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An interview with professor Samuel Issacharoff


Samuel Issacharoff is a Constitutional law professor at NYU School of Law. His wide-ranging research deals with issues in civil procedure, constitutional law, particularly with regard to voting rights and electoral systems. Numerous articles he wrote helped to establish the law of political process, a new field of study which mainly examines the relationship between democratic principles and the electoral participation of racial, language, and political minorities. Eudaimonia’s editorial board brought this interview after Issacharoff’s great keynote lecture delivered at the International Conference New Politics of Decisionism, which was organised by the Serbian Association for Legal and Social Philosophy and the Faculty of Law in Belgrade. The main issues we’ve addressed in this interview are Issacharoff’s latest book Fragile Democracies: Contested Power in the Era of Constitutional Courts and the decline of democratic institutions that we are witnessing today in the Balkans, but in the Western democracies as well.


EUDAIMONIA: If someone goes through your biography, one immediately becomes aware that you are a legal theorist as much as a legal practicioner. In your judgement, how did it affect your scholarship?

SAMUEL: I went to law school wanting to practice law, and only after leaving a doctoral program in history.  The U.S. system of different tracks for post-undergraduate education made me choose a professional track rather than an academic one.  Once in law school, I was drawn back to the academic track.  But I did practice law before beginning to teach.

The effect has been to reinforce the institutional orientation of my scholarship.  I am more focused on how private and public institutions function than on more abstract issues of justice or equality posed at a higher level of theoretical inquiry.


In your keynote lecture delivered at the International Conference New Politics of Decisionism you stated that even mature democracies of the West are vulnerable to threats that are commonly believed to prevent young democracies on their path to full democratization. However, you also insisted upon a claim that these Western democracies are being in a better position due to them having previously developed strong democratic institutions. Given your enormous experience as a constitutional and comparative lawyer, we wondered if you could tell us something about the process of building democratic institutions. This question is of paramount importance for both Serbia and its neighbours. 

The more I study history, the more I am persuaded that there is a contingent element of time, place and fortune that either helps institutions develop or not.  It is fascinating to read the framers of the American Republic debating forms of democratic governance without historical precedents to guide them.  But for all the debate, it is hard to believe that the early phases would have been consolidated without the presence of George Washington, a decisive leader without monarchical ambitions.  Similarly, in South Africa, a fraught compromise between the apartheid leaders and the insurrection stabilized only through the person of Nelson Mandela – and then faded after his time in office.

De Toqueville in his American journals wisely noted that the success of the American experiment would depend on the capacity to make reversible mistakes.  That in turn would require a breathing space in which time allowed learning and healing.

The experience of the Balkans through the 20th century unfortunately yields little confidence that there is time for institutions to settle, for the populace to learn the habits of political discourse, and for the confidence that each conflict is not a life-or-death blood struggle.  It is hard to have confidence that the Serbian Washington or Mandela has appeared on the post-1989 historic scene.  The greatest recent period of stability and development was during the Tito years, but that did not lead to a democratic transition but to years of conflict under the leadership of the militaries and security services of the former Yugoslavia.

It would be cavalier to simply say that fortune and history have not yet smiled.  But I think that the efforts of the more enlightened elements of the political classes to build institutions and not individual empires will be the key to the future.  If Europe passes through its populist upheavals, if the western economies stabilize, and if European integration is meaningful, then some of the institutional pressures may slacken.  For all the traumas over divisions in Belgium and Spain, for example, being part of the broader European experiment allowed stability and economic recovery to occur despite the inability to form a ruling coalition.  The EU prospects may offer both economic amerlioration and political stability in Serbia.  One may hope.


In the very same lecture you also stressed out the importance of the democratic sense of solidarity that is in your view lacking in most, if not all, Western democracies. Can you tell us something about solidarity among European nations and its relationship with the ongoing crisis in the EU?

I use solidarity as a shorthand for the sense of collective commitment that underlies democracies.  Any system that ultimately relies on electoral choice anticipates that there will always be winners and losers at each moment of selection.  The key to democracy is the extended time horizon that allows the losers of today to anticipate the prospect of winning tomorrow, and that humbles the winners into realizing that they may be on the losing side looking up tomorrow.

That sense of collective enterprise requires a sense that the society is protecting those at the bottom with a sense of security.  Not everyone will be a millionaire, but democracies require some sense that there is a cushion, that the benefits of the society will be available at some level for all.  When that fails, confidence and solidarity wane.  When that fails for long periods of time, the political stage is filled with apocalyptic demagogues.

The World Bank has studied income distribution around the world for some time.  Notably in the 20 years prior to the financial meltdown of 2008, the real income of the laboring classes had been falling, even while the global performance of relieving human misery had vastly improved.   But the benefits left vulnerable losers and that is the source of the current unease.  In the U.S., we are now facing a second successive generation where the children will not match the achievement levels of the parents.  In Europe the same patterns prevail in the former industrial stretches of Northern England, Northern France and any number of areas where globalization and technological advance have shuttered the great industries of the 19th and 20th centuries.  That is then coupled with the onslaught of immigration that changes the demography of Europe and the U.S.  The combination of declining living standards and the fear of the other drove the polularity of President Trump in what is termed the rustbelt of the U.S., the pull of Brexit in the British midlands, and the surge of the National Front in France.


According to a recent survey, young people in Serbia are becoming more and more critical towards democracy. In particular, results showed that about 32% of young adults do not consider democracy to be the best form of government. Do you see similar trends in other countries?

Yes.  When institutions fail to deliver, they lose their capacity to command respect.  Young adults are by definition young and they have a greater sense of immediacy about judgments of institutional failure.  But democracies have to deliver not only the ability to vote in elections, but a return to the society in terms of capable leadership and economic stewardship.  To this day it appears that much of the infrastructure of Serbia dates from non-democratic times.  This is in part a product of the devastating war periods that followed the Tito era.  But it is also the failure of democratic accountability for the delivery of public goods.  The risk of a collapse into clientelist strong-party or strong-man governance is a risk of our time.  Just saying that one can vote does not by itself inspire much confidence.


In Fragile Democracies you said that separatist movements are commonly thought to constitute a threat to democracy. Given the rise of separatist voices in Europe, how would you define the scope of the problem that separatism poses before the EU in general and member countries with strong separatist movements in particular?

My sense is that there are still strong regional identifications that push for national separation.  Certainly we are all watching with a sense of wonder and dread the developments in Catalonia.  Similar pressures exist in Scotland and other parts of the more established European democracies.  At the same time, these do not appear to have the capacity for violent upheavals that characterized the IRA or ETA struggles of a generation ago.  In most of these countries, regional accommodation is more a matter of devolution, language rights, and dignitary concerns, but not an existential war over existence.  To a large extent, the fact of European integration takes much of the pressure off of these issues.  And the presence of the ECHR and other European institutions limits the fear of human rights abuses by the central government.

One canot extend the same confidence to the outer reaches of the European project.  Moldova or Bulgaria have significant minorities who have not yet realized the benefits of the post-Soviet period.  The Russian minorities in the Baltics represent a complicated case of a population that arrived with Soviet troops but now know no other home.  And the Balkans will hopefully stabilize, but that is a longstanding historic project that has been tragically forestalled too many times.