Introduction
Since the turn of the century, the spread of left and centre-left governments across Latin America and, in particular, a new wave of constitutional reforms have led scholars to speculate about the possible emergence of some kind of a post-liberal democracy in the region.Footnote 1 Most prominently, Benjamin Arditi observes an ‘experimentation with post-liberal formats of political participation’ among the new and heterogeneous Left.Footnote 2 Arditi identifies a series of post-liberal elements that do not replace the liberal state and electoral democracy but rather tend to transform liberal democratic polities by adding non-liberal forms of participation and citizenship.Footnote 3 Deepening Arditi's analysis with a view to Bolivia, Nancy Postero argues that the agenda of the Morales government is not only about moving towards post-neoliberalism, but also about transforming, or ‘vernacularising’, liberalism.Footnote 4 Comparing the socio-economic, political and cultural transformations in Bolivia, Ecuador and Venezuela, Arturo Escobar also finds traces of post-liberalism, as well as of post-developmentalism and post-capitalism, but concludes that, overall, contemporary political changes point towards alternative forms of modernisation, not alternatives to modernity.Footnote 5 Boaventura de Sousa Santos calls the emerging situation in these three countries ‘demo-diversity’, the result of an ‘enrichment’ of representative democracy with participatory and communitarian forms of democracy.Footnote 6
Until recently, writings on post-liberal democracy have focused on the ‘established liberal democracies’ in Northern America and Western Europe and consisted mainly in normative sketches of what an ‘improved’ democracy could look like.Footnote 7 In contrast, Arditi is interested in the experimentation with post-liberal politics that is ‘already happening’ across Latin America, particularly in relation to forms such as presupuesto participativo (participatory budgeting), municipios autónomos (autonomous municipalities) and usos y costumbres (indigenous customs and practices).Footnote 8 In general, these post-liberal challenges to the current forms of democracy in Latin America have come from below: from social movements, indigenous communities and local politics.Footnote 9 With new national governments promising and, indeed, initiating national ‘re-foundations’ via constituent assemblies, these challenges have culminated in processes that aim to profoundly transform political regimes. Whether in the shape of ‘participatory democracy’, ‘radical democracy’ or ‘radical populism’, these challenges are widely seen as pointing towards a transformation of current modes of democracy into something less liberal and somehow differently democratic.Footnote 10 Contemporary Bolivia is a crucial case for this debate: prima facie, Bolivia is the Latin American country that most clearly combines continuity in terms of basic standards of representative democracy with substantial innovation in terms of deviations from mainstream notions of liberal democracy.Footnote 11 Whether the recent wave of leftist governments, and especially the new constitutions in Bolivia, Ecuador and Venezuela, have led to macro-political changes that indicate the emergence of post-liberal democracy at the state level is, however, still rather unclear.Footnote 12 Existing studies on these transformations, while often rich in terms of empirical analysis, are usually characterised by a lack of an explicit conceptual framework that would enable a systematic assessment of this question.Footnote 13
This article has, therefore, a dual purpose. On a general level, it aims to develop a conceptual framework that would enable systematic analyses of political change towards post-liberal democracy, in Latin America and beyond, and probes the plausibility of this framework in a case study on Bolivia.Footnote 14 On a country-specific level, it seeks to demonstrate that the concept of post-liberal democracy helps us understand the contemporary transformation of democracy in Bolivia. After having made the case that the ongoing transformation of Bolivian democracy can indeed be fruitfully analysed through the lenses of post-liberal democracy, the article also discusses how post-liberal democracy has advantages over competing analytical perspectives such as populism and defective (that is, illiberal or delegative) democracy. The case study on Bolivia covers the period since Morales’ first inauguration in January 2006. After a brief overview of the political changes since then, the changes to the politico-institutional order are analysed in detail, looking at the new constitutional framework, the preliminary state of its implementation and, in an inevitably selective way, the actual patterns of Bolivian politics under Morales.
Post-Liberal Democracy: A Conceptual Framework
Even if democracy is usually defined in rather limited, procedural terms, its actual meaning is de facto much more specific: democracy as liberal democracy, according to Schmitter, is generally equated with ‘constitutional, representative, individualistic, voluntaristic, privatistic, functionally limited, political democracy as practiced within nation-states’. Post-liberal democracy, then, is about questioning these substantial, if implicit, ‘qualifiers’ without breaking with basic standards of representative democracy in the Dahlian sense.Footnote 15 This is precisely what Arditi is observing in Latin America. The incipient emergence of post-liberal politics ‘does not suggest the end of liberal politics and its replacement with something else, yet it is clear that the post of post-liberal designates something outside liberalism or at least something that takes place at the edges of liberalism’.Footnote 16
At a very general level, then, post-liberal democracy is characterised by the persistence of the basic features of representative, electoral democracy while being less liberal. But in order to develop a conceptual grasp on Arditi's ‘something’ beyond or at the edge of liberalism, it is necessary to systematically identify the potential challenges to the substantial, liberal ‘qualifiers’ in liberal democracy.Footnote 17 In this sense, a conceptual framework can draw, for example, on the notion of five ‘partial regimes’ that, according to Wolfgang Merkel and colleagues, constitute the main pillars of liberal democracy (see Figure 1).Footnote 18 By taking such a substantially liberal conception of democracy as a benchmark, it becomes possible to systematically identify the potential challenges and deviations that a movement towards post-liberal democracy might include.
Figure 1. The Analytical Framework: Post-Liberal Challenges to Liberal Democracy
(A) Electoral regime: The competitive election of public office-holders is at the core of liberal democracy. At the same time, however, the direct control of the population, in the liberal democratic model, ‘is limited to the election of the governing elite and does not have any influence on how power is exercised between elections’.Footnote 19 Substantially, this limited reach of the electoral regime points to liberal democracy's fear of the Tocquevillian ‘tyranny of the majority’. In this sense, direct-democratic or plebiscitary mechanisms, by expanding the reach of popular elections and majority decisions, challenge the usual boundaries of liberal democracy.Footnote 20 At the same time, communal forms of self-government at the sub-national level that rely not on electoral rule but rather on ‘deliberative assemblies for decision-making, horizontality in organizations, and rotation of assignments’ may exempt crucial – especially local – policy domains from the electoral regime.Footnote 21
(B) Political rights of participation: These, again, are crucial as preconditions for competitive elections, but also constrained. They consist in the right to vote (in representative elections; see above) as well as in the range of freedoms (of association, assembly, speech, opinion) that enable the collective formulation of opinions and demands. At the same time, ‘non-electoral politics’, such as non-institutional political participation through social movements, do not have a systematic place in this liberal democratic conception,Footnote 22 nor have ‘non-liberal channels of participation’, such as participatory budgeting, ‘that seek a voice in the allocation of public resources rather than in the designation of public authorities’.Footnote 23 Liberal critics have argued against both non-institutional and non-liberal participation on the basis that these, by breaking with standards of equal representation and privileging those that mobilise and organise best, are selective and, in the end, undemocratic. Others see participatory innovations as ‘parallel and alternative channels that complement representation’, or even ‘as an integral part of representation itself’ that solves some of the well-known deficits of representative institutions.Footnote 24 Whatever their precise relation with existing liberal democratic institutions might be, as long as unconventional forms of participation remain embedded in a representative framework they clearly do not replace liberal democracy, but rather add non-liberal mechanisms. If systematically established, both participation by mobilisation and participation in resource allocation, therefore, point towards post-liberal democracy.
(C) Civil rights: The ‘basic constitutional rights’ that protect ‘the individual against the state executive and against acts of the elected legislator’ represent the core element in the liberal (constitutional) containment of popular sovereignty.Footnote 25 Democracy, from the liberal perspective, has to be tamed in order to be democratic.Footnote 26 Post-liberal democracy may deviate from this conception in two ways. First, democracy's reach can be expanded, either formally by subjecting constitutional issues to democratic procedures (for example, through constituent assemblies or referenda on constitutional reforms) or informally by means of a ‘populist’ style of governance that, by invoking ‘the power of the people’, tends to bypass institutional constraints.Footnote 27 Second, the notion of citizenship rights itself can be broadened. Whereas, in the liberal democratic model, ‘the socio-economic context’ is considered something outside the democratic regime even if the latter is embedded in the former,Footnote 28 ‘social citizenship’ as defined by T. H. Marshall may also be regarded as an indispensable feature if formal (liberal) equality is to have any real meaning.Footnote 29 Here, liberal democracy's ‘restriction to formal political equality’ and to civil rights that protect the citizen against the state is challenged.Footnote 30 Furthermore, the introduction of collective rights can challenge the individualist conception of liberal rights itself.Footnote 31 Collective rights (of indigenous peoples and/or ethnic minorities) can aim at protecting specific groups against the state, at endowing them with entitlements to autonomy and/or at obliging the state to respond to the specific needs of groups.
(D) Division of powers and horizontal accountability: In the liberal democratic model, the existence of ‘state agencies that are authorized and willing to oversee, control, redress, and if need be sanction unlawful actions by other state agencies’ is the primary mechanism to prevent the democratic state, specifically the executive, from infringing on individual freedoms and undermining competitive elections.Footnote 32 The rule of law is, certainly, the most important element here. Yet, the role of ‘complex systems of “checks and balances”’ is not limited to securing such basic democratic principles;Footnote 33 given liberal democracy's ‘hostility to coercive public authority, especially when backed by large numbers of less-privileged citizens’, checks and balances deliberately constrain the power of the state and, in particular, of those institutions expressing popular sovereignty.Footnote 34 This hostility may be challenged in two ways. First, vertical accountability may be reinforced, either by subjecting bodies of the state formerly shielded from direct democratic interferences to popular elections or by strengthening mechanisms of social control ‘from below’. The aforementioned mechanisms of direct or plebiscitary democracy as well as non-conventional forms of participation (by mobilisation and in resource allocation) have such an effect. Second, the democratically elected powers of the state may be strengthened vis-à-vis the more ‘technical’ entities, thereby challenging the distribution of labour in contemporary liberal democracies in which manifold ‘unelected bodies’ take a great deal of relevant policy decisions.Footnote 35 Given the liberal emphasis on the rule of law, the most controversial issue concerns the potential (post-liberal) challenge to the view that judicial authorities are to be viewed as apolitical bodies that take technical decisions and should therefore be separated and shielded from democratic control.Footnote 36
(E) Effective power to govern: The criterion ‘that the elected representatives are the ones that factually govern’ refers to the idea of preventing ‘extra-constitutional actors not subject to democratic accountability, like the military or other powerful actors, from holding (final) decision-making power in certain policy domains’.Footnote 37 In the liberal democratic framework, however, the reach of this rather self-evident condition is fairly restrained. It explicitly does not encompass either institutions regarded as necessary to uphold the constitutional order per se (such as an independent judiciary including a constitutional court) or the aforementioned ‘unelected bodies’ whose relative autonomy is seen as functionally superior to democratic control.Footnote 38 Furthermore, liberal democracy as a political regime for capitalist societies accepts major economic decision-making power by business leaders and anonymous markets, with immediate and far-reaching implications for both democratic politics and society.Footnote 39 These limits to the effective power to rule are, of course, contested and may be challenged systematically by increasing the reach and scope of democratic decision-making both within the state and vis-à-vis society/economy. Post-liberal ways of increasing the democratic state's effective power to govern include efforts to extend the reach of democratic institutions to those parts of the state apparatus and to non-state spheres that are seen, in the liberal model, as domains of technical or private decision-making. For example, an emphasis on economic steering and active economic participation by the state may transcend the liberal notion of a market economy.Footnote 40 At the same time, the reach of democratically elected organs may also be limited in ways not envisioned by liberal democracy. For instance, the recognition of indigenous self-government by non-electoral, ‘traditional’ means implies, from the liberal democratic perspective, the establishment of ‘reserved policy domains … over which the government and parliament do not possess sufficient decision-making authority’.Footnote 41 To the extent that the state recognises autonomous spheres where, for example, indigenous community justice applies, the effective reach of the liberal rule of law is deliberately reduced.Footnote 42
Based on this overall conceptual framework, it is possible to study trends towards post-liberal democracy by analysing whether ongoing processes of political change imply challenges to liberal democracy's different boundaries in the five partial regimes without maintaining basic liberal democratic norms across the five dimensions.
Bolivia under Evo Morales: A brief overview
Following a turbulent transition to democracy, after 1985 Bolivia became a much-lauded development model that successfully followed a path of democratisation, stabilisation and neoliberal economic reform.Footnote 43 Between 2000 and 2005, however, a series of political crises erupted, characterised by massive social protests that forced the resignation of both elected president Sánchez de Lozada in 2003 and his successor Carlos Mesa in 2005. In the course of this period of recurring crises, the union leader, coca grower and head of the Movimiento al Socialismo (Movement toward Socialism, MAS) Evo Morales established himself as the leading representative of the diverse protest movements. In December 2005, Morales was elected president of Bolivia by an absolute majority of the vote, becoming the country's first head of state of indigenous origin. Since taking office, Morales has initiated a process of profound political change that includes, as core elements, a restructuring of the political system via a constituent assembly and policy changes in a series of areas, chiefly economic, social, drug and foreign policies.Footnote 44
The ‘re-founding’ of the country via a constituent assembly had been a long-standing demand of Bolivia's indigenous movements. The assembly was elected in July 2006 and finished its work in December 2007. However, the adoption of the draft constitution by a two-thirds majority of the assembly's present members, in the absence of the most important opposition groups, was heavily disputed. Especially in the eastern lowland departments, where opposition to Morales was strongest, regional autonomy movements mobilised against the government. Following nine months of political struggle, in October 2008 a two-thirds majority in Congress agreed on a detailed revision of the constitutional draft.Footnote 45 In January 2009, the new Constitution was approved in a referendum by more than 60 per cent of the population. In general elections at the end of the year, Morales was re-elected and the MAS won a two-thirds majority in the new parliament, the Asamblea Legislativa Plurinacional (Plurinational Legislative Assembly). Since 2010, a series of organic laws has been approved in order to implement the new constitutional framework.Footnote 46
In the area of economic and social policies, Morales had promised to break with neoliberalism. Correspondingly, the government significantly increased the role of the state in the economy. Following Morales’ declaration of a nationalisation of the country's gas resources in May 2006, international gas companies were forced into new contractual relationships; the control of the state, and of the state-owned gas company YPFB, in the hydrocarbon sector was strengthened; and taxes on gas companies were increased. At the same time, the government used rising revenues from hydrocarbon and mineral resources to expand social spending and public investment.Footnote 47 In addition, Morales abandoned the US-driven emphasis on coerced coca eradication and legalised coca, while continuing counter-narcotics efforts directed at drug production and trafficking.Footnote 48
A Post-Liberal Democracy in the Making
To what extent does Bolivia's new Constitution establish a framework for post-liberal democracy in that country?Footnote 49 And to what extent can we find evidence of post-liberal forms of politics under the government of Evo Morales?Footnote 50 Across the above-mentioned five dimensions, the following analysis will show that the emerging political regime in Bolivia maintains the basic norms and institutions of representative democracy while partially modifying them by adding other, heterodox or non-liberal notions of democracy, participation and governance.Footnote 51
(A) Electoral democracy and the usual representative institutions constitute the core of the new ‘plurinational state’ as conceptualised by the new Constitution. Therefore, according to the usual measures by Freedom House, Polity and Bertelsmann, Bolivia is still considered a democracy.Footnote 52 However, the Constitution regards representative democracy as only one form of government, complemented by ‘participatory’ and ‘communitarian’ democracy (Article 11/I).Footnote 53 While the latter refers to indigenous self-government (dealt with below), the former concerns the exercise of democracy in general and encompasses ‘direct and participatory’ forms such as referenda, citizens’ legislative initiatives and the revocation of mandates (Article 11/II).Footnote 54 Popular approval via referendum is required in cases of constitutional changes, the ratification of international treaties, and the establishment of departmental, regional, municipal or indigenous autonomies (Articles 411, 257–9, 274–5, 280, 294–5).Footnote 55 In general, referenda can be held at the national, departmental and municipal levels (Articles 298/II, 300/I, 302/I), and legislative initiatives of citizens must be considered in parliament (Article 162/I) – but the precise scope and the corresponding procedures of such referenda and initiatives are not specified in the Constitution.Footnote 56 Finally, recall referenda represent a new mechanism of vertical accountability or popular control, which gives voters the opportunity to revoke the mandate of all elected representatives. Only the judiciary, whose highest authorities are also elected by popular vote, is protected from revocation (Article 240).
The evolution of Bolivian politics since the election of Evo Morales in late 2005 confirms this ambivalent impact on the dimension of electoral representation. Representative institutions – the executive, Congress, Constituent Assembly and Plurinational Legislative Assembly – have clearly dominated political life, yet their relative autonomy vis-à-vis society has been limited by both formal and informal institutions of vertical accountability. Formally, major political decisions have been dependent on public approval via referendum.Footnote 57 Informally, a diverse spectrum of social groups has almost continuously put pressure on representative institutions. This has included oppositional protests by the regional autonomy movements, all kinds of mobilisation around the Constituent Assembly, pro-government protests putting pressure on parliament, and the mobilisation of former allies of Morales for particular demands or against specific political decisions.Footnote 58 Frequently, both the government and the opposition have used allied social organisations instrumentally to coerce representative institutions.Footnote 59
At the same time, since the electoral victories of Morales and the MAS in late 2005, both Bolivia's government and parliament have become considerably more representative than ever before, which has also politically strengthened these representative institutions.Footnote 60 Very generally, ‘The political inclusion of indigenous peoples improves the representational dimension of democracy.’Footnote 61 Opinion polls demonstrate that this perception is widely shared among BoliviansFootnote 62 and has led to a ‘restoration of trust in the political system’.Footnote 63
(B) The new Constitution guarantees all those political rights that mainstream conceptions of liberal democracy would expect (Articles 26–9).Footnote 64 Yet, in contrast to usual notions of representative democracy, political parties have lost their monopoly on representation.Footnote 65 Reinforcing changes in the modes of political representation already under way since the mid-1990s, indigenous organisations (organizaciones de las naciones y pueblos indígena originario campesinos)Footnote 66 and citizens’ groups (agrupaciones ciudadanas) can compete with political parties for elected public office on an equal footing (Article 209). Most notably, the Constitution modifies liberal notions of political participation in the section on ‘Participation and Social Control’ (Articles 241–2). Here, it is established that the ‘sovereign people, through organised civil society, participates in the design of public policies’. Furthermore, ‘organised civil society exercises social control’ over state administration, public enterprises and institutions. How to organise this kind of participation and social control is left up to ‘civil society’, but the Constitution stipulates that there will be a law establishing a general framework (Article 241).Footnote 67 During the Constituent Assembly, there were even demands to elevate this control by civil society (that is, by social movements) to a ‘fourth power’ of the state that ‘would stand above the classic powers’ and control them.Footnote 68 While this would have meant an open rupture with representative democracy, the new Constitution, in the end, stuck to simply amending the representative institutions with additional mechanisms of participation through mobilisation and in resource allocation that are, ultimately, under the control of parliament.Footnote 69
With a view to the practice of ‘participation and social control’, political access to government and parliament by social movements and organisations representing the popular sectors, including the indigenous movements, has increased significantly under the new government.Footnote 70 That notwithstanding, actual participation has been limited up to now. Scholars have pointed to attempts by the MAS government to co-opt civil society organisations, to monopolise decision-making in a small group of MAS leaders, to steer participation from above and to concentrate power in the person of the president.Footnote 71 Indeed, while the corresponding law has yet to be adopted by parliament, the preliminary mechanisms of participation and social control reveal a fairly top-down pattern of consultation. It is the corresponding state entity (for example, a particular ministry) that ‘summons those social organisations that it considers pertinent to a meeting with an established agenda’.Footnote 72 In general, there is increasing criticism among Bolivian social movements and left-wing critics of Morales that the MAS government, by distancing itself from its own base and concentrating ever more power in the executive, has frustrated the participatory promises enshrined in the Constitution.Footnote 73
This said, the well-known but informal practices of ‘non-electoral politics’ and ‘non-liberal channels of participation’ are still far more important than the formally institutionalised ones.Footnote 74 In the absence of effective formal channels of accountability, popular organisations within and close to the MAS hold Morales accountable by mobilising autonomously.Footnote 75 Since 2010, increasing protests by social groups and organisations that generally have been close to or allied with Morales and the MAS have demonstrated that this constitutes a real constraint and check on a government which, at the moment, has no serious contenders within the representative institutions.Footnote 76 This implies, however, that the Constitution's attempt to channel Bolivia's ‘participatory culture’ through the social control exercised by ‘organised civil society’ has yet to show results.Footnote 77 Furthermore, the informal character of much of the ‘participation and social control’ means that the relative gains in terms of collective political participation through social organisations are far from secured. Effective informal participation depends on the goodwill of the government and/or the capacity to enforce access to the government by mobilisation, and the government can use informal mechanisms of bottom-up participation as informal mechanisms of top-down control and co-optation.Footnote 78
(C) The Constitution also recognises the liberal canon of civil rights (Articles 21–5), including the right to private property (Article 56).Footnote 79 However, already the emphasis on the sovereignty of the Bolivian people which is to be exercised ‘in direct and delegated forms’ (Article 7) makes it clear that the balance between ‘the rule of the people’, on the one hand, and ‘the rule of law’ and ‘constitutionalism’, on the other,Footnote 80 is recalibrated in favour of the former.Footnote 81 Hence the Constitution can be substantially and even entirely rewritten by means of a Constituent Assembly which is convoked by referendum, elected by the people and endowed ‘with full powers’ (plenipotenciaria) (Article 411). Overall, the Constitution expands the role of majority decisions, both through extending the reach of popular elections and referenda and by increasing the number of ‘fundamental political decisions’ in parliament that are adopted by an absolute majority of the votes.Footnote 82
In the practice of political decision-making under the new Constitution, these questions – ‘rule of the people’ vs. ‘constitutionalism’ and absolute vs. two-thirds majorities – have not been too relevant. On the one hand, the MAS could count on two-thirds of the members of the new plurinational parliament; on the other, interim judges appointed by President Morales in February 2010 did not openly challenge government. It remains to be seen whether this will change with the new judicial authorities that took office in January 2012 following the contested popular elections in October 2011.
During the process of constitutional reforms itself, the government's emphasis on the majority will of the people clearly meant that respect for institutional and constitutional constraints was rather limited.Footnote 83 Hence the Bertelsmann Transformation Index notes a ‘decisive move towards derision, neglect and marginalization of representative democracy's basic institutions, mechanisms, and procedures, including the judiciary’.Footnote 84 This particularly refers to disputes between the government and the highest echelons of the judiciary, during which the latter gradually lost their capacity to act and decide in a series of resignations that were not followed by new appointments until February 2010. But even in this transitory period the MAS's emphasis on the majority will of the people did not mean openly breaking with the basic constraints of democratic institutions. Most notably, the government accepted the decision by the Electoral Court, which had demanded a law before organising the constitutional referendum, and agreed to parliamentary negotiations that, in the end, enabled a two-thirds majority in the old Congress.Footnote 85 The ‘grim forecast’ made by Fabrice Lehoucq in September 2008, that ‘Morales's supporters will accept nothing less than the enactment of a radically new constitution’, thus proved overly pessimistic; the alleged ‘breakdown of constitutional democracy’ remained a transitory constitutional crisis.Footnote 86
Another challenge to liberal conceptions in this dimension concerns the notion of citizenship. The ‘fundamental rights’ recognised by the new Constitution clearly go beyond the usual series of political and civil rights by strengthening socio-economic and collective rights.Footnote 87 The former include universal entitlements to free education and health care and access to drinking water and sewerage, electricity, cooking gas, and basic postal and telecommunication services as well as social security and retirement (Articles 16–20, 45). The latter constitute far-reaching rights for indigenous peoples in the framework of the new ‘plurinational state’. Both types of rights come with consequences for civil and political rights. Extended socio-economic rights imply that economic activities are required to play a positive social, economic and environmental role (Article 312); that the right to private property is conditional on its performing a ‘social function’ (Article 56); that land rights are limited by a ban on the latifundio which includes an upper limit of 5,000 hectares and the requirement to fulfil a ‘social-economic function’ (Article 398); and that the privatisation of basic public services – namely, the supply of water, sewage, public health and social security services – is prohibited (Article 20, 38, 45).Footnote 88 While constitutional guarantees apply, the exercise of political and civil rights is obviously constrained in the context of indigenous ‘autonomies’ which are governed not by liberal democratic norms but by customary indigenous ‘norms, institutions, authorities and procedures’ (Article 290)Footnote 89 – norms that ‘tend to privilege collective identities and interests above those of individual community members’.Footnote 90 With a view to the new plurinational parliament, the Constitution establishes special electoral districts for indigenous minorities (Article 146/VII), a positive discrimination that is crucial to guarantee a certain ethnic representation of these peoples at the national level but obviously distorts proportional representation.Footnote 91 Furthermore, the recognition of indigenous languages leads the Constitution to oblige every civil servant to speak ‘at least two official languages of the country’ (Article 234/7).Footnote 92
Particularly relevant, and contested, is the recognition of indigenous jurisdiction as a parallel system of justice on equal footing with ordinary state law (Article 179).Footnote 93 While being part of the establishment of non-electoral, communal forms of indigenous self-government that reduce the territorial and functional reach of the electoral regime (A) and, at the same time, limit the effective power of the liberal state and its institutions (E), most importantly this expansion of collective rights challenges individual civil rights. The Constitution clearly states that indigenous law has to respect ‘the right to life, the right to defence and the other rights and guarantees established by the present constitution’ (Article 190/II). Adding to these constitutional constraints,Footnote 94 the 2010 Law on Jurisdictional Delimitation explicitly limits ‘the scope of applicability of indigenous law to cases where personal, territorial and material indigenous jurisdictions are simultaneously at work’ and includes a ‘long list of legal areas over which indigenous authorities have no jurisdiction’, including corruption, rape and homicide.Footnote 95 These regulations tend to solve the most pressing liberal concernsFootnote 96 at the expense of the notion of an equal status of the two justice systems.Footnote 97 In general, however, they do not and cannot dissolve the fundamental tensions between the diverse practices of customary law and individual civil rights as defined in liberal terms. Legal pluralism challenges liberal conceptions of ‘due process of law’ and of ‘a single system of law uniformly applied to all people’; customary practices that subordinate women clash with modern gender norms of equality; physical punishments ‘may violate restrictions imposed by human rights norms’; and prioritising ‘the good of the community as a whole’ collides with the individualist conception of rights ‘in western legal and moral systems’.Footnote 98 The new Tribunal Constitucional Plurinacional (Plurinational Constitutional Court), which includes representatives of the ordinary and the indigenous justice systems, is in charge of deciding conflicts between the indigenous and ordinary jurisdictions (Articles 196–7, 202).Footnote 99
(D) The three classical branches of government (executive, legislature and judiciary) are separated, their division of labour and mutual controls institutionalised.Footnote 100 Yet, they are subject to increasing vertical control from below: in the case of the president and the new parliament, as seen, accountability by means of popular elections is broadened to include recall referenda, popular legislative initiatives and mechanisms of participation and social control. In the case of the judiciary, the top echelons of the judiciary are to be elected by popular vote as well.Footnote 101 This direct election of the highest courts, from a liberal perspective, endangers the nature of the judiciary as a rather apolitical, technical body, but proponents see it as the only way to reduce the influence of party politics on the nomination of judges.Footnote 102 Taking up the liberal concern, however, the Constitution limits this mechanism of vertical (majoritarian) control by reintroducing a ‘classic’ form of horizontal control: the national parliament pre-selects candidates by a two-thirds majority (Article 193–5). While this parliamentary pre-selection represents one of the various concessions to the opposition introduced by the old Congress in October 2008,Footnote 103 the two-thirds majority of the governing MAS in the new Plurinational Legislative Assembly meant that the opposition could not make use of this institutional control during the actual process of preparing the judicial elections and, correspondingly, criticised the selection of candidates as illegitimately politicised.Footnote 104 In general, given the overwhelming MAS majority in parliament, the legislature could not be expected to seriously control the executive, but this resulted from the broad support for the MAS and not from the new constitutional framework.
Adding to the direct democratic control of the judiciary by means of popular elections, the Constitution also increases the political influence on supposedly technical issues and bodies.Footnote 105 For instance, the Central Bank ‘loses its previous level of independence’.Footnote 106 According to the Constitution, it is the executive ‘in coordination with the Central Bank of Bolivia’ that determines the aims of monetary and exchange rate policy (Article 326/I). In addition, social control over state administration and public services adds a decidedly non-technical mechanism of oversight from below to the usual horizontal control by state institutions such as the Procuraduría General del Estado (Attorney General's Office) or the Defensoría del Pueblo (Ombudsman's Office).
(E) According to the new Constitution, the democratically elected representatives are those that are entitled to govern. There are no veto powers or reserved policy domains. Also, the diverse amendments and modifications discussed above do not imply a departure from representative democracy as in the end they all remain firmly under the control of representative institutions.Footnote 107 However, the establishment of non-electoral, communal forms of indigenous self-government that reduce the territorial and functional reach of the electoral regime clearly limit the effective power of the liberal state and its institutions. Hence there is a fear that the recognition of indigenous self-determination, autonomy and self-government could lead to ‘a gradual construction of political, parastatal and independent entities within the Bolivian state’.Footnote 108 Even if this seems exaggerated, as indigenous autonomies remain – as do departmental, regional and municipal autonomies – embedded in the overall national framework as regulated by the Constitution and the law,Footnote 109 the Constitution does imply a deliberate decision to grant particular indigenous communities the right to reserved domains governed not necessarily in accordance with principles of representative democracy and the liberal rule of law. The ongoing, selective and contradictory process of implementing indigenous autonomies evidences both institutional constraints and substantial progress.Footnote 110
Furthermore, when compared to mainstream standards of liberal democracy, the Constitution does not merely increase the importance of plebiscitary mechanisms and elected institutions within the state, but also expands the democratic state's overall role in the economy. Under the new constitutional framework, neither the market economy nor private property rights are abolished, but they are qualified and become part of a plural economy which is to include ‘communitarian, state, private and social cooperative’ forms of economic organisation (Article 306). These constitutional changes confirm and reinforce the turning away from neoliberal economic policies that has been pushed by the Morales government. Since assuming power, the MAS has ‘substantially reworked the relation between the state and market, making the state once again a primary actor in economic development’.Footnote 111 Public investment has increased, as has the state's control of strategic sectors (hydrocarbons, mining, electricity and infrastructure) and the overall number of state-owned enterprises.Footnote 112
Alternative Conceptual Frameworks
To summarise, the post-liberal democracy framework leads us to see contemporary political change in Bolivia as a transformation of democracy that implies a complex rebalancing of democratic norms, priorities and mechanisms. If we analyse liberal democracy as a specific way of blending the contradictory democratic principles – sovereignty of the people vs. constitutionalism, majority rule vs. protection of minorities, real political equality vs. formal equality and individual freedom, representation vs. direct participation, individual equality vs. recognition of cultural differencesFootnote 113 – then the search for post-liberal democracy can be interpreted as a process of readjusting and rebalancing these principles by strengthening the plebiscitary and participatory aspects of democracy as well as the economic, social and cultural dimensions of human rights. In this sense, the notion of a post-liberal democracy does indeed grasp the main patterns of these changes: the continuity of basic procedures and institutions of representative democracy combined with significant changes across the different liberal ‘qualifiers’ usually attached to liberal democracy that imply a deviation from the mainstream liberal democratic model. As will be argued in this section, such a perspective seems indeed better equipped than alternative frameworks to help us make sense of contemporary Bolivia's emerging political regime.
Probably the most prominent alternative lens is populism.Footnote 114 An analytical perspective on populism that avoids simplistic and highly normative readings of populism as either ‘a pathological political phenomenon’ or ‘the most authentic form of political representation’,Footnote 115 and instead highlights ‘the uneasy and ambiguous relations between populism and liberal democracy’,Footnote 116 is well in line with the above observations. The Morales government has mobilised and politically incorporated segments of society that have traditionally been marginalised.Footnote 117 But in doing so, Morales and the MAS have systematically relied upon a ‘claim to embody the people’, on an expression of ‘the people's will’ outside institutional channels and on ‘plebiscitary acclamation’. Thus, ‘populist understandings of democracy as mass rallies and occupations of public spaces’ are clearly important in contemporary Bolivia.Footnote 118
Yet populism grasps only part of the patterns of what is here called an emerging post-liberal democracy in Bolivia; it misses some elements, and misrepresents others. First, there is clearly a certain anti-institutional bias in the rhetoric and practice of the Morales government and the MAS, but the process of constitutional reform was fundamentally institutionalist in its overall orientation.Footnote 119 While political participation by mobilisation and pressure on the street is a traditional phenomenon in Bolivian politics,Footnote 120 formally recognising plebiscitary and participatory mechanisms such as the ‘revocation of mandates’ or ‘participation and social control’ is a step towards institutionalising such informal phenomena as the protest-driven toppling of elected presidents and the direct negotiation between protestors and government. In addition, these new mechanisms are embedded in a predominantly representative regime.
Second, there is, in part, a dichotomous world view that contrasts the good people with the bad old elites, but neither the Constitution nor government rhetoric describes ‘the people’ as a unified entity. The notion of a fundamentally plural society is the very basis of the ‘plurinational state’.Footnote 121 Third, while ‘[p]opulist personalization is based on an extreme personalization of politics’, the importance of Evo Morales for the whole process of transformation does not imply that Bolivian politics can be reduced to him and him alone.Footnote 122 Both in conception and in practice, the self-proclaimed ‘government of the social movements’ is characterised by a broad spectrum of relatively autonomous social organisations that do not simply obey the leader but rather mobilise, negotiate and, if need be, openly fight for what they regard as their legitimate entitlements.Footnote 123 Contemporary Bolivia is clearly not a case of populist-type controlled inclusion and top-down mobilisation.
In sum, while we may characterise part of the style of politics employed by Morales as populist, it would clearly be misleading analytically to call the emerging political regime one of ‘radical populism’ or ‘populist democracy’. The same argument applies to attempts to categorise Bolivia as an emerging ‘participatory’ or ‘radical democracy’. In line with such visions of democratic change,Footnote 124 political change in Bolivia encompasses attempts to deepen democracy by adding participatory mechanisms to representative democracy. Yet, as Boaventura de Sousa Santos’ notion of ‘demo-diversity’ makes clear, new mechanisms of participation constitute but one dimension in a complex articulation of different forms and conceptions of democracy.Footnote 125 Furthermore, as seen above, the importance and place of ‘participatory democracy’ in this overall setting is far from settled. Non-liberal mechanisms of direct and collective participation remain, so far, largely informal and are vulnerable to being instrumentalised by the government.
Another alternative conceptual framework would draw on the well-known strategy of defining what ‘real’ democracy ought to look like in order to then build diminished sub-types.Footnote 126 In this sense, Bolivia has been characterised as ‘a defective – illiberal and also delegative – democracy’.Footnote 127 This particularly refers to violations of the rule of law and the separation of powers during the process of constitutional reforms. The features that define illiberal and delegative democracy – limited ‘binding impact’ of the rule of law on state actions and limited control of the government by the legislature and the judiciary – can be observed in contemporary Bolivia.Footnote 128 However, there are two crucial differences between the concept of ‘defective’ democracy and the post-liberal democracy framework developed above.
First, the notion of ‘defective democracies’ implies an explicit normative assessment: any deviation from liberal democratic principles is a flaw that needs correction. In addition, this leaves no conceptual room for assessing those dimensions of political change that may include advances towards more democracy, even if departing from the liberal democratic framework.Footnote 129 Second, this analytical perspective is based on a linear and ultimately teleological conception of political development. Dramatic changes in the shape of the political regime notwithstanding, Bolivia in both 2002 and 2008 was categorised as an illiberal democracy.Footnote 130 Thus, the illiberal and delegative facets of Bolivian democracy appear simply as continuity,Footnote 131 signalling a failure to overcome ‘the practices of the past’.Footnote 132 This, again, may capture part of the story, but it loses sight of the fact that deviation from liberal principles can take quite different forms: it can consist in the perpetuation of authoritarian/illiberal legacies, in political innovations that challenge liberal qualifiers of democracy or, as in Bolivia, in complex combinations of both. The premise that the only democratic alternatives to ‘diminished sub-types’ are ‘consolidated liberal democracies‘Footnote 133 misses the contested nature of democracy that is clearly evidenced by contemporary political changes in BoliviaFootnote 134 and, more broadly, in Latin America.Footnote 135
Conclusion
Bolivia's political regime, as provided for by the new Constitution, is clearly democratic. It does not represent a break with liberal democracy, yet it does contain a series of elements that challenge and, in part, replace some of the substantial qualifiers usually attached to liberal democracy. In particular, expanded notions of political participation, vertical accountability and citizenship/human rights, while part of an overall constitutional framework that is dominated by representative institutions and preserves basic liberal rights, go beyond the liberal focus on electoral participation, horizontal accountability and civil and political citizenship/human rights. Even at the level of the constitutional text, however, this is only part of the story. Most notably, the Constitution's emphasis on popular participation and social control is countered by the adherence to a ‘strongly presidentialist’ system.Footnote 136 When looking at the actual patterns of Bolivian politics under Morales, such contradictions multiply. As we have seen, the promises of participatory innovation have yet to be realised; besides elections and referenda, actual participation by popular organisations remains largely informal and is shaped, at least in part, by attempts to co-opt and control social movements from above. At the same time, horizontal accountability continues to be weak. The result is a concentration of political power in the government, even if important formal and informal checks on executive power exist.
In general, there can be no doubt that serious discrepancies exist between the constitutional text and political reality. Given the far-reaching changes implied by Bolivia's Constitution, this general observation is almost self-evident. Yet, an important question both for the general debate about post-liberal democracy and for the particular future of Bolivian democracy concerns the nature of these discrepancies.Footnote 137 Are they transitory phenomena that are due to the incomplete implementation of the new Constitution? Do they represent contingent political practices that may be entrenched features of Bolivia's political culture or specific idiosyncrasies of the Morales government, but that are independent from the specific shape of the Constitution? Or are they intrinsic attributes of the post-liberal democracy as outlined by the Constitution?
Some of the issues raised in the empirical analysis above belong in the first and the second category, but not in the third. For example, the judiciary in Bolivia is traditionally weak and politicised and, for a certain time during the process of constitutional transition, the highest judicial authorities were largely suspended. In general, however, there is no reason why a system in which the population elects its highest judges following a pre-selection by parliament (with a two-thirds majority) should undermine judicial independence and/or increase the politicisation of the judiciary. As regards the new mechanisms of ‘participation and social control’, the wording in the Constitution is vague, and it will generally be difficult to find a working balance between the contradictory principles of direct participation and indirect representation. But the current problems discussed above are obviously due to a combination of pending regulation, persistent political practices that preceded Morales and a political strategy on the part of the MAS government.Footnote 138 Many of the difficulties in implementing a plurinational state that really respects indigenous rights as guaranteed in the new Constitution can be plausibly attributed to the fact that this task cannot be expected to be completed in a few years given the entrenched institutional and habitual features of the post-colonial state which continue also in the Constitution.Footnote 139 In addition, the political will of the Morales government in this area is also increasingly questioned.
With a view to the concentration of power in the executive, however, the situation is different. While this problem is also far from new, the post-liberal setting established by the new Constitution does contain particular features that facilitate its continuity, if not intensification. As noted, the executive is now more constrained by plebiscitary mechanisms of vertical accountability than by the classic liberal mechanisms of horizontal accountability, although the latter generally remain in place. This means that as long as a president can count on majority support, he or she will be extraordinarily strong vis-à-vis the other branches of government and the opposition in particular. The broadening of plebiscitary mechanisms deliberately constrains the relative autonomy of representative institutions, favours majorities and facilitates populist-style governing that relies on directly appealing to the people. At the same time, the president in Bolivia's new constitutional setting is much more dependent on securing continuous popular support, and Bolivian society is far too organised autonomously to be simply controlled from above. The tension between popular participation and a centralising presidentialism is, in this sense, a systematic feature of post-liberal democracy as it is emerging in Bolivia. How this tension will play out, however, is not pre-defined but the result of shifting correlations of social forces.
This article has presented a conceptual framework that enables a systematic analysis of processes of political change towards post-liberal democracy. The Bolivia case study demonstrates that this framework is indeed analytically useful and that we do find evidence that points to an emerging post-liberal democracy in this country. To be sure, Bolivia is a very particular case and even here the analysis has revealed a series of limits to post-liberal innovations. In this sense, broader comparative work is clearly needed in order to answer the question about the extent to which different kinds of post-liberal democracy are emerging as alternatives to liberal democracy in Latin America. This, furthermore, is obviously related to another, equally unanswered question that has not been dealt with here – namely, the debate about contemporary changes in economic policies in Latin America and whether we are witnessing the emergence of post-neoliberal models of development.Footnote 140
In any case, these are all largely descriptive questions. Once we have more systematic empirical knowledge about the different shapes of post-(neo)liberal changes, a logical next step would be to look into the causes behind these changes: what explains the common features and dynamics across countries as well as the differences between them? When trying to account for the relatively strong trend towards, and the specific shape of, post-liberal democracy in Bolivia, likely candidates for such an explanation include: the extraordinary strength of grassroots mobilisation and the traditionally strong and diverse trade unions at the level of actors; the extent to which large parts of the population are shaped by indigenous identities and the legacy of the 1952 revolution at the level of ideas; and the political reforms of the 1990s that deepened decentralisation and popular participation and the role of the hydrocarbon sector in the economy at the level of political and economic opportunity structures.
The appeal of the post-liberal democracy framework is that it enables us to assess processes of democratic transformation without ‘interpreting them through worn out categories’ or ‘imputing to them utopias that might be far from the desires and actions of the main actors involved’.Footnote 141 Alternative concepts such as populism or defective democracy do the former, whilst notions of radical or participatory democracy tend towards the latter. Post-liberal democracy, in this sense, helps us avoid a narrow, linear perspective that judges political regimes only in terms of their ‘defects’ and ‘deficits’ as defined by a fixed and uniform understanding of what liberal democracy should look like. At the same time, it refrains from defining in substantial terms such a post-liberal alternative. By drawing on the Bolivian experience, this article has argued that such openness is analytically useful for assessing transformations of democracy given the contradictory, contested and uncertain character of such processes of political change. As I have argued, Bolivia's new Constitution does not establish a specific post-liberal democracy, but constitutes only a general politico-institutional framework and an important normative reference that structures the ongoing struggle to construct some kind of post-liberal democracy in the country.
