The Illiberal Horizon
“Illiberalism” has assumed an invigorated if unanticipated significance in the 21st century. Aspects of illiberalism populate not only states long known as indifferent to such principles as personal liberty and equality but have also expanded in “liberal” democracies as their rulers employ purportedly “illiberal” practices more frequently than in the recent past. Whereas liberalism in the form of liberal democracy was gushingly claimed to be unstoppable in the years following the fall of the Iron Curtain, some governments of EU member states are openly transforming their countries into what Hungary’s Prime Minister Viktor Orbán proudly terms “illiberal democracies”.Footnote 1 In June 2019, Russia’s President Vladimir Putin proclaimed that “the liberal idea is obsolete”.Footnote 2 In the same month, the US Ambassador to Hungary, David Cornstein, suggested that US President Donald Trump “would love to have the situation that Viktor Orbán has”.Footnote 3 Just a month earlier, President Trump himself had reportedly likened Orbán to a twin brother.Footnote 4
The term “illiberal” has lost its negative aura in the context of state action. Practices such as the casual abrogation of citizenship revealed in the British Windrush immigration scandal and its associated “hostile environment” policy against foreigners, Donald Trump’s “Muslim ban” and Mexican border camps, and France’s actions against Roma in 2014 all reek of illiberalism—the selective exemption of vulnerable groups from standard human rights and the rights associated with citizenship. In Germany, the far-right Alternative für Deutschland (AfD) has established itself among the top parties nationally by pushing a party programme marked by staunch ethno-nationalist anti-immigration policies, and by running upending campaigns that included suggestions to shoot “illegal immigrants” at the border to prevent them from applying for asylum.Footnote 5 Concurrently, the charge of illiberalism has become a common refrain in most debates dividing Western democracies: activists and politicians on the left and right alike have come to accuse their opponents of secretly (or sometimes explicitly) pushing “illiberal” agendas.Footnote 6
The charge of “illiberalism” is employed loosely in political debates to taint opposing political viewpoints. Especially in countries with long traditions of self-characterised “liberalism” and “liberty”, for example in the UK or the US, such a line of attack can swiftly turn into questions about an individual’s patriotism or loyalty and, eventually, into accusations of undemocratic behaviour. It is not the aim of this article to make broad judgements about the validity of such accusations or, in general, about the use of “illiberalism” as a rhetorical device. Nor is it our goal to discuss the general phenomenon of political polarisation. Instead, we consider instances of illiberal practices at the hands of official state authorities and the wider use of the concept from an analytical point of view.
The relationship between liberalism and democracy has enjoyed frequent and detailed scholarly attention over the past decades, but their conceptual opposites are still shrouded in obscurity. Recent developments have corrected this omission. In The Light That Failed, political scientists Ivan Krastev and Stephen Holmes [Reference Krastev and Holmes2019] observe that “the future was better yesterday.”Footnote 7 The shared optimism of Western liberal commentators, so prevalent during the 1990s, has faded. In the face of an “illiberal counter-revolution throughout the post-communist world and beyond”,Footnote 8 complacent optimism gave way to a sense of urgency and impending doom. In a 2020 editorial, theorist Michael Freeden focuses on the current dis-integration of democracy and the issue of tying democratic procedures with the varying interpretations of the “manifold liberalisms on offer”. According to Freeden, liberal democracy is caught up in “rhetorical and ethical grandeur, linguistic and conceptual vagueness, and institutional confusion and fragility”.Footnote 9 In this paper, we seek to clear up some of that conceptual opaqueness about liberal democracy’s illiberal foe.
The two strands of illiberalism
We argue that what is commonly referred to as “illiberalism” can be separated into two phenomena marked by distinct logics. We suggest that illiberalism represents either an opposition to procedural democratic norms—as disruptive illiberalism—or constitutes part of an ideological struggle—termed ideological illiberalism. Disruptive illiberalism can be found in the disguised anti-democratic attacks of autocrats in the making. On the other hand, ideological illiberalism, in the form of unequal allocation of rights and duties, is a part of ideological clashes within outwardly “liberal” democracies.
The focus here is on the concept of “illiberalism” and its varied scholarly interpretations rather than on the reasons for its recent re-emergence.Footnote 10 To this end, we will first discuss the term as it is used in the vast literature on regime types as part of the debate on authoritarian/democratic hybrid-regimes. We will then turn to the rise of illiberal practices and policies in liberal democracies as the key puzzle in what one may call “illiberalism studies”. How have scholars accounted for the recurrence of illiberal tendencies even in some of the most liberal of countries?
Our discussions of these different variants of illiberalism are necessarily preliminary. All approaches to the concept, be it the analysis of regime types or illiberal traditions, have prompted copious debates. The scale of this literature is not helped by the fact that the usage of the term commonly remains ambiguous and vague in many scholarly accounts nor by the frequent empirical overlaps between disruptive illiberalism and ideological illiberalism. Therefore, the main purpose of this paper is to provide a heuristic that will help lay bare the logics behind these illiberalisms and ideally assist in analytically dis-entangling contemporary and historical phenomena. We aim to provide researchers with a framework to categorise phenomena that can be used in comparative or single case studies to isolate underlying causal mechanisms.
The recurrence of illiberal immigration policy
To further narrow the concept and its empirical implications, we turn to recent debates on immigration policies in Western democracies as a pertinent political issue in which illiberal practices have been pronounced and enduring. The American public intellectual William Galston goes so far as to identify immigration as the primary source for illiberal (and populist) politics.Footnote 11
Since the 1990s, immigration has taken centre stage in the politics of most advanced democracies. After the “asylum crisis” of the 1990s and early 2000s, immigration is again salient, powered by the current “refugee crisis”. Over the course of the past five years, Europe, the United States and Australia have witnessed an increase in anti-immigration rhetoric, violence against migrants, and punitive migration policies. In addition to other measures to curb immigration and enforce migration restrictions, many states have reverted to the use of camps to forcibly detain asylum seekers and undocumented immigrants. These camps, we argue below, are powerful expressions of illiberalism.
A recurring theme in these cases of ideological illiberalism is an underlying hierarchical concept of humanity that casts migrants, and other minorities, as standing outside the boundaries of rights to liberty and equal treatment. Such instances of illiberalism are often sustained by a deficient legal system and the erosion of rule of law principles from executive overreach and the creation of extra-legal or spaces of exception.Footnote 12 In this way, disruptive illiberalism can propel ideological illiberalism. The current clashes over migration politics as well as the restrictive and often illiberal responses by Western governments are by no means unprecedented. By providing a historical perspective, we contend that, rather than being entangled in an eternal struggle of good versus evil, “liberal” democracies have time and again consciously employed “illiberal” practices on behalf of what psychologists call the “in-groups” at the expense of individuals in the designated “out-groups”. We will close with recent developments in Europe and the United States to show how the two strands of illiberalism threaten liberal democracies today.
Disruptive Illiberalism and Hybrid Regimes
One of the most prominent usages of “illiberalism” in public political discourse, not least due to its popularity among political figures such as Viktor Orbán and Vladimir Putin, goes back to a 1997 Foreign Affairs article by the political scientist Fareed Zakaria. In developing his concept of “illiberal democracy”, Zakaria distinguishes analytically between constitutional liberalism, that is the legal guarantee of civil liberties, and democracy, that is the “procedure for electing government” by means of open and fair competitive multiparty elections.Footnote 13 Contrary to the hopes of many Western analysts in the early 1990s, Zakaria posits that democracy does not necessarily lead to constitutional liberalism and that liberal democracy might thus just be one of several possible varieties of democracy.Footnote 14 In fact, Zakaria interprets the liberal and democratic understandings of governmental power as being in fundamental conflict. While classic liberalism seeks to limit the reach of government power into the individual’s private sphere through the separation of powers and legal guarantees of basic rights, democracy emphasises the sovereignty of the people and thus the concentration and maximisation of power in the hands of the majority.Footnote 15
Illiberal states
Zakaria, of course, is not the first commentator to identify these theoretical tensions. He himself points to James Madison and the Federalist Papers. Footnote 16 Other scholars cite Carl Schmitt’s perilous severance of democracy from (political) liberalism, John Stuart Mill’s description of the tyranny of the majority, the changing historic interpretations of Locke’s separation of powers, or the anti-pluralist and totalitarian potentials in Rousseau’s writings on democracy and the general will, intensely debated from the interwar period until the 1990s.Footnote 17
In Freedom House’s 2018 report on Confronting Illiberalism, Nate Schenkkan picks up Zakaria’s concept of illiberalism as “an ideological stance that rejects the necessity of independent institutions as checks on the government and dismisses the idea of legitimate disagreement in the public sphere.”Footnote 18 Distinct from full authoritarian regimes, illiberal democracies still hold elections and do not subject their citizens to direct violent oppression; yet options for voicing discontent are already limited, participation in the political process is made increasingly difficult, and the rule of law is frequently undermined to serve the government’s objectives. The Varieties of Democracy Institute at the University of Gothenburg takes a similar approach in their V-Dem Dataset. Their most recent findings in autumn 2020 stipulate that “the median governing party in democracies has become more illiberal in recent decades. This means that more parties show lower commitment to political pluralism, demonization of political opponents, disrespect for fundamental minority rights and encouragement of political violence.” Notably, their data shows that the US Republican Party has undergone a strong shift toward illiberalism under the leadership of Donald Trump.Footnote 19
Illiberal democracies are thus symptoms of democratic backsliding. They are diminished democracies, closer to transitioning or democratic-authoritarian hybrid regimes rather than complete authoritarian or democratic ones. When considering recent developments in self-described illiberal democracies such as Hungary or Poland, the assault on independent institutions of checks and balances is visible in plain sight. In both countries, the governing parties have openly attempted to erode or to abolish outright liberal democratic institutions such as a free press and an independent judiciary.Footnote 20 These countries have been reproached by the European Union for such legal transgressions. The EU has recently responded by tying its coronavirus relief payments to meeting commitments to liberal and legal criteria. This strategy may prove too late and too infirm a response.Footnote 21
Zakaria’s use of the concept to describe alternative types of democracies has drawn critical fire from democracy scholars as well as from those focusing on philosophical theories of liberalism. In their 2002 article and 2010 book on “competitive authoritarianism”, Steven Levitsky and Lucan Way argue that concepts such as “illiberal democracy” display an inherent “democratizing bias”.Footnote 22 While Zakaria used his concept in a sweeping fashion to include “modest offenders like Argentina [and] near-tyrannies like Kazakstan and Belarus,”Footnote 23 Levitsky and Way maintain that regimes which resemble authoritarian regimes rather than diminished democracies should be categorised accordingly. After all, grouping such diverse cases as 1990s Argentina, Romania, and Belarus under the same label could “obscure crucial differences […] that may have important causal implications.”Footnote 24 On this argument, their alternative concept of “competitive authoritarianism” is not meant to be a complete substitute for “illiberal democracy” and similar categories, but offers a more analytical account of hybrid regimes.Footnote 25
Liberal democratic procedures
Levitsky and Way present four minimum criteria that democracies need to fulfil:Footnote 26 open, free, and fair elections of legislatures and executives; universal suffrage; meaningful authority invested in elected bodies; and the protection of political rights and civil liberties that guarantee equal chances for political candidates contesting elections, such as freedom of the press and association and protection of those voicing their opposition to the government. These criteria also imply the rule of law as another “intrinsic” dimension of democratic governance, which is often directly linked to liberal democracy.Footnote 27 Indeed, the rule of law and especially the legal mechanisms of appeal inherent to the concept function as crucial safeguards against the purposeful erosion of democratic norms. Their absence or subversion, as we will argue later, is a strong indicator of the presence of illiberalism.Footnote 28
Competitive authoritarian regimes maintain the appearance of honouring these democratic criteria by, for example, generally allowing political opposition and by holding competitive elections. Yet, incumbents routinely undermine elections so thoroughly that they can no longer be termed “fair”. Rather than reverting to voter fraud or stuffing ballot boxes, governments in competitive authoritarian regimes protect their power in more subtle and open ways while still creating “an uneven playing field between government and opposition.”Footnote 29 Such measures could include legal harassment of opposition candidates, independent journalists, or academics, government supported corruption and the misappropriation of public funds into the hands of supporters. It is often difficult to differentiate competitive authoritarian regimes from either democratic regimes that occasionally violate one or several of the four democratic criteria to a minor degree, or fully authoritarian ones in which alleged democratic institutions are mere façades.
The key difference between Levitsky and Way’s concept of “competitive authoritarianism” and Zakaria’s “illiberal democracy” is not the widths of the spectrums covered by their respective labels, but lies in the definitions of democracy that they employ. The comparativists’ democracy-defining criteria include civil liberties.Footnote 30 Zakaria rejects these criteria for a purely electoral definition. He concedes that “elections must be open and fair, and this requires some protections of freedom of speech and assembly”Footnote 31 but discounts anything more comprehensive as a mere “badge of honour” which has no place in a procedural definition of democracy.
The term “illiberal democracy,” we argue, is a misnomer based on a too narrow understanding of (liberal) democracy. It is true that democracy and liberalism are both contested terms carrying centuries of conceptual baggage. As Freeden reminds us, the comparative importance of the different aspects of democracy is “invariably observed through different ideological lenses” with adherents to different ideologies “jettisoning what is perceived as immaterial.”Footnote 32 Nonetheless, it is important not to reduce democracy to a procedural shell, devoid of political meaning. Democracies must protect minorities, represent their voices, and protect their chances of (re-)gaining power in the future. Rights and equal treatment are thus key characteristics of democratic polities. Freedom of speech and assembly alone do not guarantee free, fair, and competitive elections. If the separation of power loses its meaning and the judiciary turns into the long arm of the government, opposition politicians would have to fear legal prosecution for their political activities, thwarting them from competing in elections. If a government advances corruption in order to undermine its opponent’s chances, or if media outlets fear persecution whenever they publish opposition commentary, elections are not “fair.”Footnote 33 If large ethnic or religious minorities within a country are officially or virtually excluded from participating in the democratic process, that country should not be called democratic. The basic protection of civil liberties is thus necessary to ensure even the most minimal procedural democratic criteria. Without reining in the power of the elected to protect the opposition, democracy cannot function in the long run. Illiberal democracies in Zakaria’s sense of the concept are not only anti-liberal. They are essentially anti-democratic. Their illiberal practices to erase opponents’ liberties fundamentally disrupt the democratic process while keeping up the appearance of honouring electoral procedures. An exclusive focus on electoral procedure loses sight of such disruptive practices that can erode democracy through the back door.
Illiberal Practices
Whereas the debate sketched out in the foregoing paragraphs has centred on country-level variations in regime types, Edward Gibson, Robert Mickey, and Jacqueline Behrend and Laurence Whitehead have focused instead on subnational variations.Footnote 34 In their exploratory collection Illiberal Practices, Behrend and Whitehead single out problems of uneven democratisation in large, and, especially, federal polities. Even though democratisation processes might lead to the adoption of democratic institutions at the national level, the authoritarian structures of the old regime survive locally, supported by, for example, entrenched personal linkages between elites, cronyism, clientelism, biased media landscapes, gerrymandering, discriminating judges or the violent oppression of minorities by local police forces.Footnote 35
The case studies collected in Illiberal Practices point to the two overarching questions of “[w]hat drives these differential democratization processes at the subnational level in large federal democracies and, second, where illiberal and authoritarian systems persist, how might fuller democratization eventually come about.”Footnote 36 Conceptually, the authors emphasise that the boundary between democracy and authoritarianism is not pristine but rather resembles a “slippery slope” with localised illiberal practices and structures at one end of the spectrum and overtly and widespread anti-democratic ones at the other.Footnote 37 While they “may add up to authoritarian structures in some subnational units,”Footnote 38 illiberal practices and structures at the subnational vein do not only exist in cases of Gibson’s “subnational authoritarianism”Footnote 39 or Mickey’s “authoritarian enclaves.”Footnote 40 Such practices also comprise informal non-procedural institutions that “exclude or distort democratic participation to such an extent that they negate the principles of federal democracy proclaimed at the national level.”Footnote 41
At first glance, Behrend and Whitehead’s use of illiberalism resembles Zakaria’s description of “illiberal democracies.”Footnote 42 But, in contrast to Zakaria, they contend that illiberal practices and structures not only transgress a liberal understanding of political rights and freedoms but are indeed of a “less than democratic”Footnote 43 nature. Their concern is thus with illiberalism in otherwise liberal democracies, conceived as territorial variations in the levels of democracy proper.
Subnational illiberalism?
Despite the title of their book, Behrend and Whitehead’s discussion of “illiberalism” itself is modest. They do spell out their departure from some of the earlier conceptions of the term. According to them, political illiberalism is incompatible with democracy as it “involves actively discriminatory features of subnational politics that severely limit or render ineffective formal citizenship claims.”Footnote 44 Identifying these illiberal practices and structures is daunting since the distinction between undemocratic political illiberalism and other variations of illiberalism is rarely razor sharp.Footnote 45 For example, cases of social exclusion on the basis of religious affiliation in a given locality are uncomfortable situations for those affected but they do not qualify as anti-democratic structures per se.Footnote 46 Once such practices of “mild” social exclusion embed and move from not being invited to community events to efforts to undermine the democratic rights of certain minorities, they start to disrupt democratic processes. Furthermore, as the authors point out, “[political illiberalism] involves not just the absence of democratic guarantees but also, more important, the active presence of structures and practices that serve to obstruct the emergence of challengers and of constitutions.”Footnote 47 Locally entrenched illiberal practices and structures often fall short of constituting full authoritarian regimes and do not always justify the label “authoritarian enclave”. Undoubtedly, Behrend and Whitehead are correct in arguing that there are myriad ways to “restrict choice, limit debate, and exclude or distort democratic participation”Footnote 48 without reverting to formal legislation or written regulations. Especially within otherwise democratic states, subnational units might refrain from open conflict with federal authorities by hiding illiberal practices behind empty assurances of norm-adherence on paper. However, precisely demarking the nature and intensity of such illiberalisms is even more bracing when investigating such informal, or “unwritten,” local structures and practices which undermine democratic norms. This fetter notwithstanding, the move away from the discussion of national level regime types by Behrend and Whitehead is a potentially productive contribution to the study of democracy, and, together with works by Gibson and Mickey, opens up avenues with which to investigate the transition of states from authoritarian regimes to democracies.
This discussion confirms that illiberalism is a vague concept, often used intuitively to describe phenomena lying on a continuum between “good” and “evil”. This opaqueness is partly due to the messiness of political phenomena. On the other hand, illiberalism is commonly employed to describe the obverse of some form of liberalism; and often without much consideration for the theoretical traditions and nuances.Footnote 49 The use of the concept of “illiberal practices and structures” enables scholars to group together practices as diverse as the violent repression of opposition protest and systematically biased media coverage in local party elections.Footnote 50 Both undermine democratic norms in an illiberal fashion, yet they also exist on a continuum ranging from occasional mild illiberalism in the latter case to overt authoritarian practices in the former.
This proposition, in turn, points to a second observation regarding the use of “illiberalism” in the loquacious literature on regime types. Moving from an exclusively procedural definition of democracy towards one that includes the protection of some liberal values has caused scholars to equate the definitions of “illiberal” and “anti-democratic”. Rather than being contrasted with “liberal” values, “illiberal” is often employed as a qualifier of “undemocratic”: if a practice undermines the overall quality of democracy in a polity without amounting to an outright undemocratic regime, one might call it “illiberal”. While this usage does speak to the intuition of a continuum of anti-democratic tendencies—ranging from informal and diffuse illiberal practices to formal and rigid undemocratic structures—in practice, referring to illiberalism alone risks obscuring the relentlessly anti-democratic nature of these structures and practices.Footnote 51
We thus propose the term disruptive illiberalism to describe anti-democratic illiberal practices. As can be observed in cases such as Poland and Hungary (but also in long established liberal democracies), the primary targets of such anti-democratic practices are what one might call liberal institutions, as well as electoral norms and procedures: the judiciary, the press, academia, and international NGOs. The aim of disruptive illiberalism is to undermine democracy.
For accounts of “illiberalism”, observing subnational variations of democracy leads to the second, more vexatious, dimension of the concept: how do we account for illiberal exclusionary practices within liberal democracies? Exclusionary practices try to determine who is deemed worthy of being bestowed with liberal rights—they essentially determine who is considered a full member of society. Based on ideological arguments, such practices defy basic liberal criteria, such as equal treatment, vis-à-vis outsiders without necessarily attempting to undermine the quality of democracy for insiders. We call this second aspect of illiberal politics ideological illiberalism.
Ideological Illiberalism and Liberal Democracies
The “liberal” pillar of “liberal democracies” is often understood to comprise a much broader conception of liberalism than the narrow protection of a level electoral playing field and democratic procedures. “Illiberal” is then often used to describe a range of political activities that allegedly deviate from standard notions of civil, economic, or political liberalism. It is invoked when one of these principles—such as an independent judiciary, freedom of the press, the equal application of social policies, or the rights to private property—is violated but not abolished outright.Footnote 52
The quality of democracy in countries like the United States or the United Kingdom should not be equated with the state of democracy in Hungary, Poland, or even Russia. And yet both of those venerable liberal democracies, as well as many others, display insouciant and long traditions of illiberal practices and policies that exclude certain sections of society from the political process and subject others to differential treatment on the grounds of their countries of origin, the colour of their skin, their gender or sexual orientation, or other selective criteria.Footnote 53 Illiberal policies assume multiple shapes and encroach on the personal liberties of select groups in all aspects of political and private life. They can include exclusive tax benefits for heterosexual marriages,Footnote 54 the criminalisation of Sinti and Roma,Footnote 55 or forced sterilisations.Footnote 56 The political theorist Marc Stears daubs this propensity the “politics of exclusion”.Footnote 57
Ideological illiberalism
We propose the term ideological illiberalism to describe the practices that emerge from the politics of exclusion. Despite frequent attempts by supporters to justify exclusionary policies “in the name of liberalism” or to defend them as necessary “illiberal means to liberal ends,”Footnote 58 they break with basic liberal criteria. Rather than being designed to undermine democratic institutions outright, ideological illiberalism is aimed at demarking who is and who is not a full member of society based on ideological constructions of the societal in- and out-groups.Footnote 59 The boundaries between these two variations of illiberalism are unambiguous. While the disenfranchisement of felons in some US states may rightly be called exclusionary and illiberal based on the disproportionately racial dimension of the practice,Footnote 60 it is not primarily aimed at eroding democratic procedures overall but at creating unequal citizenship. On the other hand, as Mickey describes, disenfranchising poll taxes and literacy tests, targeting primarily African American but also some poor white voters, were key techniques in erecting undemocratic subnational authoritarian regimes in the American South during the late 19th century.Footnote 61
It is possible to find instances of ideological illiberalism and disruptive illiberalism sutured. Yet disruptive illiberalism does not need to rest on an ideational foundation beyond its anti-democratic nature. The practice of gerrymandering in the US is evidently anti-democratic and creates geographically unequal “voting power”. Gerrymandering, employed predominantly by Republicans as they presently control most state legislatures, mainly disadvantages minority-majority districts and advantages pockets of rural voters. However, the primary feature of gerrymandering as a technique is the preservation of power and the creation of an un-level playing field. Krastev and Holmes, in discussing the differences between Cold War East-West antagonism and the contemporary opposition of democracy and authoritarianism, argue that “the proliferation of authoritarian regimes is real. But authoritarianism, unlike communism, is not an ideology transferable across borders. It is an oppressive, non-consultative and arbitrary style of rule.” They add: “the concentration of all power in the hands of a single lifetime president is profoundly illiberal, but it does not constitute an anti-liberal ideology confronting Western liberalism on the plane of ideas.”Footnote 62
Against liberalism
Ideological illiberalism is “illiberal” because it does exactly that. It is, of course, not a straightforward task to identify the core ideas of liberalism. Albeit, we posit that political liberalism, at its core and as it is commonly ascribed to liberal democracies today, guarantees rights to personal liberty as well as to equal treatment vis-à-vis an individual’s essential characteristics.Footnote 63 Political liberalism’s key concern is the individual and their protection from government overreach. Yet these principles are not without limits (as Mill fully recognized, and as do many subsequent theorists adding footnotes to his essential analysis). Liberal societies can legitimately coerce against those breaking the law in order to uphold a maximum of overall liberty if the laws themselves rest on liberal and democratic principles and as long as everybody has access to legal recourse and due process. This, in turn, implies the rule of law: state coercion is only legitimate on the basis and to the extent of legal statutes and derivative secondary legislation. At least in theory, liberal democracies have put in place high legal thresholds to prevent arbitrary and excessive arrests, detention, or prison sentences. In the imaginary world conjured by Rawlsianism, liberalism entails a redistributive element if social and economic inequalities are to benefit the least advantaged within a given society. Furthermore, every member of a society must have equal access to public offices under conditions of equal opportunity.Footnote 64
While liberal democracies are thus allowed, for example, to tax people unevenly in order to level the societal playing field through redistribution, they are not allowed to restrict access to public services based on the colour of one’s skin or one’s sexual orientation. Liberalism allows for a limited intrusion into people’s lives on the basis of “what they do”, not however, on the basis of “who they are”.Footnote 65 To be sure, this is not a finite definition. The literature on political liberalism is vast and includes discussions of many varieties of these core principles as well as debates on many additional criteria.Footnote 66 The scope of legitimate state interference is especially contested as is the question of how far liberal guarantees and freedoms can go before they limit democratic participation too greatly.
Further, it is important not only to analyse policies in theory but to examine their application and consequences. The American criminal justice system can serve as an example: investigation practices, criminal prosecution, and prison sentences might be justifiable purely on liberal grounds. When scratching beneath the surface, however, some of these policies reveal non-random exclusionary and ideological forms. In the US, African Americans, Latinos, and other minority groups are disproportionally targeted by policies such as stop-and-frisk or the war on drugs. Systemic racisms exist at all stages of the wider criminal justice system, entangled with economic and spatial inequalities.Footnote 67 And while most of these policies are colour-blind on paper, they perpetuate an illiberal system—and are often consciously designed to do so.Footnote 68 An apparently innocuous policy can thus become vividly illiberal through its systematic unequal application in practice.
Ideological illiberalism is “ideological” not because it is in itself a “set of political ideas, beliefs, and attitudes that involve the adoption of practices which explain, support, justify or contest socio-political arrangements, and which provide plans of action for public political institutions.”Footnote 69 Rather, ideological illiberalism emerges from ideological constructions of inclusionary and exclusionary criteria. The unequal treatment of homosexual and heterosexual partnerships in Western democracies, for example, is often defended by pointing to Christian values and their role in constituting marriage between men and women as an institution more worthy of state protection and promotion. Other exclusionary policies rest on ethno-national identities, on beliefs about differential humanity and the West’s “civilizing” supremacy over the rest of the world,Footnote 70 or on long-standing racial hierarchies that still underpin systemic racisms even if the associated legal language has been divested of overt racisms.Footnote 71 In addition to drawing exclusionary boundaries, ideological illiberalism can expand the limits of state interference to the disadvantage of select groups.
Not all illiberal policies can be traced to a distinct and coherent set of political beliefs, but they do rest on particular ideas about society. Notably, they often rest on exclusionary aspects of liberalism itself. As one scholar writes, ideological illiberalism arises from ideological negotiations over two fundamental questions of liberal democracy: “[f]irst, who should be a [full] member of the polity? And, second, once accorded citizenship what obligations are incurred […]? The latter is an issue which results in two sorts of public policy: first, social engineering schemes to alter the economic and social circumstances facing citizens […], and, second, attempts directly to modify the behaviour of individuals by altering the balance of rights and obligations defining their relationship to the state”.Footnote 72
The genesis of ideological illiberalism
Scholarly accounts of ideological illiberalism not only examine the particular answers given to these questions in different polities, but notably also focus on the origins of illiberalism in liberal democracies. Two general theoretical approaches can be identified: first, illiberalism could emerge from conflicting ideologies. Rogers Smith’s “multiple traditions” thesis posits that US politics is characterised by conflicting political traditions with illiberalism strongly anchored in what he terms the ascriptive tradition.Footnote 73 In his influential article and book on US civic ideals and visions of American citizenship, Smith argues that American political culture has been shaped by the three conflicting traditions of liberalism, republicanism, and, crucially, ascriptive Americanism.Footnote 74 Before Smith, the stories that were told of US political development almost exclusively resembled a whiggish teleological account of overcoming exclusion and discrimination through the ever more generous expansion of “the nation’s inclusive ‘core’ principles”.Footnote 75 Yet this traditional view of prevailing liberal values, initially conceived by Tocqueville and later fleshed out by Louis Hartz,Footnote 76 fails to account for the recurrence and resilience of “illiberal ideas and practices” based on “ascriptive inequalities”—namely the unequal treatment of women as well as African Americans, Latinos, Asian Americans, Native Americans, immigrants, and other ethnic and non-ethnic minorities.Footnote 77 Against the flawed interpretation of the United States as the global benchmark for the rise of liberal democracy over feudalism, religious intolerance, British imperialism, Soviet communism, and, eventually, racism, Smith unravels a more complex analysis of American political development. Americans “share a common culture” which is made up of three political traditions interacting in “inconsistent combinations” and “accompanied by recurring conflicts”.Footnote 78
In The Two Faces of American Freedom and a follow-up article, Aziz Rana goes one step further to conclude that American liberalism, from the beginning, was built on the exploitation of outsiders, predominantly Native Americans and enslaved Africans and their descendants.Footnote 79 This white settler empire was first transformed at the turn of the 20th century, when American expansionism looked outside the American continent. Stylised as an anti-imperial tutelage of native populations, the US sought to increase its grip over countries like the Philippines. At home, after the Civil Rights struggles of the 1950s through to the 1970s, American political development was further re-interpreted as having always strived for being an inclusionary civic nation. This popular misreading of American history, Rana persuasively contends, has protected the routinely brutal illiberal institutions built on the premise of white settler supremacy from the fundamental reform they would have needed: the electoral college, life tenure for Supreme Court justices and equal Senate representation for each state regardless of population size, aided first enslavement, then Jim Crow and now systemic racism.Footnote 80 On a more abstract level, Rana suggests that, rather than conflicting with each other, America’s liberal tradition was consciously built upon the illiberal exclusion of outsiders.
Other authors suggest an even stronger entanglement of illiberalism with liberalism itself, building the discomforting claim that liberalism is marked by a hybrid character allowing for ideological illiberalism to arise from, seemingly, liberal arguments.Footnote 81
Liberalism’s inherent tensions
In his book In the Name of Liberalism, King argues that unresolved tensions within liberal democracy itself provide the foundations for illiberal policies. Crucially, illiberal policies are often linked to liberal values via the assumptions liberal theories make about individuals capable of fully participating in liberal societies and the obligations they bear as members of those societies: “since liberal principles accord such importance to rationality, individual autonomy and choice, and to knowledge, these constitute the ground for illiberal policies […] in ways which can be justified with liberal principles.”Footnote 82 Liberal demands, redistribution, and the emphasis of rights dependent on certain responsibilities of an imagined social contract can open the floodgates to illiberalism.Footnote 83 Historically, the tension between individual liberty and equal treatment and the sort of demands described here has led to numerous attempts to manipulate individual behaviour and to alter the relationship between the state and the individual whose freedom liberal democracies purportedly protect.
Examples of such liberal-illiberal transgressions include widespread coerced sterilisation based on eugenic pseudo-science as well as workfare and welfare programmes that impose unduly harsh conditions on participants. In 19th century Britain, welfare recipients would lose their right to vote and in 1990s New Jersey, single mothers would lose benefits if they had another child while receiving state assistance.Footnote 84 In Germany, debates surrounding the Hartz unemployment programmes display similar tensions: sanctions on welfare recipients that do not fulfil obligations such as regularly meeting advisors or accepting job offers were recently struck down by the Federal Constitutional Court in a divisive ruling.Footnote 85 The exclusion of people with disabilities from many aspects of public life or the abrogation of full citizenship rights would be examples of paternalistic illiberalism at the hands of liberal democracies.
Partially revoking rights on the grounds of an individual’s incompatibility with a social contract—or due to failures to fulfil civic obligations—is an illiberal practice with a long tradition in liberal democracies. From today’s perspective, some of these policies seem more justified, more “common sense”, and less “illiberal” than others. However, all these examples use the same distinct liberal justifications: they are based on liberal demands placed on the individual and aimed at engineering a society more in line with varying aspects, and varying interpretations,Footnote 86 of liberalism. Albeit, they still break with the basic and defining liberal commitments to equal treatment and liberty and are thus “genuinely illiberal”.Footnote 87 Debates over the extent of legitimate state action and the practical answers to the tensions described here give meaning to liberal democracy. According to King, they resemble “tests” which “should warn us that liberal democracy is a dynamic not a static set of institutions and values, the content of which should never be assumed but instead periodically scrutinized”.Footnote 88
Historically, advocates of illiberal policies had no need to veil them in a liberal guise. In liberal democracies today, however, the focus often falls on excising these obvious illiberal legacies; and, as structural racism in the US and colonial heritage in many European countries show, this agenda faces robust oppositions.
Illiberalism rooted in liberalism itself is more evasive and hidden, whether accidentally or by design, beneath language abounding with references to liberal ideals. These thicker notions of how liberalism itself bears the potential of exclusionary practices not only add a second analytical layer to the study of ideological illiberalism. They also alert us to masked illiberal practices. Nowhere are these conflicts stronger than in the realm of immigration policy and in the related decisions about access to membership in liberal democracies.
Illiberal Policies Against Outsiders
All states take decisions about whom to admit to their territory and, subsequently, to societal membership. These decisions are necessarily decisions about inclusion and exclusion and thus especially pertinent in the discussion of ideological illiberalism.
We examine immigration for two reasons. First, practices against foreigners seeking admission to a country’s territory are, in the first instance, not aimed at democratic procedures and are less likely to overlap with disruptive illiberalism. Mirroring Rana’s model of America’s two-faced freedom, we observe that proponents might even justify the exclusion of outsiders by pointing to the protection of democratic procedures.Footnote 89 This, of course, is not to say that exclusionary practices against other marginalised groups are not significant or not as widespread. Secondly, their very status as “outsiders”—geographically, culturally, financially, legally, etc.—makes asylum seekers and prospective immigrants vulnerable to illiberal practices. Their right to liberty and equal treatment does not rest on their status as citizens but on their humanity, a seemingly obvious characteristic which, nevertheless, many states, including liberal democracies, frequently disregard. Migrants’ lack of political representation makes it impossible for them to exert direct political pressure. Even though liberal democracies usually subscribe to the protection of a wide notion of human rights, their standard of treatment of foreigners—and especially the most vulnerable ones—often displays an astounding disregard for those principles. Rather than defending their status as full citizens against illiberal onslaughts, the rights of immigrants and refugees vis-à-vis the states they aspire to enter are often few and fragile to begin with.
While some overtly illiberal practices, such as selecting migrants according to eugenicist pseudo-science or racial hierarchies,Footnote 90 have become less pervasive due to internal civil rights struggles and the diffusion of liberal international norms, others, less obvious ones, have become more widespread. The current use of migrant detention camps, we argue, is such an illiberal practice: camps constitute spaces in which asylum seekers are deprived of their liberty through administrative rather than legal procedures. In this section, we will first briefly consider the normative debate on immigrant selection before turning to a discussion of migrant detention camps.
Illiberal immigrant selection
Even proponents of open borders like the political philosopher Joseph Carens grant states the right to limited border controls.Footnote 91 As Stephanie Silverman shows in her doctoral thesis, The Normative Ethics of Immigration Detention in Liberal States, Carens implicitly agrees with advocates of a nationalist exclusive liberalism such as the theorists David Miller or Michael Walzer.Footnote 92 The key differences between these theorists centre on the frequency and scope to which liberal democracies may legitimately employ immigration restrictions under liberal principles.Footnote 93 Whereas Carens would only permit temporary limitations on free movement in exceptional cases of overpopulation or in circumspections of acute danger to the “public order,” for Miller partial immigration policies based on national self-determination and national culture are compatible with liberal nationalism.Footnote 94 Walzer and Miller want all those admitted to a country for longer periods to be able to assume full membership eventually if they wish to do so. This criterion implies a direct link between immigrant selection and the interest of the present community to regulate national-cultural evolution. Whereas Walzer puts the right to communal self-determination above liberal claims to equal treatment and thus defends the selection of immigrants according to ethnic “desirability,” a contention the sociologist Christian Joppke calls “stunningly illiberal,”Footnote 95 Miller is more nuanced and warns against the use of prejudiced selection criteria. In order to avoid establishing illiberal ethno-cultural hierarchies, Miller argues, states must refrain from selecting immigrants on the grounds of ethnicity or initial political attitudes (if they are not immediately threatening to the community). Instead, “although national values and national priorities can reasonably be invoked when deciding how many immigrants to take in over any given period of time, when it comes to selecting among the applicants, only ‘neutral’ criteria such as the particular skills a person has can legitimately be used.”Footnote 96
In the introduction to his book Selecting by Origin, Joppke contrasts Walzer’s and other arguments in defence of ethnic selection with the realities of political communities. Liberal democracies are distinguished by a multitude of dynamic communities: “The notion of a master ‘community’ united by a ‘way of life,’ which stands to be defended at the immigration front, does not adequately describe the fragmented, chaotic, and multiple worlds we live in.” Joppke rightly dismisses this view as “sociologically naïve”, since a defining feature of liberal democracies must include neutrality about the “right” way of life.Footnote 97
These theoretical concerns have not prevented liberal democracies from engaging in illiberal immigration policies, almost entirely disadvantaging prospective immigrants of colour based on ideas of racial hierarchies. The discrediting of eugenics and biological racisms as bases for official state policy permit other forms of illiberal liberal-ascription to fill the void. Whereas most states now refrain from openly discriminating against certain ethnic groups in their selection procedures, Western democracies today claim to be defending themselves against ascriptively incompatible cultures. As described by political scientist Triadafilos Triadafilopoulos, aggressive civic integrationist policies through which non-Western immigrants are to be “compelled” to accept liberal “Judeo-Christian” values, might be warranted to defend liberal values against imminent and well-defined individual threats.Footnote 98 Once adopted more widely, as some proponents demand, aggressive integration courses quickly conflict with those liberal values: by employing force and sanctions instead of softer forms of persuasion and neutrality to integrate immigrants into Western liberal democracies, “civic integrationists risk alienating the very groups they seek to integrate”.Footnote 99 Illiberal integration policies demanding full assimilation under threat of sanctions reflect the same tensions inherent to liberalism that we describe above. This is true for demands to restrict (temporary and indefinite) immigration to persons from cultures judged compatible with Western liberal democracies. Basing immigration and integration policies on “defending” liberal values against groups of “illiberal” outsiders risks falling into an illiberal trap, that is “conflating the pursuit of security with the objectives of immigrant integration policy, reducing a complex and dynamic process into an uncomplicated two-sided relationship pitting a civilised and superior ‘us’ against a caricatured ‘them’”.Footnote 100
While there may be a valid normative debate about immigrant selection, authors writing on the ethics of asylum mostly agree that states must not select among refugees and (legitimate) asylum seekers in principle, as their individual need would supersede national claims to admission.Footnote 101 In practice, liberal democracies have created an “organized hypocrisy” around their obligations to assist refugees:Footnote 102 even though most accept the obligation to help those in need on paper, they try to deter those that seek help in practice.
Sociologist David FitzGerald documents how the states of the Global North have created almost insurmountable barriers shielding them from those obligations. Mechanisms of remote control, such as visas, airline passenger regulations, buffer zones, refugee camps, maritime cordons and so forth, have created a global “architecture of repulsion” against asylum seekers.Footnote 103 As theorist Matthew Gibney argues, the fact that only “some lucky individuals manage to slip through the net of restrictions” is not seen as evidence for the need for reform but rather as an indicator that “the institution of asylum is alive and well”.Footnote 104 Even those refugees that reach the Global North despite the adversities of life-threatening treks and boat journeys and against all the odds created by the “architecture of repulsion” face further fetters. Following a century-long tradition of “foreigner camps”, Western democracies have created illiberal detention centres within their borders to detain asylum seekers while processing their applications.
The historical evolution of immigration and camps
The mechanisms employed by liberal democracies to repel asylum seekers as well as other “undesirable” migrants have created a restrictive “non-entrée regime” directed against persons from the Global South.Footnote 105 Their institutional development started over a century ago and, despite the proliferation of human rights norms and the successive opening up of internal EU borders after World War II, such confinement systems expanded and endured.
Historians debate when and why exactly the liberal, open-border regime of the 19th century, characterised by scant controls and general free movement for all who could afford it, transformed into the restricted regime of general suspicion migrants face today.Footnote 106 Towards the end of the 19th century, the US started expanding local policies against Asian immigrants into restrictive national immigration policy. Driven by xenophobic agitation, the illiberal 1882 Chinese Exclusion Act excluding Chinese workers was a major step towards the racialisation and politicisation of national immigration policy.Footnote 107
Over the next decades, all immigrant-receiving countries across the Western world followed the American example. Motivated by a damning mix of labour-market protectionism, welfare state policies, and racist and often antisemitic tropes, more or less disguised beneath alleged “security concerns,” they enacted increasingly restrictive migration regulations. Many of these countries were of course simultaneously exporting millions of their own citizens as colonisers to imperially controlled colonies.Footnote 108 In the UK, the 1905 Aliens Act, which mainly limited Jewish immigration from Eastern Europe, broke with a tradition of liberalism towards migrants, especially regarding those claiming political asylum (a concept not fully enshrined in international law at the time).Footnote 109 The interwar period constitutes the decisive moment in this development. Under the shadow of the Great War and in the face of large-scale migrations from Eastern Europe, the countries of Europe as well as the United States decisively ended the “liberal moment in the history of international migration.”Footnote 110 In the absence of any legal protection or political support groups, migrants, including Jewish refugees fleeing from pogroms and civil war in former Czarist Russia, were at the mercy of national governments who decided, often arbitrarily, who was allowed to stay and who was sent back.Footnote 111
Among the policies put in place by Western states to thwart migration, such as mass group deportations of undocumented refugees, border closures and abrogation of visa programmes, aggressive border controls, ethnic-based quotas, the exclusion from legal recourse, and others, one practice stands out as crushingly illiberal: camps. Camps built to detain foreigners and national minorities signalled the exclusionary policies of states against targeted groups of immigrants and asylum seekers. From the beginning at Ellis and Angel Island, these camps were not only used to process immigration and asylum applications but also to discourage migration altogether;Footnote 112 to coerce migrants into returning to their countries of origins, regardless of their individual circumstances; and, moreover, to openly display a heavy-handed approach against outsiders in times of public anti-migration sentiments.
The use of camps in migration politics has not changed much since the interwar period. Indeed, as several researchers have noted, the practices of detaining foreigners during admission or before deportation has spread dramatically in liberal democracies in recent years.Footnote 113 What are the distinctive features of detention camps, and what makes these camps illiberal? To find answers to these questions, we first need to understand the varied usage of camps in 20th century politics.
Illiberal camps and camps for illiberalism
Historically, the systematic use of camps originated during World War I. A key factor in the spread of the camp phenomenon around the globe was the aggressive hyper-nationalisation of the late 19th and early 20th centuries which led to the omnipresent categorisations of peoples into familiar and alien, friend and foe, civilised and barbarian. Turning the combatants in the opposite trenches into enemies personifying absolute evil did not only set the scene for the unprecedented use of weaponry but also created a need for the more public display of prisoners in camps. Rather than being limited to war, camps quickly became part of the peacetime toolset deployed to police and control perceived enemies of the nation, whether internal or external.Footnote 114 Their widespread use led the late sociologist Zygmunt Bauman to hyperbolically crown the 20th century as the “Century of Camps”, and thus a wicked perversion of modernity.Footnote 115 Camps have become a shorthand characterization for states’ mistreatment of the vulnerable. This interpretive, linguistic link recurred recently when US Congresswoman Alexandria Ocasio-Cortez sparked controversy with her description of detention camps for “illegal immigrants” at the US-Mexican border.Footnote 116 In their 2000 book, Joël Kotek and Pierre Rigoulot pick up Bauman’s proposition and describe a global history of “Le Siècle des Camps” in an encyclopaedic handbook form. They distinguish three types of camps: internment camps,Footnote 117 concentration camps, and extermination camps. Each of these types are shown to follow distinct functions ranging from the isolation of a group of “suspects” to the modification of society by eliminating “undesired elements”.Footnote 118 Historians view the relationship between different camp systems as best described by models of loose transnational institutional learning and dynamics of internal radicalisation.Footnote 119
The American deportation camps of today cannot be equated with and do not follow the same goals as the industrialised extermination camps used by Nazi Germany in the mid-20th century.Footnote 120 But the use of camps––involuntary confinement––is now widespread in state responses to migrant and refugee claims and in repressing national minorities, and is in need of more scholarly attention from historians, sociologists, and political scientists alike. To date, only a few studies have examined camps as a historical and global phenomenon, with even fewer studies available in English.Footnote 121
In Camps d’Étrangers, Marc Bernardot studies French camps since World War I and provides readers with a detailed discussion of existing approaches to the phenomenon of camps as a policy instrument to detain foreigners.Footnote 122 Bernardot posits that camps have been intertwined with the development of modern states and the increasing control and surveillance of their territories. By means of the concept of “foreigner camps”, as opposed to the more commonly used term “internment camp”, Bernardot formulates a new analytical category that points directly to the use of camps as part of restrictive migration policies and the exclusion of those states deemed to be alien and deviant:
The camp has also been trivialised and spread throughout the countries of the South as the regular space for refugees. It has even become the humanitarian space par excellence. However, the concept of the camp has developed differently in the countries of the West. It has once again become usable as a repressive space due to the framing of migration as a menace linked to terrorism.Footnote 123
Greiner and Kramer’s Die Welt der Lager offers a robust analytical approach by focusing explicitly on the institutional dynamics of camps.Footnote 124 Their general definition of concentration camps as places “for the mass housing of individuals or groups that are being separated from society as security threats” is narrowed down by their focus on camps with a repressive function.Footnote 125 The authors of the case studies collected in their volume do not discuss foreigner camps specifically but their general findings also apply in our case.
From a more contemporary perspective, the work by political scientist Stephanie Silverman and her collaborators on the normative ethics of detention facilities, as well as their empirical discussions of camps, is compelling.Footnote 126 In their introduction to Immigration Detention, Amy Nethery and Silverman delineate defining practices of illiberal camps: immigration detention is an administrative rather than a legal-punitive measure, yet in more and more countries, detention facilities resemble prisons (and, in some countries, they are one and the same). Perversely, migrants in detention camps in countries like the UK or the US, despite explicitly not being detained for a crime, often have far fewer rights and their treatment is far less regulated than that of prisoners. Many of the legal procedures that would otherwise ensure liberal standards of equal treatment, protection of personal liberty, and the rule of law are absent.Footnote 127 Migrants are either practically unable to seek legal recourse due to administrative barriers or their access to legal recourse is barred.Footnote 128
States justify migrant detention predominantly by pointing to the administrative challenges of assessing the legitimacy of the application made by asylum seekers. During the periods between arrival and admission of potential asylum seekers—as well as between refusal and deportation—governments claim to have a superseding interest in preventing absconding that allows them administratively to curtail the individual liberty of migrants. This claim is empirically spurious. Silverman shows convincingly that alternatives to camps exist and that community supervision programmes have proven to be more effective in preventing flight from administrative decisions while also infringing less on the individual liberty of asylum seekers.Footnote 129 However, even if, in some cases, the risk of absconding was so high as to justify detention over alternative programmes, this would still not save the current system of migrant detention from the charge of illiberalism. In reality, the reason for setting up camps and centres is not only to facilitate and expedite administrative procedures but also to achieve wider immigration goals.
These insights correspond closely to the underlying logic of ideological illiberalism. Tightly connected to racial hierarchies, migrants, today, are still being categorised and selected according to systems of “differential humanity”.Footnote 130 Not dissimilar to the construction of mortal political enemies during World War I, as described by Greiner and Kramer, pundits and politicians routinely evoke images of the “uncivilized” to conjure a lethal security threat to their nations. Ever since the beginning of the 20th century, immigration has been linked to such security concerns.Footnote 131 Despite their vulnerability and involuntary flight from dire situations, asylum seekers have often been met with suspicion and hostility. In the countries of the Global North, immigration has come to be associated with “alien invasions”.Footnote 132 In addition to the administrative functions, foreigner camps thus take up a symbolic repressive function in the system of migration control. Crucially, they signal symbolic restrictionism Footnote 133 to their own population and symbolic deterrence to potential future immigrants and asylum seekers.Footnote 134
Both of these secondary justifications are fundamentally illiberal. They revoke the liberty of entire groups of people and turn them into political symbols of a threat that needs to be contained. Especially in situations of high political saliency—be it 2020 or 1920—governments react to anti-immigration pressure from the electorate with symbolic actions against migrant groups.Footnote 135 Creating prison-like structures to detain migrants of unknown status is an effective way of showing action and displaying a heavy-handed approach, regardless of how effective the policy is. Once political language and rhetoric establish a link between migration and crime, justifying these group-based infringements on personal liberty against non-criminals as temporary emergency measures becomes acceptable but sparks a dangerous downward spiral of ever more illiberal detention programmes: “immigration detention communicates just as clearly to domestic audiences as it does to asylum seekers on their journeys. For this reason, we can observe a ‘race to the bottom’ […], whereby political parties joust for the most restrictive asylum policies to demonstrate their commitment to maintaining the ‘integrity’ of state boundaries.”Footnote 136 Crucially, symbolic restrictionism and symbolic deterrence both encourage states to treat immigrants badly and consciously to create and tolerate conditions that are beneath minimum standards of living, as the situation at the US-Mexican border clearly shows.Footnote 137
Configured illiberalism
Detention camps for migrants are strong manifestations of ideological illiberalism. Even though liberal democracies argue that they are necessary features of a rational administrative system for the scrutinizing of immigration claims, they violate core liberal values and undermine the rule of law. Oftentimes, the only escape from detention of an indefinite and unknown length is for asylum seekers to return to their home—a place many left due to unbearable circumstances.
For Bernardot, detention camps are part of three wider developments which we suggest are part of ideological illiberalism in liberal democracies. First, they are evidence of the willingness of states to circumvent protective legal institutions by creating extra-legal spaces and by strengthening administrative and executive action to display symbolic actions. Secondly, they show how the process of institutionalisation of administrative practices has led to the formalization of arbitrary practices and not to their eradication. And thirdly, they show how the interplay of different policy areas, in this case security and migration, can lead to the illiberal conflation of policy objectives: the war on terror is used to justify detention and surveillance—in other words administrative criminalisation—of those that the right to asylum is supposed to protect from persecution and criminalisation in their countries of origin.Footnote 138
Configured as spaces of exception in which the politics of exclusion are plainly visible renders detention camps as examples of ideological illiberalism.Footnote 139 From their origin, camps have displayed exclusion in action. Interwar Germany is a pertinent example for these early post-World War I developments. As xenophobic resentments against Eastern European Jews rose in the early 1920s, the democratic state and federal governments of the Weimar Republic decided to create “concentration camps” (sic!) to detain refugees. Both practical and humanitarian considerations and Germany’s fraught international position after World War I, made the forced deportation of Jewish refugees impossible. The idea of using camps became more and more popular as a tool that promised to prevent international criticism of state-led antisemitism while also fulfilling protectionist policy objectives and calming a public agitated and hostile towards Jewish refugees from Eastern Europe. The first such camps opened in Prussia and Bavaria in the winter of 1920/1921. These camps were explicitly installed to eliminate alleged threats emanating from refugees, to ease the pressure on the German housing market, to prepare mass group deportations, and to deter future migrants. The German government hoped simultaneously to present them as “welfare institutions” internationally to avoid the charge of antisemitism. The reality of the camps, of course, was starkly different. Rather than welfare, they resembled punitive and repressive institutions. In the summer of 1921, a Prussian parliamentary delegation under the left-wing representative Mathilde Wurm protested against the inhumane living conditions and clear antisemitic coercions by camp guards (including the lack of sanitary facilities, meagre food provisions, frequent physical abuse, and intentionally locked doors during a fire) calling the camps a “disgrace for German culture.”Footnote 140 The political protest fell on deaf ears at first. Only once the camps became too expensive for the strained inter-war state budget in 1923 were they closed by the centre-left Prussian government.Footnote 141
Such detention camps are powerful instances of ideological illiberalism not only because they “accidentally” violate liberal principles. They are not simply “illiberal means to liberal ends.” Instead, both historically and as they currently function, camps are designed to display illiberalism as exclusion. They are de facto means of administrative coercion with grave psychological and physical consequences for the affected individuals and with scant or no legal recourse for those confined in them.Footnote 142 The German interwar jurist Ernst Isay criticised Weimar Germany’s practice of mass deportations and arbitrary administrative decisions on migration applications as “the remains of a police state” which went against the ideals of the rule of law.Footnote 143 Today, many liberal democracies have included rights to asylum and legal recourse over migration decisions in their legal frameworks. An international human rights regime curtailed arbitrary illiberal decisions against individuals. But the architecture of repulsion, and above all, modern day detention camps are evidence that the illiberal “remains of a police state” are still alive and well in liberal democracies around the world.Footnote 144
Illiberalism in Plain View
The fate of the Central European University (CEU) powerfully illustrates disruptive and ideological illiberalism combined in action, and how illiberalism can be fostered in a putatively liberal democracy whose autocratic leaders are steadfastly pushing it towards one-party state authoritarianism of the sort we described above.
Opening its doors on 1 January1991 in Budapest, the CEU was founded by the billionaire financier, George Soros, as a part of his philanthropic effort to fan democracy in the former communist Eastern European states including Hungary (where he was born). For the last five years, the CEU has been targeted by the Viktor Orbán Fidesz political movement hostile to the values of liberalism and internationalism which the University conveys. This campaign has forced the CEU physically to move from Budapest to Vienna because of the state’s determination to deny a free centre of academic learning protected by the rule of law.Footnote 145
In elections in April 2018 the Prime Minister Viktor Orbán unashamedly promoted the notion of “illiberal democracy” as the most attractive means of organizing the state and led his Fidesz Party to a huge electoral victory (taking two-thirds of the parliamentary seats). His platform included not just extensive anti-migrant promises and rhetoric but an explicit anti-Soros plank, accusing the financier and his university of bringing foreign influences into the state including through the Soros Foundation-supported CEU. The CEU is accredited as an American graduate programme offering advanced master’s and doctoral programmes in English for students, many of whom come from Western, Central and Eastern European countries. Once in office, the party enacted its so-called “lex CEU” law forcing the CEU to move its base from Budapest to Vienna.Footnote 146 The pressure was part of a general legislative attack on NGOs as voices of civil society in a liberal democracy (especially those working with migrants), and an intention to erode any accountability of the executive, the exercise of which is a distinguishing feature of liberal democracy. Orbán’s personal animosity to Soros allegedly laced the anti-CEU drive.
The degradation of the CEU’s rights and status was methodical. The ease with which the Fidesz party government could enact and pass the restrictive laws reveals how the apparent institutions of liberal democratic government may exist in name only. Hungary has the trappings of a free country (a judicial system, no secret police) but is in practice a democracy at risk of being set firmly on a trajectory towards becoming a one-party system intent on hollowing out democratic norms and institutions for its exclusive purposes.Footnote 147 Furthermore, in the classic inter-war authoritarian strategy the dominant ruling party in Hungary has made ample use of the law to proscribe activities and institutions it dislikes. This arbitrary use of executive power can be declared lawful but, in the absence of genuine constitutional and appeals courts, it is in fact despotic.Footnote 148 Despite a recent move in favour of the CEU at the Court of Justice of the European Union (CJEU), the university’s status in Budapest is fragile and its return from Vienna uncertain.Footnote 149
The undermining and displacement of the CEU also exposes the weakness of external agents committed to liberalism and opposed to illiberalism. The European Union is a defender of such basic liberal values as academic freedom and the rule of law, but has been ineffectual in this role.Footnote 150 As a US accredited graduate programme CEU might have expected support from the US—which could well have been decisive given America’s power—but the juxtaposition of the US’s own norm and rule breaking executive, President Trump, ensured that there was no American response to challenge the rise of illiberalism.Footnote 151 Orbán seized his moment, recognizing the weakness or indifference of domestic and external impediments to pursuing his implacable hatred of liberalism, the doctrine which implies checking executives and avoiding despotism by setting up accountability mechanisms.
In the absence of international assistance, all hope rests on new oppositional coalitions from within. In December 2019, “[echoing] the green push at city and state level in the US aimed at countering Donald Trump’s decision to leave the Paris accord,” the mayors of the capitals of the so-called Visegrad Four, the countries standing at the forefront of disruptive illiberalism in the EU––Poland, Hungary, the Czech Republic, and Slovakia––announced a new “Pact of Free Cities” to jointly counteract illiberalism in their countries.Footnote 152 Hungary’s government swiftly responded to the mayoral pact by issuing new legislation curtailing opposition and municipal influence.Footnote 153 The historical parallels to inter-war Europe are too obvious to spell out.Footnote 154
This example of the CEU’s displacement points to some of the elements that can help withstand illiberal practices and ideas in a liberal democracy. Without the rule of law, independent judiciaries and robust appeals processes, the foundations upon which a liberal democracy rest can collapse speedily. Liberal democracy needs appeals processes to compel executive authority and executive abuses of power to face accountability tests and reviews. At the micro-level institutions such as camps, in which rule of law mechanisms are suspended or at least likely to seem distant to internees, maintaining legal processes with external members is crucial. Such spaces of exception, “[zones] in a liberal democracy that the sovereign controls but where liberal-constitutional principles do not govern or govern only partially,”Footnote 155 can be found in many liberal democracies and while it might seem impossible to abolish them completely, it is imperative to monitor and limit this use of illiberalism. An atmosphere in which whistle-blowers face recrimination and abuse—as was the case for the civil servants called to testify in Congress during the impeachment hearings concerning President Trump’s exchange of aid to Ukraine for political assistance in investigating his opponent Joe Biden—constitutes disruptive illiberalism, as do efforts to compel the independent US Department of Justice to behave partially.Footnote 156 These actions deliberately weaken the mechanisms of executive accountability and the rule of law intrinsic to liberal democracy.
The regulation of media and defence of free journalism is equally vital to monitoring illiberal procedures. The rise of social media and massive tech companies such as Facebook and Google, which are driven by profit-based algorithms to maximise “user engagement” (that some allege includes a willingness to accept uploads of fake or hate based news stories) fundamentally conflicts with liberal procedures.Footnote 157 Online media reportage did not create illiberal ideology or anti-democratic ambitions.Footnote 158 But it has enabled like-minded purveyors of these beliefs and values to meet and reinforce each other, diffuse their arguments more widely than ever before, and to do so liberated from opposing views. Fuelling the rise of online anti-democratic and illiberal extremists is a determination to revert to a world in which in-groups, organized around racial and ethno-national categories (considered defunct until the 2010s), dominate over “out-groups.” The core element of this tendency is racism, specifically versions of white supremacy expressed in central Europe in anti-Muslim policies, in Germany in the rise of neo-Aryan concepts such as “Bio-Germans”, in France by Renaud Camus’s “great replacement” conspiracy theory, and in the US’s emboldened white identity politics.Footnote 159
Illiberalism can follow two distinct logics: a logic of anti-democratic disruption and a logic of exclusion. Both variants signal a return to issues unresolved at liberalism’s emergence and commonly institutionalized in liberal democratic procedures: the failure to reconcile the nation with a pluralist and inclusive conception of belonging, instead of building hierarchies and exclusions which have endured.Footnote 160 This movement against democracy and equality can arise, the historian Anne Applebaum remarks, in “any society” and she thinks that “if history is anything to go by”, all societies will eventually face its challenges.Footnote 161
That pessimism may be due to the fact that, in our modern world, the claims of imagined national homogeneity (and associated rights of citizenship) have trumped other sources of membership and, crucially, the right to membership. From Trump to Orbán, illiberalism falls harshly on those still defined as beyond membership. Judging by current trends and exacerbated by turns to protectionism and anti-pandemic border closures, both disruptive illiberalism and ideological illiberalism are, once again, on upward curves in our democratic societies.
