In this chapter we apply the theoretical model we introduced earlier to the behaviour of leaders to find out what alarms them, and under what conditions they are able and willing to order repression. We do not argue that we can accurately predict and explain every act of violence and repression. But we show how it helps us understand empirical patterns of repression. This model can inform our assessment of when we are most likely to observe human rights violations. To explain how context shapes human rights violations, we concentrate on why political regimes influence leaders’ threat perceptions and why democracies have the best human rights records, and why they do not always guarantee the protection of everyone’s basic rights. We outline the influence of mass dissent and of socio-economic factors. The chapter concludes with a brief discussion of how context shaped respect for human rights in six countries.

There is a political marketplace in which individuals transact with each other to produce public policy, but access to the political marketplace is limited because high transaction costs prevent the masses from participating. This divides the population into two groups: the political elite and the masses. Many people have observed this division, but often have gone on to advocate giving more power, and eliciting more participation, from the masses. That is wishful thinking. This volume explains not only why that division exists, but why it must exist. Because political power necessarily rests with an elite few, the only way it can be constrained from being abused is within an institutional structure that requires elites to compete among themselves for power, so some within the elite check and balance the power of others.

Prior to the Enlightenment, citizens viewed themselves as subjects of their governments, obligated to obey the mandates of the ruling class. Enlightenment thinkers argued that governments should serve their citizens, rather than citizens being servants of their governments. This had a constraining effect on the abuse of authority, but also led to a romantic notion of democratic governments being accountable to their citizens and acting in their interests, legitimizing the exercise of authority by the ruling class. This chapter discusses the historical evolution of democratic institutions to show how they emerged as a result of negotiations in a political marketplace. One advantage of democratic institutions is that the exercise of authority tends to rest with the positions people hold rather than with those people themselves. This mechanism for peacefully replacing those in authority constrains their ability to abuse their power.

While elites cooperate with each other, transacting in the political marketplace for their mutual benefit, they also compete with each other in other ways. They often have different policy agendas, but more significantly, they compete with each other for power. Those lower on the hierarchy of power work to displace those above them, and a division of power within government leads them to try to increase their scope of power, often by infringing on the power of other members of the elite. A system of checks and balances helps control the abuse of power by those who have it. The masses have little power, and the powerless cannot constrain the powerful even if the powerless far outnumber the powerful. The most effective way to constrain the abuse of power by the ruling class is to maintain institutions that facilitate competition among elites.

Following democracy’s global advance in the late twentieth century, recent patterns of democratic “backsliding” have generated extensive scholarly debate. Since backsliding towards autocracy is often the work of elected leaders operating within democratic institutions, it challenges conventional thinking about democratic consolidation, the enforcement of institutional checks and balances, and the reproduction of democratic norms. Drawing insights from classic literature on democratic transitions and consolidation, this volume examines the nature of contemporary threats to democracy, recognizing that the central challenge is not always to induce the compliance of those who lose elections, but rather those who emerge victorious and turn the institutional leverage of incumbency into a source of ongoing competitive advantage. There is, then, both a “loser’s dilemma” and a “winner’s dilemma” embedded in the study of democratic resiliency. Patterns of backsliding have revealed the contingent and potentially contested underpinnings of democratic institutions in any political order, given the presence (whether latent or active) of authoritarian political and cultural currents. Democracy is, therefore, best understood not as a standardized regime template or a static endpoint of political development, but rather as a dialectical frontier that advances ‒ and sometimes recedes ‒ according to the dynamic interplay countervailing forces.

For more than seven and a half decades, India has enjoyed the moniker of “world’s largest democracy.” In addition to this distinction, the country is the most enduring democracy in the developing world. India adopted universal suffrage in 1947, despite an extremely low per capita income. Since then, the country has sustained its commitment to democratic governance despite poverty, inequality, unprecedented diversity, and sprawling geography (Varshney 2013). This makes India both an important outlier as well as an exemplar for poor, multiethnic democracies the world over (Stepan, Linz, and Yadav 2011).

The separation of powers is not a theory of mechanical checks and balances or counterforce. Any sufficiently complex organization will have competing interests or sub-units; most do not have a separation of powers. This chapter identifies the conceptual and normative core of the separation of powers as a particular kind of institutionalization of the rule of law. It is an attempt to guarantee a separation of general rules from applications to particular persons by keeping them apart not only in time but also in personnel and institutional space. The chapter further argues that the idea of the separation of powers as articulated by Montesquieu joined that understanding of the rule of law to bodies and estates of the mixed constitution, relying in particular on independent and high-status nobles to defend the law against the political demands of the executive monarch equipped with coercive force. The democratization of the separation of powers in the American founding stripped away that social independence, and left the separation of powers weaker than has generally been noticed. The chapter concludes with considerations of the modern executive branch, and suggests that separation of powers reasoning might need to be applied internally to it.

The chapter explains the context of writing the Grundgesetz (the German Constitution). It introduces Article 15 which allows to ‘socialise’ land (and housing) and turn it into democratically managed commons. It also shows how the notion of ‘misuse of economic power’, an important context in which Article 15 was written into the Grundgesetz, gains a new meaning today.

This chapter explores the terms of letters patent for internal colonial government. It observes that every patent to a private colonizer prescribed a balanced colonial constitution: Some type of independent legislature in the colony, separate from the colonial executive, was to consult on laws and taxes. The chapter presents a strategic model to explain why this served the crown’s interest: An independent colonial legislature could restrain excessive extraction from colonists by colonial executives, which the crown itself – given the distance and its limited capacity – could not do.

This chapter takes stock of institutional configurations in the New World colonies at the time of the American Revolution. It observes that the same bundle of institutions that made individual colonies autonomous relative to the crown also made them autonomous relative to each other. In turn, this mutual autonomy presented major constraints when American state elites bargained over a national constitution. These bargaining constraints, as well as the institutional models of imperial government, resulted in some of the core institutions of the American state that structure so much policy making today: Federalism, checks and balances with a powerful legislature, judicial review, and even specific executive bureaucracies. The chapter concludes with a summary of the book’s argument.

As English state capacity grew and the crown faced growing financial constraints at home, colonies became tempting targets. This chapter explores the crown’s attempts to unwind the institutions of contractual imperialism and assert unilateral, direct control over colonies. However, when the crown made these attempts, colonial institutions had taken deep root over decades. The chapter explains why the crown was unable to force its vision of government on the colonies autocratically, and instead pivoted to a negotiated model of governance: Regulatory imperialism.

This chapter reviews the Framers basic design principles, including separation of powers, federalism, and a frank recognition that all governments are and must be coercive.  It then presents a simple baseline for describing voter (un-)happiness with whatever policies the government adopts. The chapter ends with a detailed roadmap of succeeding chapters.

This chapter begins by arguing that rule of law exists in the probabilistic sense that dispassionate judges often reach similar legal conclusions for reasons that appear to be universal across humans. Well-designed legal systems amplify these probabilities so that majority opinion quickly hardens into clear rules. Still, the question remains why judges should elevate rule of law above their own personal preferences. The answer seems to be that the legal communities they serve value and reward predictable outcomes. Still, the strength of this incentive varies from one era to the next, and is almost always weaker in highly polarized eras. Politicians threats to pack or otherwise hamstring the Court can compromise its rulings. Despite this, the Court remains an indispensable check on Congress, the Executive Branch and, through the antitrust laws, private power.

Antitrust may contribute to reduce the politico-economic power of certain dominant firms in the digital era. The perspective must however be broadened beyond antitrust, at least de lege lata, as the time may have come to elaborate upon a new scheme of separation of powers. Separation of powers is generally approached from a state-centered perspective, but a power-centered perspective more easily allows for a multidimensional approach to this principle.

Firms are not organized in a monolithic way; their organizations include checks and balances imposed by various sources. Separation of powers may be used, by analogy, in antitrust matters, especially to define organizational remedies or commitments. The search for an analogy between separation of powers and antitrust starts intuitively with the power of an agency or court to break up or unbundle a firm and naturally follows with merger control. A more promising avenue for analogy, though, resides in the fact that firms sometimes possess, de facto, regulatory powers in an industry, raising concerns inter alia on their organization. The reflection on organizational remedies or commitments is premised on the need for additional checks and balances within or on dominant firms whose platforms have a significant impact on society or democracy. It may ultimately lead to the creation of platform assemblies or parliaments. Finally, antitrust may also be raised as an argument or a defense to avoid or reduce sanctions and to get a merger approved.

This chapter explains the logic behind the choice of institutions that the book highlights. A liberal order is impossible without the capacity to form organizations able to act on behalf of private constituencies. Apart from providing shared goods, private organizations restrain entities capable of repression, including the state. Hence, a section of the book is devoted to exploring the political effects of Islamic and modern waqfs. Whereas the former played key roles in keeping civil society anemic, the latter is now invigorating civic life. Religious repression has been ubiquitous in the Middle East. In inducing preference and knowledge falsification in broad domains, it conceals doubts about policies promoted in the name of religion. In the process, it impoverishes and distorts public discourse. For these reasons alone, religious freedoms are also essential to liberal governance. Economic freedoms are pivotal because they shape political incentives and capacities. Private property rights, the freedom to invest, and predictable taxation are among the determinants of private political capacities. So are characteristics of the available forms of economic organization. Institutions that limit the scale, longevity, and complexity of Middle Eastern enterprises have reduced the political reach of private economic actors.

One motivation for this volume is to question the way that academic models of the political process depict preference aggregation and public policy formation. More significantly, this analysis has implications for democratic political institutions. There is an illusion, promoted by the political elite, that democratic oversight of government can control its power and direct it toward the public interest, but the powerless cannot control the powerful, even if the powerless far outnumber the powerful. The ability of constitutional constraints to limit government power and direct it toward the interests of the masses is also questionable, because those constraints must be enforced. If public policy is designed and implemented by the political elite, ultimately the power of government can be controlled only by a system of checks and balances that enables some of the elite to control the power of others. Democratic institutions can play a role in determining who holds political power, and constitutional constraints can play a role if there are institutional mechanisms to enforce them, but without a system of checks and balances that enables some elites to control the power of others, democracy and constitutional constraints are ineffective.