We don’t have the vocabulary to describe what happened in Egypt last week.
I’m not talking about the already-boring debate about whether it was a coup d’etat: official designations for the issue of US aid dollars aside, the military forcefully seizing power from an elected civilian government is pretty clearly a coup.
Maybe it’s better to say “concepts” than “vocabulary.” Because the military’s actions raise profound questions about the coup’s democratic legitimacy, questions political theorists still haven’t come up with a good answer to but have serious ramifications for the character of Egyptian democracy going forward.
First, I should be clear what I’m not talking about. Several writers (see Clayton Thyne, Josh Keating, Max Fisher, and Alex Seitz-Wald) have examined legal and political science research attempting to specify whether and under what conditions coups can help nurture, rather than undermine, fledgling democracies. This work is obviously important and relevant, but it doesn’t address whether coup itself was democratically legitimate — that is, whether it was morally justified by reference to the ideals that underpin the practice of democracy itself.
To understand the difference between “nurturing democracy” and “democratically legitimate,” think of an example from American history, President Lincoln’s suspension of the right to trial after arrest (habeas corpus). Lincoln’s act may have helped expand American democracy in the sense that it may (emphasis on may) have helped the North win the Civil War, which in turn expanded democracy by granting black Americans freedom and the right to vote. But whether Lincoln’s decision was democratically legitimate depends on things like whether it was constitutionally or legally authorized, or whether it abridged a fundamental right in a democracy. Put another way, whether or not a thing has good consequences for democracy doesn’t tell us whether it was democratically legitimate in the first place.
But what makes a government, or something it does, democratically legitimate? That’s been one of the central questions of political philosophy since, well, people started thinking about democracy in the first place. Everyone agrees democratic legitimacy has something to do with being authorized by the will of the people, but it gets really tricky to work out the details of what any of the words in that clause actually mean. But despite the enormous breadth of this debate, almost no ink appears to have been spilt on the specific case of a military coup supporting mass demonstrations against a religious, crypto-authoritarian elected government. Egypt’s coup isn’t something the post-Enlightenment philosophical canon appears to have anticipated.Fortunately, there are some helpful conceptual tools in one cranny of the vast democratic legitimacy debate. The sub-area I’m talking about, referred to as “the counter-majoritarian difficulty” by legal theorists, is the question of how, if at all, judicial override of duly passed legislation can be legitimate in a democratic society. “Rights versus democracy,” in simpler language.
There’s been an awful lot written about how to resolve this problem, but one influential, recent account lends itself neatly to explaining how one might think a coup — which seems to almost definitionally be undemocratic — might actually be seen as a democratically legitimate act. In Democratic Rights, Corey Brettschneider resolves the tension between rights-protection and democracy by arguing that it doesn’t exist. Democracy, Brettschneider argues, isn’t best understood as a system of voting — at its core, it’s a moral ideal of free citizens participating equally in self-rule and governance. Voting is an integral means of expressing these values, sure, but so are rights to (among other things) free speech, privacy, and basic material necessities. In Brettschneider’s words, “the core values reflect the status of a people as self-rulers. They thus justify the very right to participate upon which majoritarian procedures are based.”
This “value theory of democracy” implies that, when a court overturns a statue on grounds that it violates individual rights, the court isn’t acting undemocratically, but rather protecting democracy itself. Put in reverse, an elected government that attacks the rights guaranteed by democratic values can’t be seen as democratically legitimate.
It seems clear that Morsi’s government was engaged in an assault on just these sorts of rights. Morsi arrogated near-unrestrained power to himself in a November 2012 Presidential decree, and the Muslim Brotherhood government had pushed through harsh restrictions on the rights of activists and unions. Egypt analyst Michael Wahid Hanna summarizes these developments succintly: “the Muslim Brotherhood set out on a course to retool Mubarak’s authoritarian state and co-opt its tools of repression, with the Brotherhood itself in the helm.”
One might then see Egypt’s military as playing the same role as courts do in Brettschneider’s theory. Backed by strong public suport (as demonstrated by the broad-based demonstrations that precipitated Morsi’s legitimacy crisis), a non-elected institution moved to prevent the destruction of the rights that define democracy itself. A coup for democracy, then?
Not quite so fast. Courts that exercise judicial review are fundamentally different from Egypt’s military in that they’re constitutionally or statutorily authorized to do so. That means they’re operating inside a legal framework that, at least at one point, was expressly authorized by some sort of democratic procedure. Egypt’s military, by contrast, suspended the constitution in order to overthrow Morsi — which means suspending Egypt’s democracy itself. It’s one thing to say that constitutionally-authorized courts can, at the margins, act democratically by constraining legislatures; it’s quite another to say that suspending democracy itself can be a democratic act, no matter how grave the rights violations the suspension aimed to rectify.
Moreover, there are serious questions about the courts-military analogy that stem from basic differences between the two institutions. Jurists are steeped in legal and democratic theory, trained to respect the rule of the law. Soldiers and generals, by contrast, are experts in fighting and winning wars, not how to make judgments about rights and democracy. It’s not clear that militaries in general, let alone Egypt’s military in particular, have the basic building blocks necessary to play a constructive role in protecting democratic rights.
Concern that only elected officials can fairly make these judgments animate theories that grant more weight to democratic procedure (read: voting) than Brettschneider’s. New York University professor of law and philosophy Jeremy Waldron has made the case against judicial review in two significant books, though his essay “The Core Of The Case Against Judicial Review” summarizes the argument in a succint and readable fashion. Waldron’s basic view of democracy is that it’s a mechanism for resolving deep political disagreement; what makes democracy a uniquely legitimate form of government is that it sets up a fair set of procedures for resolving reasonable, but fundamental, disagreements about what makes a good and fair society. Courts, he argues, are a far worse procedure for resolving these disagreements for a series of reasons, including the fact that they aren’t meaningfully accountable to the citizens whose views they are supposed to be reflecting on.
Waldron’s point about disagreement is supercharged when we start talking about military intervention in democracy. Historically, military governments don’t deal well with disagreement, and Egypt is obviously riven by it. Even while the massive anti-Morsi movement swept Egypt, there were (much smaller, but not insignificant) pro-Morsi counter-rallies, which have intensified since the coup. The military’s response: killing 51 protestors at a pro-Morsi demonstration, a move which has prompted calls for outright rebellion from Morsi’s Muslim Brotherhood. The tragedy should serve as powerful support for Waldron’s skepticism about the democratic legitimacy of undemocratic actors. But as Waldron readily acknowledges, his strong defense of majoritarianism is tailored to a very specific set of cases — well-established and well-functioning liberal democracies where all major political actors share a basic respect for individual rights. That obviously isn’t contemporary Egypt, making it difficult to tease out how to apply the theory in specific to the Egyptian case.
The problem of assuming established, rights-respecting democracies goes beyond Waldron’s theory; most discussions of democratic legitimacy tend to assume that kind of country. So we’re back to where I started this discussion — we’re not quite sure how to talk about the democratic legitimacy of what’s happening in Egypt, because we’re not quite sure how to talk about democratic legitimacy in transitional semi-democracies in general. Though the old theories provide some insight, we need a new one.
One highly tentative suggestion is that, in a place like Egypt, democratic legitimacy should be understood by reference to the feature that makes it unique: democracy is at imminent risk of suicide. After what political scientists call “democratic consolidation,” roughly meaning when a fledgling democracy has developed the features of a mature democratic state, virtually no democracy in history has ever collapsed. That’s astounding testament to the strength of the basic assumption of the liberal democratic theories examined above: that, even despite the deep disagreement a theorist like Waldron finds in democracies, people tend to converge on the basic legitimacy of democracy in general. So, if real democratic legitimacy can only be had in a properly democratic system, this leads to one potential principle: actions that inhibit democratic consolidation, regardless of whether the government was elected or well-intentioned, cannot be considered democratically legitimate.
This should be paired with another very tentative principle: that undemocratic groups be given full right to participate politically to the extent that this participation won’t implode the democracy itself. Though even democratic philosophers as majoritarian as Waldron want to exclude “unreasonable” views from government, in a transitional situation, a significant portion of the population often supports illiberal groups like the Muslim Brotherhood. Not only does it in a certain sense contravene the popular will to bar them by law, it’s also likely to undermine consolidation itself by leading those blocs to undermine the fledgling democracy itself. Hence, democratic legitimacy in a transitional state also requires all actors respect elections and other procedures that take into account the basic disagreement about the character of the political system itself and channels it into democratically useful outlets.
What these principles say about the coup itself probably depends on your assessment of just how authoritarian the Brotherhood was getting and whether the coup necesssarily sets back democratic consolidation. There’s a lot of disagreement between knowledgeable experts on these points. However, the two principles do say something important about what comes next: the democratic legitimacy of the coup government will depend on the degree to which it sets its own power aside in favor of a new system that presents real opportunities for its political opponents. Marc Lynch floated a few ideas for how to do this, including “constitutional amendments or a national ‘round table’ of the major political forces and societal groups.”
This discussion isn’t just theoretical. The way in which Egyptians solves dilemmas like how to think about minority rights in a democracy and what the proper role of the military is in checking creeping authoritarianism in the elected branches will have a profound impact on the character of their polity going forward, as the way Egypt’s leaders and people resolve these questions will strongly shape the political institutions they choose. In that sense, what we think about as abstract philosophy in the United States is startlingly real in a country that’s literally building a democratic constitution from scratch.
In a strange way, it’s also real for American policymakers. One of the main findings of political science work on coups is that internationally condemned coups tend to give way much faster than those that don’t face international pressure. The United States thus doesn’t really have an option to sit the Egyptian coup out; doing nothing is pro-coup by default. Thus, presuming American policymakers care about supporting democratically legitimate governments, the philosophical question of whether or not Egypt’s coup was democratically legitimate has all of a sudden become a live issue for American foreign policy.