Resist Redefining “Democracy” as Elite Preferences, Kontorovich Says

To advance freedom, first do no harm

Israel Defense Forces videos released on social media have shown how U.N. facilities in Gaza became bases of terrorist operations.

[“America has a positive role to play in advancing freedom and democracy in the rest of the world,” is one of the themes here at The Editors. I’ve been reporting that out by soliciting, from a variety of thoughtful voices, answers to this prompt:

What are the most promising, concrete, specific steps America can take over the next few years to promote freedom, democracy, and rule of law in other countries? What places and people would you focus on, what’s the case for making the efforts, and how, practically, do you get it done given the constraints imposed by the American political and fiscal landscape?

Today’s response comes from Eugene Kontorovich. Kontorovich is a professor at George Mason University’s Antonin Scalia Law School and also a scholar at the Kohelet Policy Forum, which is based in Jerusalem, Israel. We first met at the Forward in the 1990s.

(Program note: The Editors ordinarily does not publish on Jewish holidays. This post was prepared and scheduled in advance for automatic publication during Sukkot.) — Ira Stoll]

Efforts to promote democracy and freedom in foreign countries face an inherently uphill struggle. Societies are extremely complex, and hard to change even by their own governments. Current State Department efforts to “promote democracy,” consisting of funding select NGOs, are principally an exercise in virtue signaling to domestic constituencies.

So perhaps the best way for the U.S. to pursue these goals is to first do no harm — to stop supporting policies, initiatives, and institutions that undermine democracy and the rule of law. Today, numerous international institutions serve as vehicles to advance supernational elite preferences, with processes that are non-transparent and unaccountable. Most prominent among these is the United Nations and its subordinate institutions. The United Nations is inherently undemocratic, giving totalitarian dictatorships the same authority as liberal democracies. It claims to promote the rule of law, while having an entire agency — UNRWA — become a branch of Hamas. Then the U.N. claims immunity from lawsuits by victims of its terrorist employees.

The very notion of the rule of law and democracy is now under attack inside the Western countries themselves. There is a broad effort to redefine “democracy” in a substantive fashion — the specific policy results favored by liberal European states are democratic. If people vote for alternative policies, especially on social and moral issues, the result is said to be “undemocratic.” Moreover, the “rule of law” has come to mean the rule of lawyers and unaccountable technocrats.

The clearest example of this is the European Union, which has adopted a “rule of law” policy which seeks to punish member states by withholding funds to which they are entitled. A recent E.U. demarche criticized Hungary for its alleged “misuse of whistleblower protection to undermine LGBTIQ+ rights and freedom of expression, and the infringement of teachers’ social and labour rights.” Whatever the merits of these issues, they have nothing to do with the rule of law. Indeed, they reflect the lawful results of Hungary’s democratic processes. The “rule of law” is being used to stifle democracy.

The United States has echoed this approach, condemning Hungary and Israel for laws that seek to regulate foreign-funded NGOs, even though there is nothing undemocratic about a country seeking to limit the domestic influence of foreign sovereigns.

When countries seek to shift power from bureaucratic elites to elected policymakers, as Poland did and Israel attempted to do during its failed judicial reform, the U.S government expressed hostility, as if the “rule of law” requires judges to choose their own successors. President Biden’s subsequent attacks on the U.S. Supreme Court, and proposals to subordinate it to the political branches, only further proves that in the West, rule of law and democracy have become synonymous with a narrow set of partisan, ideological outcomes, rather than anything to do with the predictability and popular representativeness of governmental systems.

Part of democracy means different countries may adopt different policies, to reflect the different preferences of their citizens. The easiest thing the U.S. can do to support democracy in foreign countries is to not undermine it.

Other, earlier answers: “Don’t Lose Any Countries” Is Elliott Abrams’s Advice, by Elliott Abrams

Counter Communist China in the U.S. and at the U.N., Ellen Bork Recommends, by Ellen Bork

Help Ukraine and Israel Prevail, Says Carl Gershman, by Carl Gershman