Can Abusive Borrowing Itself Be Abusive?
Balkinization (September 26th, 2021)
10 Pages Posted: 18 Nov 2021 Last revised: 10 Jun 2023
Date Written: September 26, 2021
Abstract
This short review of Rosalind Dixon and David Landau’s recent book, Abusive Constitutional Borrowing: Legal Globalization and the Subversion of Liberal Democracy (OUP, 2021) appeared in a symposium in the legal blog Balkinization. The review makes three claims about the book. First, it questions the authors’ argument that "abusive borrowing" is truly an effective technique that contributes to processes of constitutional retrogression and democratic backsliding. Second, the review suggests that the authors’ methodology and analytical framework lead them to be over-inclusive, that is—to give the label of “abusive borrowing” to processes that may not deserve that label. Finally, the review suggests that this over-inclusiveness may have genuine political costs. In a nutshell, it can aggravate processes of constitutional retrogression and democratic decline rather than stop or slow them down. The review illustrates these claims with references to the Israeli case study.
Keywords: constitutional retrogression, democratic backsliding, abusive borrowing,
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