to give positive results if it comes from a joined political action rather than from a bench of judges who, in all their wisdom, are not privy to a large section of the society. Of course, the Indian supreme court has “grounded itself” (a phrased used by Dr. Rajeev Dhavan) and has acquired the kind of legitimacy that demands respectful obedience from its supporters. And this has been primarily because of the non-traditional use of judicial description for activism against a falling parliament often mired in political games to care much about the legal and policy lacunae deserving attention.

Sabrimala is an especially thorny issue, not just because the judges must conclusively decide the path the judiciary wishes to take with respect to social reform but also because they can either be the ecclesiastical court and inform the citizens of the immorality (grounded in the constitution, no doubt but then looking at the vastness of the Indian constitution, it can probably accommodate all moral philosophers barring Peter Singer) of their actions or they can let arguably unethical practices live, giving individual liberty the space that separation of church and state demands.

Nightcap

Brandon Christensen Links , , ,
  1. How sanctions feed authoritarianism Peter Beinart, the Atlantic
  2. Four ways of looking at a constitution Stephen Cox, Liberty Unbound
  3. Mining minerals in outer space: Luxembourg leads the way Justin Calderon, BBC
  4. Europe’s dependence on the US was all part of the plan Claire Berlinski, Politico

Ottomanism, Nationalism, Republicanism IV

Barry Stocker History, Politics , , , , , , ,

The previous post in this series covered the early stages of the formation of the Republic of Turkey out of the debris of the Ottoman state on the basis of ethnic nationalism combined with republicanism. Ottoman reformers were influenced by the western model. The new republicanism expressed itself in the forms of constitutionalism and representative democracy on a strictly western model, with an elected national assembly, a prime minister responsible to the assembly, and a president elected by that assembly. This post continues with an account of the early Republic which is mainly descriptive and with the aim of more analytic and evaluative comments in later posts in this series.

The nature of the fledgling state was very French influenced, in that it was a very unitary state with a very assimilationist attitude towards non-majority cultures and languages, along with a project for creating citizens of an enlightened republic. The comment of the 19th century Piedmontese-Italian politician Massimo d’Azeglio, ‘we have made Italy, now we must make Italians’ applies in a more radical way to Atatürk’s Turkey, who was someone of much more radical republican inclination than d’Azegio. Roughly speaking the work of French republicanism and reformism from 1789 to the 1920s was squeezed into Atatürk’s period of leadership, from 1919 until his death in 1938.  For this reason, the Kemalist program is sometimes referred to as Jacobin in Turkey.

Sharia law was abolished and previous adaptations from western law were turned into the complete incorporation of the Italian criminal code and the Swiss civil code as Turkish law codes. The first republican constitution made reference to Islam as the language of the state, but from the beginning it was the intention of Atatürk (who in Enlightenment style was a deist) and his associates to weaken the role of religion in public life, as in France. The laicist ambition became more explicit over time and mosque was separated from state. The Ottoman Empire, particularly in its later centuries, was regarded negatively as non-Turkish and decadent. State education reflected this along with positive attitudes towards science and the modern. Co-education of the sexes became normal.

The language itself was transformed, as the Ottoman use of the Arabic alphabet was replaced by a version of the Latin alphabet for a language that was sufficiently changed in both grammar and vocabulary to become a distinct language. Persian and Arabic grammatical influences were removed along with many words from the Persian and Arabic languages. New vocabulary was based on old Turkish roots going back to central Asia. Surnames for Muslims were legally enforced for the first time. President Mustafa Kemal (Kemal is a name given by his school teacher, according to Ottoman Muslim practice of the time) became the first person to receive a surname under this law: Atatürk.

Religion was not just pushed out of the public sphere, as the state sought to reduce the general social influence of religion, prohibiting religious brotherhoods and saints’ tombs. A religious affairs ministry was set up to regulate Sunni Islam, controlling the Friday midday sermons and repressing the more radical expressions of religion. Civil marriage was made compulsory on the French model, so that religious marriages were no longer recognised.

These changes, usually known in Turkey as the Atatürk Reforms or Turkish Revolution, were accompanied by a very strong drive towards assimilation into a majority Turkish culture, as defined by the republican elite. The Kurdish language (or languages), most the Kurmanji dialect (or language) in Turkey was not made part of the education system and was actively discouraged by the state. The same applies to the Zazaki language, or dialect, of the Tunceli region which as far as I can see is more a dialect of Farsi than Kurdish (or is a language closer to Farsi than the Kurdish language, which are certainly all related).

Not surprisingly, given such radical state led changes, violent resistance and state violence to overcome resistance is a major issue at this time. In 1925 Sheik Said Nursi led a revolt of Kurds to defend religious tradition and the traditional tribal-patriarchal power structures the state was challenging. This was put down with considerable violence. A rebellion around Tunceli (which was previously known as Dersim and is still frequently referred to as such) in 1937 to 1938, was in reaction to a 1925 law requiring the dispersal of the population to ensure Turkification. The rebellion was put down with considerable counter-insurgency state violence, which killed civilians as armed rebels. In the end, the law was never enforced in Tunceli or anywhere else.

Politically, Atatürk welcomed the principle of pluralism, but was not willing to follow it in principle. At Atatürk’s own initiative a Free Republican Party was founded as an opposition to his own Republican People’s Party in 1930. The intention was that it would be a loyal opposition concentrating on economic issues, but it became radicalised beyond the intentions of its leaders as it became a gathering point for various kinds of radical opposition including religious conservatives and leftists. The party was dissolved in the same year and the Republican People’s Party was uncontested in national elections until 1946 and first conceded electoral defeat in 1950.

Ottomanism, Republicanism, Nationalism I

Barry Stocker History, Liberty, Politics , , , , , , ,

The Republican experiment in Turkey goes back formally to 1923, when Mustafa Kemal (later Kemal Atatürk) proclaimed the Republic of Turkey after the deposition of the last Ottoman Sultan, becoming the first President of the Republic after holding the office of Speaker of the National Assembly. The office of Caliph (commander of the faithful), which had a symbolic universalism for Muslim believers world wide and was held by the Ottoman dynasty, was abolished in the following year. The Republic, as you would expect in the early 20s, was founded on intensely nationalistic grounds, creating a nation for Turks distinct from the Ottoman system which was created in an era of religiously defined and personalised rule rather than ethnic-national belonging.

The move in a republican-national direction can be taken back to the Young Turk Revolution of 1908, which itself put down a counterrevolution in 1909, and might be taken as a model for current political divisions (in a qualified clarification through simplification manner). The name rather exaggerates the nationalist element of the revolution. The governments which came after 1908, ruling under an Ottoman dynasty reduced to a ceremonial role, were torn between Turkish nationalist, Ottomanist, and Islamist replacements for the personalised nature of Ottoman rule.

In this context Ottomanist refers to creating the idea of an Ottoman citizenship and shared institutions rather than restoring the political power of the dynasty. Variations on these ideas include Pan-Turkism/Turanism (the unity of Turkish peoples from the Great Wall of China to the Adriatic Sea) and a Dual Monarchy of Turks and Arabs modeled on the Habsburg Dual Monarchy of Austrians and Hungarians (that is the Habsburgs were Emperors of Austria in the Austrian lands and Kings of Hungary in the Magyar lands).

The move away from a patrimonial state based on the hereditary legitimacy of dynasties, who were not formally restricted by any laws or institutions, goes back to the Tanzimat edict of 1839, issued by Sultan Abdulmejid I in 1839, establishing administrative reforms and rights for Ottoman subjects of all religions. This might be taken as providing a model of moderate or even conservative constitutional reformism associated with the Young Ottoman thinkers and state servants. It has its roots in the reign of Mahmud II. Mahmud cleared the way for the reform process by the destruction of the Janissary Order, that is the military corps which had expanded into various areas of Ottoman life and was an important political force. The Tanzimat period led to the constitution and national assembly of 1876, which was suspended by Sultan Abdul II in 1878.

Abdul Hamit carried on with administrative reforms, of a centralised kind which were seen as compatible with his personal power, accompanied by war against rebellious Ottoman subjects of such a brutal kind that he became known as the Red Sultan. His status has been greatly elevated by President Erdoğan who evidently wishes to see himself as a follower of Abdul Hamit II, rather giving away his tendency to regard democracy and constitutionalism as adornments to be displayed when they can be bent and twisted to his end, rather than as intrinsic values. The brutality of Abdul Hamit II, the violent reactionary, was foreshadowed in the reformism of Mahmud II. His destruction of the arch-conservative corps of the Janissaries was a highly violent affair in which an Istanbul mutiny provoked by Mahmud was put down through the execution of prisoners who survived the general fighting.

In this sketch, I try to bring out the ways in which the Ottoman state used systematic violence to reform and to push back reform, when giving rights and when taking them away. There is no Ottoman constitutional tradition respecting the rights of all and the pre-republican changes were just as violent as the most extreme moments of the republican period.

The ‘millet system’ of self-governing religious communities under the Sultan was a retrospective idealisation of ways in which the Ottomans accommodated religious diversity, at the time the capacity of the state to have legitimacy over non-Muslim subjects was declining. Serbia started revolting in 1804, leading to self-government within the Empire in 1817, on the basis of national post-French Revolution, not the ‘millet’ tradition rooted in classical Muslim ideas of ‘protected’ minorities. The strength of modern nationalism in the Ottoman lands is confirmed by Greek Independence, internationally recognised in 1832, following a war in which western educated Greeks familiar with ideas of nationalism and sovereignty provided the ideology.

The republican national tradition in Turkey is sometimes seen as a fall away from Ottoman pluralism and therefore as regressive. The ‘regression’, as in the influence of nationalism and reconstruction of the Ottoman state through centralisation and centrally controlled violence, actually goes back much further. The Ottoman state was not able to find ways of accommodating the aspirations first of non-Muslim subjects then even of Muslim subjects outside Anatolia and Thrace. In this process the Ottoman state was step by step becoming what is now Turkey, based on the loyalty of mostly ethnic Turkish subjects, including Muslim refugees from break-away states who fled into Anatolia, and to some degree on the loyalty of Kurds in Anatolia to the Ottoman system. Antagonism towards Ottoman Armenians was one part of this.

To be continued

Why protect speech?

Ethan Blevins Law, Liberty , , , , , , , , ,

The U.S. Supreme Court has extended more protection for speech than other major courts that adjudicate rights, such as the European Court of Human of Rights. Nonetheless, the Supreme Court is frequently wrong about why speech deserves constitutional protection. That error has undermined the First Amendment that the Court purports to protect. Continue reading →

More on the Turkish Elections

Barry Stocker Current Events, Liberty, Politics , , , , , , , , , ,

This is a sequel to my recent post Turkish Elections: Some Hope, so is best read after reading its predecessor.

In the last post, I covered the National Assembly elections on the 24th June. The first round of the presidential elections will take place on the same day and there will be a run-off between the two main candidates on the 8th July, if no candidate gets more than 50% on the first round.

As by far the strongest personality in Turkish politics over the last 15 years, Recep Tayyıp Erdoğan was no doubt expecting to win in the first round easily. He did so in 2014 when he was first elected to the presidency at a time when the president’s powers were much smaller. The two largest opposition parties of the time (CHP and MHP) put up a joint presidential candidate little known to the public and who did become much better known during the campaign. The campaign was in fact a surrender to Erdoğan who went on to ignore the constitutional limits on the presidency and push through plans for a presidential republic with little of the checks and balances known in other presidential republics, at least those in established democracies.

This presidential campaign has been an unpleasant surprise for Erdoğan. He has turned the MHP into a satellite party which supports him for the presidency. The cost of that, however, is that he has tied himself to a declining party in an attempt to compensate for a weakening of AKP (Erdoğan’s party) support since the days when it got 50% and over of the electorate.

The opposition has now found an energy unprecedented during the Erdoğan-AKP years (since 2002). It has turned the first round of the presidential election into a run-off to decide who will face Erdoğan in the second round, maximising opposition strength as its candidates enthuse different sectors of Turkish society against the current regime. It now looks impossible for Erdoğan to win the first round (without the help of rigging which is a real danger).

Some thought the opposition had already failed the presidential election when Abdullah Gül, who was President before Erdoğan, declined to run as a candidate of the small opposition religious conservative party SP. The idea around was that the two main opposition parties would accept him as a joint candidate. It is not clear this would have ever happened, and anyway Gül declined to run. He had been a founder of the AKP, but has not re-joined since leaving the office of President in 2014. At that time the President was required to resign from any political party. Gül has made indirect criticisms of the AKP under Erdoğan, but is a non-confrontational politician who has not put himself in clear opposition to Erdoğan and few expected he ever would. Some had the attitude that Gül was the only chance of the opposition winning the presidential election. I was never convinced myself. Adopting an AKP politician central to the AKP’s colonisation of the state and parts of civil society, particularly the main media companies, would have been a defeatist gesture, particularly given Gül’s own lack of energy in very stark contrast with Erdoğan.

The four largest opposition parties will all run presidential candidates, though three of these parties have formed a joint list for the National Assembly elections. Two of these candidates have a real chance to win. That is Meral Akşener and Muharrem İnce. Akşener is the leader of the second opposition party, İYİ, which broke away from the MHP. It has overtaken the MHP as the largest nationalist party. Though it has a clearly nationalist orientation, mixing Atatürk republicanism with nostalgia for the Ottomans and pre-Ottoman Turkish leaders, it has a a milder version of this than the MHP. İnce is a centre-left secularist CHP politician who previously tried to replace Kemal Kılıçdaroğlu as leader of the CHP.

Kılıçdaroğlu is not a strong public personality and has often been dismissed even by CHP sympathisers. However, he did a good job of keeping the CHP relevant in the period after the coup attempt of July 2016, when Erdoğan seemed to be achieving even more complete domination of Turkish public life. Kılıçdaroglu most famously led a Justice March from Ankara to Istanbul last summer, usefully turning his anti-charisma reputation into an image of quiet decency and endurance, marching for many days under a hot Turkish sun, though he is in his late 60s and there were constant fears of state promoted violence against the march.

Kılıçdaroğlu was again dismissed as too passive at the time Gül declined to run, and Kılicdaroğlu ruled himself out of the Presidential contest. It has turned out that he has maximised his strengths and weaknesses, by showing the inner self-confidence to allow his rival İnce to run for the most powerful office in Turkey. İnce has been a great campaigner so far and is doing better than I expected.

I thought Akşener would easily be the strongest opposition candidate, and she is doing well, but is very close to İnce, both for getting through to the second round and defeating Erdoğan. The latest opinion polls suggest Erdoğan would beat both but by a very small margin, meaning that a strong campaign by İnce or Akşener could win in the end, particularly if supporters of rival parties turn out in a spirit of unity for change.

The general thinking in Turkey now is that the opposition is likely to win the National Assembly but not the Presidency. Nevertheless the presidential contest is going far better than expected for the opposition and Erdoğan could look very diminished running in the second round after the AKP-MHP electoral list loses the National Assembly (where it currently has a two-thirds majority). İnce represents the most leftist and most nationalist element of the CHP. This combination is not unusual in Turkey, though left-nationalists prefer to identify themselves through the Turkish word for patriot rather than nationalist. I thought this would be a problem for İnce, in that he might be a negative both for Kurdish and centrist voters, but he has shown a capacity to reach out and make gestures to these sectors. Since the CHP National Assembly list has reduced the number of left-nationalists, his presidency would not be the unconstrained triumph of that particular point of view.