The Case for Promoting Democracy through Export Control
Hathaway, Oona A., Harvard Journal of Law & Public Policy
"Is the Separation of Powers Principle Exportable?" That is the question posed to the contributors to this Symposium. The answer I offer here turns not on abstract principles but on my assessment of the real-world consequences of exporting the presidential system of separation of powers to other countries. This approach is grounded in the belief that a system of governance should be judged in significant part by how well it serves the best interests of the people whose lives it governs. If fragile democracies that import our system of separation of powers are more likely to collapse as a result, then we should be exceedingly cautious about aggressively exporting our system to those countries.
I begin by clarifying the scope of the debate. I then turn to the normative question on which the debate turns: Is it wise to export the United States's presidential system of separation of powers? Judging on the basis of the available empirical evidence, I conclude that usually it is not. The best empirical evidence points to the conclusion that fragile democracies that adopt a United States-inspired presidential (1) model of governance are, all else equal more likely to collapse than those that adopt a parliamentary system.
I want to begin by making clear what is and is not the subject of debate in this Symposium. This debate is not about whether the presidential system is right for the United States. Most commentators would agree that the presidential system works well for the United States--warts and all--and few would advocate that the United States adopt a parliamentary system. (2) The debate is also not about whether there should be limits on the exercise of executive power. All of the contributors to this Symposium agree that there should be limits, although they disagree about what those limits should be. Finally, the debate is not about whether the rest of the world can learn from the United States's constitutional system. Clearly, the rest of the world can learn much from the United States's system, just as the United States can learn much from the rest of the world. Instead, the subject of this Symposium is whether the United States's particular model of separation of powers is right not only for the United States, but also for the rest of the world. It is on this question that the contributors to this Symposium part ways.
There are two central reasons that a general policy of seeking to export the United States's presidentialist model of separation of powers to other countries is ill-advised. First, it assumes that there is a one-size-fits-all solution to the problem of governance. This assumption is ill-founded. In order to know what kind of governing structure will work for a particular country, it is necessary to understand the local conditions in which that governing structure will work. Is federalism a concern? Are there regional divides? Are there significant ethnic divisions? What is the history of the country? Is the country in recent transition from a military dictatorship? Is there economic stratification that makes certain models of democracy less likely to work than others? And, most important, what form of governance do the citizens of the country prefer? The assumption that we can determine whether a parliamentary or presidential system is better for the rest of the world ignores the importance of these kinds of local conditions. And yet these conditions matter immensely when deciding whether a parliamentary or presidential system suits a particular country, and they are more important than any abstract comparisons scholars can make.
Second, the claim that the United States's model of separation of powers should be exported to other countries is contrary to the available empirical evidence. I preface this discussion by noting that I have not done the empirical work on this question myself. When I was asked to participate in this Symposium, I did not know what answer I would give to the question of whether the American-style separation of powers is exportable. …