Discussing Democracy with Harvard Law Prof. Noah Feldman

Discussing Democracy with Harvard Law Prof. Noah Feldman
  • Most sports fan might tell you that David Stern is a dictator, but Professor Noah Feldman makes a compelling case for Bud Selig in this article that appeared on Bloomberg entitled "Rules are Rules: Except in Baseball and Dictatorships."


    Professor Feldman, who teaches constitutional law at Harvard, argues that constitutional democracies value procedure to an extreme whereas dictatorships allow for their leaders to make exceptions to the rule. As an illustration, he compares Bud Selig's treatment of Alex Rodriguez to General Sisi's hostile takeover over Egypt.

    Professor, first of all welcome to ReplyAll.

    Can a democracy really never make exceptions? Are there really no instances in U.S. History of presidents making exceptions? Would President Obama's handling of the BP Gulf Spill a few years ago not qualify?
  • A democracy needs careful rules for exceptions -- and they shouldn't be made by the executive, but by Congress. The Constitution provides for suspension of habeas corpus in times of rebellion or war -- but it puts that exigency in Article I, where it's describing Congress's power, not the president's. As for the spill, what exception do you have in mind?
  • I should add that, outside a democracy, the rules might be different.Moses Maimonides, relying on rabbinic sources but also drawing on Aristotle, held that Jewish law could be temporarily abrogated in order to preserve the majority of the community -- although he believed that any such abrogation had to be temporary, not established as law for the generations. But his imagined world wasn't a democracy, but a monarchy guided by sages versed in the Torah.
  • If don't know if you remember this, there was some hubub at the time -- mostly partisan silliness -- that surrounded an article by Thomas Sowell (endorsed by Sara Palin) decrying the President's decision to force BP to set aside a 20B fund without due process of law.


    I'm less interested in the comparison itself, which is over-the-top, but more interested in the question of exceptions. Couldn't it be argued that what separates dictatorships from democracies is not merely rule of law, but whether the executive makes exceptions -- but just makes the right exceptions?

    Is there no such thing as a good exception?
  • That's a great question. The best test isn't the oil spill -- POTUS called in the executives, as I recall, and pressured them to create a fund in lieu of being sued, which may or may not have been wise but didn't violate the law -- but rather the Civil War.
    In March of 1861, with Congress out of session and the war on, Lincoln unilaterally suspended habeas corpus. He claimed -- and exercised -- the authority to arrest *anyone* he deemed a threat and hold that person without trial, indefinitely. Chief Justice Roger Taney, riding circuit, strongly condemned the practice as a violation of the Suspension Clause of the Constitution. But Lincoln didn't back down, then or later. He sought congressional authority, but when he didn't quite get it, he didn't stop, either. And he saved the Union.
    So: was that a good exception? Lincoln believed it was good because it was necessary -- that without it there would have been no laws to upheld because no union to promulgate them. I'm more skeptical. True, Lincoln exercised some discretion in arresting opponents. But in that period, we weren't a democracy. We were a constitutional dictatorship, as Clinton Rossiter put it in a book by that name.
  • You've written extensively (published several books in fact) on the issue of religion and state, and more specifically on Islam and democracy. For those unfamiliar with your books, can rule of law and democracy as we understand it exist in Islamic regimes? Is all that stands between Islam and the West the removal of exception-based governing?
  • In principle, the rule of law can exist in an Islamic state, democratic or otherwise. Classical shari'a in fact requires the sultan to be subordinate to God's law as interpreted by the scholars. If the sultan breaks the law, the scholars can call for his removal, or more realistically, support a rival for the throne in case of invasion or a coup.

    Today, of course, things are more complicated. The elected president of Egypt, Muhammad Mursi, is an Islamic democrat -- someone who believes both in shari'a and elections. His removal had no religious content -- it was totally a secular act by the military with support of largely secular protesters. We are in a striking situation now in Egypt where the supporters of the rule of law and democracy are actually the Islamists, with the secularists largely supporting the "exception" created by the coup. It would be one thing if a democratic government were in the cards now. But I see little reason to expect that.
  • Interesting.

    Even though your title here in this piece is provocative, your language is non-judgmental.

    Do you see democracies and rule-of-law as morally superior or do you view democracy and other forms of government, -- monarchy for example -- merely as two different approaches to government, each with their respective strengths and weaknesses?
  • Well, let me try to be precise. I think the rule of law, which can exist with or without democracy, is vastly superior to the lack of the rule of law. Aristotle and Plato argued about this: Plato's Socrates thought rule by the wise philosopher king without law was best, because laws are by their nature rigid while the philosopher king can fit the decision to the situation. Aristotle disagreed: he thought law was better, even though it only fits the majority of situations. I think he was right. Philosopher kings don't exist much. Good laws are our best bet at good governance.
    As for democracy, I love it -- in my own country. To flourish it needs political stability, a strong state, and the value of protecting minorities. Where some of these are absent, democracy is likely to fail, with serious consequences. Democracy can succeed in lots of cultural and political contexts, but there is always a large risk involved!
  • So would you then take issue with a world view that divides the world between free states and fear states -- I know that Natan Sharanksy takes this approach, I'm sure others do as well -- and claims that all people want to and can live in free societies?

    Is that democratic societies projecting their views on others?
  • I think no one wants to live in fear and have no say in his or her fate. But I also think most of us would accept a lack of freedom if the actual alternative was, say, the danger that our families would be killed by bombs or bullets. The first job of government is creating order. Its second is to implement regular, and if possible fair, rules to live by. The third is to make coercion morally justified by consent of the governed -- and that is where democracy comes in as one technology for doing that. Remember what Churchill said: democracy is the worst form of government -- except for all the others.
  • Max Added by: Noah Feldman
    Do you envision a moment in the future when we look back and chuckle about democracy?
  • Chuckle? Well, democracy at its goofiest still isn't as humorous as monarchy with all those epaulets and funny hats. Some thinkers have laughed at democracy because they thought the people couldn't be trusted to govern themselves. And democracy can go bad when it oppresses minorities -- but that is far from funny. I do think that in China today, some leaders and perhaps some ordinary people think democracy might not be able to handle our complicated world. When I look at Congress, it sometimes makes me want to laugh. But then I usually end up crying instead.
  • Bill James -- senior advisor to your Boston Red Sox (btw, I blame myself but how have we not even touched on A-Rod yet) -- recently told me the following in a separate conversation:

    "We could be drifting toward civil war. If the political process stops working, it will result in a civil war, as it has resulted in a civil war thousands of times over the course of centuries. And our political process is not working very well at this time."

    Would you take it that far?
  • I have the greatest respect for Bill James as a baseball savant -- no, THE baseball savant -- but hey, constitutional government is my area of expertise, and the answer is, absolutely not. Civil wars happen when the stakes of the debate are existential, like slavery, or when the state has weakened or been weakened to the point where it cannot control violence and protect citizens, as in Iraq in 2004-05. We are nowhere near either eventuality in the US, thank God. What we have is political disagreement in the context of relative civil calm. After the Bush v. Gore decision, did Democrats take to the streets? Nope. Everyone went right on living as normal.
  • You mentioned China. Are there any governments -- particularly of the Islamic variety -- that provide a working model for how a state can govern effectively without necessarily turning into a democracy over night?
  • I fear that right now there is no ideal example. Turkey was looking pretty good for a while. Its transition to democracy was slow, driven in part by the desire to integrate into the EU. Islamic democrats were deposed in a soft coup in the 90s, then got elected and governed effectively. Turkey is freer and more democratic under the AK Party than it was under the generals. In the last couple of years, Erdogan has arguably become too powerful because of getting elected a third time. That's never good in a democracy. There is reason for concern. Nevertheless Turkey is still a democracy, albeit imperfect.
  • Ari F Added by: Noah Feldman
    With the benefit of nearly a decade-plus of the democratic experiment in Iraq now in effect, how do you rate the current government's committment to the rule of law, particularly since the withdrawal of U.S. troops from Iraq?
  • I would say, not great. They are trying to hold on to order, and law has been pretty secondary. the human rights record isn't good, either. It's true that we left them a society barely hanging together, but they should do better!
  • With hindsight -- although perhaps your position at the time was the same -- what would have been the right way to set up humane governments in other countries like an Iraq?

    Do we simply have to come to terms with non-democratic governments, even when they oppress women, promote cruel and unusual punishments and deny their citizens basic freedoms?