Hugo Chavez and the Rule of Law

Hugo Chavez goes to the polls in his second bid to amend the Venezuelan Constitution to eliminate presidential term limits. Should he lose, he has vowed to leave office when his current term ends in 2012; should he win, he hopes to rule for life. Chavez’s success seems likely because he has learned to manipulate the rule of law in his favor.

Chavez’ power grab, pursued through perfectly legal channels, exposes the Achilles’ heel of the rule of law: so long as you abide by its principles, you can do just about anything, including changing the rules to extend your control. The rule of law, as conventionally defined, requires that laws be clear, open, and equally applied to individuals and government alike. In recent years, it has become the subject of overlapping international consensus, such that dictatorships and democracies from Beijing to Burundi proclaim its virtues. The World Bank and other international donors have poured billions of dollars into improving the rule of law around the world. Everyone likes the principle because it promises procedural order and straightforward implementation of the rules, whatever they might be.

Chavez has been crafty in manipulating this set of understandings. In December 2007, voters narrowly rejected Chavez’ proposed constitutional amendments, which included both the abolition of term limits and the expansion of emergency presidential powers. Some human rights groups and the United Nations condemned that proposal, mainly for the low bar to invoking a state of emergency. This time Chavez has been careful to restrict the amendment to the abolition of term limits, and the international community has been quiet. Polls suggest that he will be successful, setting up the probability that Chavez will serve until 2018 and beyond.

There is, of course, nothing inherently undemocratic about constitutional amendments extending the term of leaders: indeed, one can argue that by artificially preventing voters from choosing a candidate they might prefer, term limits are themselves undemocratic. Yet there is something unseemly about a ruler in a democracy serving for life. Democracy is ultimately about processes, not personalities, and so we naturally are suspicious of a ruler who seeks to stay on forever.

From the perspective of the rule of law, the key question is whether rules on presidential terms are properly enacted. In the old days, a Latin American leader bent on extending his rule would simply have replaced the constitution after his bid to amend it failed. Indeed, Venezuelan history is littered with 24 discarded constitutions, second only to the Dominican Republic (29) in its rate of turnover.

Unlike many of his predecessors, however, Chavez was patient enough to wait for another day, paring down his proposal while quietly expanding his control over the media and courts. Chavez is a gadfly and a lightning rod, delivering and receiving epithets with great abandon. Perhaps over time he will ultimately run his country into the ground. But he is smart enough to have figured out that if he follows the rules, he can get away with a lot. Chavez represents a new disturbing kind of ruler for a new age – at a time when most are praising the rule of law, Chavez understands that he can use it to move toward unfettered power.

Comments

[truthseeker]

If Chavez is smarter this time it is because he has watched the master at manipulating the law to serve his ends...G.W.Bush. We won't go into the large number of questionable legalities of the last eight years.

No doubt you have covered them extensively before heading off to South America to look for self serving legal manipulations...right?...right? No? Well, then perhaps there are some fundamental moral, ethical and philosophical questions you need to tackle before you are ready to judge others.

At the very least you should have seen the outstanding account of the C.I.A. coup attempt in the documentary, The Revolution Will Not Be Televised, presently available on Google video. You would, at a minimum, understand a) the power of the media and b) the 'Obamalike' authority of Chavez.

[Brian Leiter]

Is it your thesis that term limits on executives are required by the rule of law and democracy? If so, why?

How is it inconsistent with the "rule of law" to overturn term limits in a democratic election? To my knowledge, the legitimacy of the electoral process has not been challenged in this case (as it was not challenged in either of the two elections in which President Chavez won a majority of the votes).

Innuendo about Chavez to one side, it would seem a better illustration of your point would be the way in which Mayor Bloomberg in New York sidestepped democratically enacted term limits without an election, relying instead on a representative body (the New York City Council) many of whose members are beholden to him for various political and budgetary favors. Obviously, if President Chavez had tried such a maneuver, he would be rightly criticized, as Mayor Bloomberg has been.

Perhaps an even more striking an attack on the rule of law, though much closer to home, was the installation of the former President George W. Bush by judicial fiat. One can imagine the reaction in this country if President Chavez had claimed office on such a basis.

In the last decade of his democratic rule, President Chavez has, in fact, overturned the ill effects of forty years of naked plutocracy in Venezuela. There is a useful factual discussion here, with many citations, here: http://www.zmag.org/znet/viewArticle/4133

[Tom Ginsburg]

My thesis is precisely the opposite of what Brian suggests: there is nothing either in democratic theory or the concept of the rule of law that prevents a ruler from being re-elected indefinitely. Indeed, on a simple definition democracy is harmed by term limits, which artificially restrict the choice of the electorate. On the other hand, one might argue that a pre-commitment to select new leaders every decade or so is democracy-enhancing, because it focuses attention on sustaining policies rather than personalities. Any policies worth pursuing should not depend on a single individual to carry them out. I am agnostic on which of these two approaches to term limits is correct as a matter of theory. But the point of the post is that Chavez played by the rules and arguably won because of that.

Like roughly 45% of the Venezuelan electorate, I remain suspicious of Chavez' motives. Unlike many of his opponents, I don't favor oligarchy. My concern is that populism dependent on oil revenue is hardly sustainable. Further, I suspect that Chavez' leftist rhetoric hides an anti-democratic streak. There is evidence that he has manipulated the courts and media, which stand in the way of his self-proclaimed "Bolivarian" revolution. And I'm not particularly happy about the Russian Navy conducting joint exercises in the Carribean. (Of course, the latter can be credited as yet another foreign policy acheivement of the Bush administration).

Here is an interesting thought experiment. What if US policy reversed course and began to offer aid to Venezuela? Would Hugo change his tone? Seems like the kind of fellow who needs an enemy.

[Brian Leiter]

Now I have to confess, Tom, that I really don't understand what the point was. If it is consistent with the rule of law and democracy to hold a vote on the abolition of term limits, and if the vote was fair and term limits are abolished, then what's the issue?

What is the source for the claim that 45% of the population of Venezuela is "suspicious of Chavez's motives"? I am guessing that may represent the portion of the electorate that did not support him in the most recent presidential election, but there is obviously no reason to think that portion of the electorate is "suspicious" of his "motives."

It would also be interesting to see some citations to sources that bear on alleged manipulation of the media and especially the courts in Venezuela. Obviously the quality of reporting about Venezuela in the media in the U.S. is extremely poor and obviously biased, so any pointers to other reporting about these issues would be welcome.

[Tom Ginsburg]

Chavez got a lot of attention for packing the courts after the 2002 coup, when he expanded the Supreme Court to 32 members after the Court failed to sufficiently punish the coup-makers. Since then, the courts have been supportive of Chavez’ policies. Last month, Amnesty International criticized the courts for failing to implement a decision of the Inter-American Court of Human Rights reinstating Venezuelan judges who were fired in 2003. See here: http://www.amnestyusa.org/document.php?id=ENGPRE200901158995&lang=e

On the media, the group Fairness and Accuracy In Reporting (FAIR), hardly a right-wing outfit, criticized media laws passed at Chavez’ urging. See here:
http://www.fair.org/index.php?page=2797

Chavez’ policies have generally been carried out through perfectly legal channels. But that alone does not make them normatively desirable. My broader concern is that the international consensus for the rule of law (relying on a thin conception thereof) incentivizes regimes to obey democratic forms while manipulating politics to facilitate one-party rule. It is, admittedly, a stretch at this stage to put Chavez’ Venezuela in the same league as Putin’s Russia or Khamenei’s Iran. But perhaps we’ll look back in five or ten years and the analogy won't seem inapt. A good outcome in this regard would be a regime like Lee Kuan Yew’s Singapore, which has maintained one-party rule while delivering social goods to the population. I fear that oil-based populism isn’t going to do it.

[Rodlian]

This one's for you, tyranny! Looks like Chavez is going the exact opposite of the Left. Unbelievable...

http://politic.ology.com/2009/02/16/recent-achievements-in-tyranny/

-Jared J. H. Catapano (ology.com)

[Brian Leiter]

Tom, thanks for those links which, unlike the link left by Mr. Catapano, actually have some factual content. The law to which FAIR draws attention does seem deplorable. The matter involving the courts is more complicated. One might think that a Supreme Court that fails to sanction those engaged in a coup is, itself, corrupt, the legacy of decades of plutocracy. "Packing" a corrupt court is, one might think, warranted under some circumstances.

The bottom line, though, is that apart from innuendo and the law noted by FAIR, there is nothing else to suggest that Chavez is anywhere close to Putin or Khameni, and the mere association of his name with theirs seems to be without any factual foundation.

You certainly do not need to convince me, a legal positivist, that the fact that something is lawful has no bearing on its morality or normative attractiveness. But the article I linked earlier certainly makes the case that President Chavez has enacted a variety of welfare-maximizing reforms in a country whose undemocratic nature was of little concern to the U.S. until it acquired an explicitly anti-American, but democratically elected, president.

[Tom Ginsburg]

“The mere association of his name with theirs seems to be without any factual foundation”???? Chavez has himself associated his name with theirs, considering Venezuela an ally of both countries. Like both leaders he has actively sought confrontation with the US. He’s conducting joint military exercises with Putin’s Russia. Like Iran, he’s been willing to support destabilizing terrorist groups in neighboring countries (FARC in Colombia). This is as abhorrent when undertaken by a left-wing government as it was when the US supported the Contras in the 1980s, and people of principle should call it like it is.

I’m all for redistributive economic policies. I’d like to see a new US policy toward Latin America that takes seriously the legacies of inequality and our often domineering role. But there's no logical connection between redistributive domestic policies and the worrying foreign policies I referenced. My suspicion is that we’ll look back and see Lula’s Brazil as the more successful brand of leftist politics than that of Chavez’ Venezuela. Time will tell...

[Brian Leiter]

Obviously Chavez was "associating" his country with Russia and Iran for different purposes than you were: you were suggesting, without much evidence, that Venezuela under Chavez is tilting towards authoritarianism. Chavez has sought military and diplomatic alliances with these countries not in order to confirm your innuendo about his country!

Iran has not "actively sought" confrontation with the U.S.; rather the opposite, though rebuffed by the Bush Administration.

I am aware that President Chavez has contested whether FARC should be described as a terrorist group, but what is the evidence that his support for FARC is even remotely comparable to U.S. support for the Contras in Nicaragua, which were largely a creation of the U.S. after the fall of the American-backed dictator in that country? Is there any evidence that Venezuela funds FARC? Obviously Chavez had no role at all in the creation of a guerilla insurgency in Colombia.

[Tom Ginsburg]

Iran and Russia are themselves somewhat ambiguous, described in the literature as "competitive authoritarians." Both countries have regular elections, and constitutional structures of a sort; but the courts, media and other guarantors of political competition are so manipulated as to become tools of the rulers rather than checks on power. And this is what I suggested might be the outcome for Venezuela a few years hence, a proposition for which I provided some suggestive evidence.

Unlike many on the left, I am skeptical of charismatic leaders who believe that they and only they can save their countries. Truly sustainable redistribution requires state institutions of the kind that Chavez has actively sought to bypass and undermine. I fear the likely outcome in Venezuela is, to use a phrase I just learned, 'pan para hoy, hambre para mañana' ('bread for today,hunger for tomorrow').

[JW]

To take on Tom's thought experiment and be tangential, I agree: Chavez needs an enemy.

I'd be interested if one could draw a correlation between declining commodity revenues and increasing rhetoric directed at "others," be they external or internal.* The curve might be non-monotonic. Democracies have little need to blame external regimes, because their democratic nature makes retaining rule less tenuous, and truly authoritarian regimes (eg, North Korea or Stalin's Russia) have suppressed opposition so thoroughly they need not take it into account. But mixed-regimes - like one which is both theocratic and democratic and run by a demogogue, or one in which a leader for life is "democratically elected" - might have the most tenuous grip on power, and thus the greatest need to mobilize support by any means necessary, including the construction and perpetuation of an other or others. One could extend this to regimes that are (say) economically open but politically largely authoritarian - Syria comes to mind as a possible candidate.

At the same time, I'd be curious to see whether democracies are equally susceptible to blame others (remember Freedom Fries?) - the counters to the democratic peace literature (see Christopher Layne or John Lynn Owen on this) probably get into this. And at the other end of the spectrum, I think Stephen Krasner's account of sovereignty gets into (!!!) the potential instability of Hitler and/or Stalin's regime(s).

I doubt US aid would make much of a difference. My suspicion is that the Venezuelan people as a whole would be smart enough to give credit where credit is due, but population distributions don't always follow a perfect Dahl-ian bell curve distribution, and thus pro-Chavez radicals at the right-end (left-end?) of the curve would fail to credit the US, either because they're simply cognitively incapable of accepting an "enemy" could be "friendly," or because they recognize the objective consequences of doing so, and reject (rationally) the consequences of doing so. And just because Venezuelans give credit for foreign aid hardly means foreign aid only could disempower Chavez (not that Tom argues this). Still, it's interesting to speculate what, if any, soft power would be useful in dealing with Venezuela.

I don't know about Luna. Everyone is happy a former union leader of a large nation seems to fit so well with the World Is Flat Davos Consensus, and Goldman Sachs et al are happy to harp on the market potential of Brazil, Russia, India and China. But from my perspective: Brazil cannot provide basic rule of law in the most basic of senses (eg, security) in its capital and largest cities. Russia is a state that depends on commodity revenues, ruled by an authoritarian leader, with scant history of democracy and arguably a deracinated (and deracinating) civil society. India is a democracy, but one which seems to contradict the prediction that democracy leads to economic growth and equality - I suspect the caste system somehow inhibit Indian "success," as well as (perhaps) colonial legacies. China has the potential for a social revolution as it transitions from a rural, agrarian economy to an urban, industrial/post-industrial one. If I worked at Goldman Sachs and had to bet on one of the four BRICs, I'd bet on China: Communist Parties (far stronger than Putin's rule) have tremendous ability to shape and control social change (to induce perestroika and then introduce glastnost, resulting in a stable transformation). But I'd be a hesitant bettor. And if I were an investor, I'd be wary of investment banks lumping together different emerging markets with significant risks, using simplistic "straight line" extrapolations, to market their products (have Lehman, Bear Stearns, and AIG - among others - taught us nothing?).

As for Russia, its power projection capability is minimal at best. The biggest I think it could accomplish would be to perhaps transfer small arms and military knowledge - perhaps something as "grand" as sophisticated air defense systems or aircraft, or perhaps some military doctrine that would prove useful, although here I am more skeptical - but it cannot maintain any permanent presence in the Americas. And I imagine while some of Russia's motivation might be to irk the US in its own backyard, perhaps as retribution for American actions in the Russian "backyard," hard cash might also be important - and of course, the hard cash motivation probably derives from the decline in commodity prices.

JW

* No rest for the resource curse theorists, I suppose - which is probably more a good than a bad thing.

[Drew Navikas]

I don't share professor Leiter's generosity of spirit toward Hugo Chavez. Perhaps I am a naive puppet of the imperial media, but I think that Chavez is a demagogue that is destroying value in Venezuela. It may be that he is no worse than the oligarchy, and that the losses are simply distributed differently across citizens and across time, but I would be curious to see an argument that his policies are anywhere near optimal for the country.

Consequently, I was not so skeptical of the original post. To my mind, the point was a variation on the parable of the boiled frog. Though small, legal steps, a politician can entrench his power such that the electorate does not recognize that the rule of law is gone. It is an issue of substance over form. The point of being president for life is to dominate the political process; the more entrenched Chavez becomes, the less genuine the nominal democracy of Venezuela will be. Clear, open, and equally-applied laws that have been approved by a majority of the population in serial form across time can, in the aggregate, function to choke off popular pressure on the substance of those laws. In that case, what good is the appearance of the rule of law?

This argument, if I have not mangled it too badly, is independent of any opposition to the vision of Hugo Chavez. One might approve of his anti-economic, pro-redistributive, bellicose platform, and thus consider him a genius for seeing it through. The concern that I have, and that some of those 45% of Venezuelans might have, is that I recognize, with faux humility, my own inability to know best how to tie my hands and subsequent generations' hands. Chavez's method functions to ossify the political structure, and ossification seems prima facie objectionable in a democracy. Chavez does not just want the citizens to be able to elect him for life, he wants to BE elected for life. This move must be seen as a piece of a larger whole.

Thoughts?

[Uzair Kayani]

I am not sure why this exchange is so spirited. I think people are skeptical of all the Chavez-analysis because he has majority support and his domestic policies are no more worrisome than those of many other places that we ignore.

The reason that we find him especially interesting is his foreign policy- mostly, his policy toward the US. Most people don't care about value in Venezuela anymore than they care about value in Atlantis. Our noble affections follow our schizophrenic foreign policy, and so we come off looking strange.

Finally, the ossification point seems overstated because we live in a country with a federal constitution and some fifty or so state constitutions; all of these ossify us a fair bit. I am not sure which democracy finds ossifying constitutions prima facie objectionable.

Maybe we shouldn't measure others against the great fluffy democratic utopia in the sky. That's not very endearing.

[Drew Navikas]

Having spent four years studying Latin American politics, I have an interest independent of Chavez's foreign policy. The question of how leadership interacts with Latin American development is quite interesting, at least to me. There was a time when Argentina was, economically, on the same footing as the United States--what happened south of the border?

As far as ossification, it is obviously a point to be made at the margins. Its is unhelpful to create a false dichotomy between "ossified" and "fluid." Venezuela has a constitution. We have a constitution. Both create counter-majoritarian, dead-hand concerns. The more that either becomes intractable, the greater those concerns become. In addition to structural entrenchment, such as the amendment process, there is a kind of cultural entrenchment. A cultural commitment to constitutionalism, something conspicuously absent across most of Latin America, is not the same as the "Bolivarian" commitment to a cult of charisma backed by structural revisions to the constitution.

The interesting feature of the revision to the term-limits, which did pass, is that it followed the rule of law and looks unobjectionable from up close. Stepping back, it loses its luster in the context of a constellation of "Bolivarian" policies that undermine the democratic legitimacy of the Venezuelan government. Mere majority support from the population does not legitimize a government, nor does it suffice to turn an otherwise legitimate government into a normatively desirable one.

Precisely what makes the persistence of the "Bolivarian revolution" interesting is that we have to compare it with other political movements and reforms in Latin America. If we could really compare it to a pie in the sky, it would obviously fall short.