A Crisis of Legitimacy: Lessons from the U.S. and Ukraine on Inequality, Polarization and Crumbling Institutions

At the same time that the United States is struggling to resist the crumbling of its institutions in the face of polarization and populism, Ukraine struggles to move beyond corruption and foreign domination—including corruption in which wealthy Americans have participated. In some respects, the two countries appear to be converging. Northwestern University Professor of Law Paul Gowder joined Dmytro Vovk, Professor of Law and Director of the Center for the Rule of Law and Religion Studies at Yaroslav Mudryi National Law University, to discuss what each country can learn from the other in a Northwestern Buffett Institute for Global Affairs webinar on “Crumbling Institutions: The Erosion of Democracy in the U.S. and Lessons from Ukraine.”  Here are four key takeaways from the discussion:
 

The underlying source of political tension and polarization in the United States is the level of inequality: Trump is a symptom rather than the cause of the current breakdown in the American political order. “The root cause of political polarization in the United States is the growing level of inequality and not just economic inequality, but also racial and geographic inequality,” Gowder said. These inequalities often coincide with institutional and democratic decline, which “undermine the commitment of the poor and powerless to the overall system, and allow the rich and powerful to reinforce their position at the expense of others.” This leads to a hierarchical, competitive society with divergent group interests, perpetuating polarized perceptions and attitudes.

Polarization leads to political and constitutional hardball.  As we see today, “political actors are increasingly willing to push up against the limits of the political system in order to fight one another, effectively destroying the capacity for peaceful problem-solving or maintaining the independence of law from politics,” Gowder says. This plays out in a variety of different scenarios, including court-packing proposals, gerrymandering and voter suppression. The root problem does not stem from “a lawless person who happens to occupy the White House, but rather from the inequalities and polarization which motives people to endorse dangerous ideas,” Gowder says.

The political weaponization of our institutions we see today shares important similarities with Ukraine. In the aftermath of the Soviet Union, the expectation was that Ukraine would follow a gradual but steady transition into a liberal democratic state. Yet the legacy of its Soviet legal system, which defined “human rights” as a privilege gained through political loyalty, has endured. This effectively has meant that “at any moment, the state could ignore any legal procedure or principle when it came to certain individuals or social or ethnic groups outside of the norm,” Vovk said.

Today’s Ukraine has a politicized legal system and “the lack of separation between the legal system and the country’s political practices results in corruption and the degradation of the rule of law,” Vovk said. These conditions undermine key legal principles, institutions and procedures, such as independent judiciaries, constitutional justice and gender equality. Still, Vovk offers reason for hope. “Every day, civil society works hard to achieve some progress in the fight against corruption in Ukraine,” he said.

There are important lessons that the United States can learn from the situation in Ukraine.  “There is always a threat to the rule of law whenever the relative autonomy of a legal system is compromised by the influence of political actors,” Vovk said. Legal systems that are subordinated to political actors can easily be influenced to undermine the legitimacy of the law. In such scenarios “intended checks on power can actually be manipulated to reinforce unchecked power,” Gowder said. Vovk argues avoiding such scenarios depends on a legal system promoted and understood as completely separate from political influence.
 

This webinar is part of Northwestern Buffett’s "Building Sustainable Futures: Global Challenges and Possibilities" webinar series. The series will focus on a different United Nations Sustainable Development Goal (UN SDG) each quarter, beginning with UN SDG #16: Peace, Justice, and Strong Institutions—an examination of how existing infrastructures uphold and promote violence, and what we can do to build more effective, accountable institutions.