Particularities in the challenge to the rule of law in Eastern Europe

Preface

Thirty years since the fall of the Berlin Wall, a certain disillusionment has emerged about the integration of Eastern European states into the European Union. This is the case both for states that have already joined and for those on the cusp of joining. Poland and Hungary are notorious for failing to live up to the liberal values demanded by the EU, but they are not the only ones in the region at risk of backsliding. The tendency varies across contexts, but transitioning countries appear to be more at risk of corruption, illiberalism, and attacks on checks and balances. In order to investigate this phenomenon in a broader context, Dorothee Bohle (SPS), Gábor Halmai (Law) and Tom Junes (History) created an interdisciplinary course open for researchers of all departments in the spring of 2020 that dealt with themes on political and economic transition, populism, constitutional backsliding and memory politics. Literature in the field from the perspectives of law, history and social sciences introduced a selection of terminology to aid in the analysis of what is ailing the former communist states in Europe.  While these concepts are valuable for sensemaking, they also overlap and may be overstretched to cover too broad a section of political life to remain useful. This post will introduce a selection of the definitions on populism, backlashing and backsliding that were touched upon in the course, in order to create a conceptualization that will more easily allow us to define the nature of the beast we’re looking for.

Introduction

 “… we must not suffer from a Cinderella complex…: That there exists a shoe—the word ‘populism’—for which somewhere there must exist a foot.”[1]

Intuitively, the policies and rhetoric of Orbán, Kaczynski, Dragnea, Gruevski and Dodik have something in common. Determining exactly what it is, however, has proven somewhat more difficult. Moreover what, if anything, differentiates it from the rhetoric and policies of Salvini, Johnson, Trump, Le Pen, and Wilders? Contemporary literature offers a plethora of definitions and conceptualizations on populism, backsliding, and backlashing to explain what we are currently encountering in the post-communist European states. This post will analyze differences and similarities in prevalent definitions; first related to populism and hereafter in explanations related to constitutionalism and the rule of law. Finally, it will tackle the issue of whether the Eastern European phenomenon is a different one from the varieties one might expect to find in the rest of the world. This exercise is an important one because without a clear definition of the beast we’re hunting, it will be very difficult to know how to bring it down.

Populisms

Several contemporary writers describe the phenomenon as a form of populism. Ben Stanley differentiates between populism as a political style and as an ideology. He argues that conceiving it as an ideology (however ‘thin’) lends more explanatory power in the case of Central and Eastern Europe than viewing it as a style; while politicians from all ideologies may take on the populist style on occasion, viewing populism as an ideology should tell us more about the inner workings of these regimes.[2]

Describing the concept as ‘thin’ is a reference to Mudde and Kaltwasser’s oft-cited description of populism as a “thin-centered ideology that considers society to be ultimately separated in two homogeneous and antagonistic camps, ‘the pure people’ and the ‘corrupt elite,’ and which argues that politics should be an expression of the ‘volonté générale’ (general will) of the people.”[3] Stanley’s argument is that an ideology is a way of simplifying the complexities of the political world into a shared set of understandings about how society operates and how it ought to operate.[4] In the case of ‘thick’ ideologies such as Marxism, Liberalism or Conservatism, there are fully fledged conceptualizations of the actual and ideal structures of society. On the other hand, a ‘thin’ ideology may deal only with a single issue or may have clear notions about certain problems within society (for example corruption)[5] but no ideal to strive for. On the other side of this coin would be the conception of populism as a style or a social imaginary with a specific aesthetic,[6] allowing for analyses of the visual and rhetorical devices utilized to rally support.

Within the conception of populism as an ideology, the literature differentiates between different types. Stanley maps radical and centrist populism, concepts tied to the establishment of stable party-political structures. Other writers differentiate between left- and rightwing populism[7] or true/good, false/bad, and autocratic populism.[8] Meanwhile, Havlík and Voda link populism to voting strategies. Their argument is that the empty-heartedness of populism, the fact that populist parties do not have thick ideologies of values and issues, means that they ride the tide of conceived or actual incompetence of established parties. By doing this, they can gain votes through valence-strategies, arguing that they have greater competence than established politicians, often through a rhetoric of running the country like a business.[9] An issue with this way of viewing the phenomenon is that not all populists are outsiders; Orbán, Dodik, and Vučić alike started out as pro-European moderates and reformers.

The benefit of this extensive framework on types of populism is that we can identify tendencies in many different contexts, and often early on. The drawback is that there is little clarity about exactly what we are looking for, and thus much disagreement about what constitutes populism and what does not. Moreover, the terminology has already entered everyday use and is highly contested politically. There is thus a risk that the term becomes either all-encompassing or too exclusive. Either would render it all but useless. If we take Eiermann and Mounk’s (2017) data as an example (since they are conveniently transparent), the parties they decided to include or not to include as populist are highly contestable. The Italian 5-star movement is for example not listed (in the authors’ explanation because the party refused to define itself as left- or rightwing, but that is hardly an excuse as their study includes both), but neither is the Romanian social democrats despite their rhetoric on the need to protect the country against a corrupt (judicial) elite. The contestability of these decisions in the data-collection phase makes it difficult to trust the quantitative results reached through analyzing the data, including analyses building on that data, such as Sierakowski 2018.[10] The highly politicized nature of this field makes such inconsistencies and obscurities particularly problematic. The subjects of our studies, the populist parties themselves, have abundantly good reason and plenty of resources to attack scholarship labelling them as populists.

Constitutionalisms and conceptions of democracy

Another way of defining the problem deals with how different groups conceive democracy. Mudde and Kaltwasser’s reference to Rousseau’s volonté générale deals with this aspect, suggesting that the salient issue is in fact populism’s conception of democracy as the rule of the majority rather than a constitutional system build on the rule of law and constrained by certain rights, checks and balances. The regimes in question often have complicated relationships with constitutions, since one the one hand constitutions reel in the power of the executive, while on the other, regimes that change the constitutions in their favor can use them to consolidate power.[11] This has raised the question about whether there can be said to be such a thing as a populist constitutional theory; grounded either in political constitutionalism, which emphasizes the responsibility of elected bodies to preserve the constitution rather than judicial bodies, or in popular constitutionalism which emphasizes inclusion of the electorate though direct democracy approaches. Halmai argues that there can be no such a thing as populist constitutionalism since the very thesis of constitutionalism is separation of powers, and neither the Polish nor the Hungarian regimes allow any degree of that.[12]

This also touches upon the question of whether this way of ruling is compatible with democracy. Populists both in Eastern Europe and elsewhere have argued that their way of ruling is more democratic than traditional constitutional democracy since the power remains with the elected representatives. Hungarian prime minister Viktor Orbán has coined this through terming his rule ‘illiberal democracy’.[13] Sadurski argues, however, that illiberal democracy is an oxymoron beyond the first term since the rights, freedoms and checks that ensure free and fair elections are exactly what the illiberal regimes erode.[14] ‘

A better definition of the beast we are studying might be Pech and Scheppele’s understanding of the strategy as a simple power grab in eight easy steps,[15] though they use the terminology on backsliding for their analysis. Backsliding as a term is somewhat problematic because it assumes a previous progress that may or may not have existed, and it neglects the agency of the power grabbers. Backlashing carries similar problems in that it assumes that there must have been an initial injustice that the regimes are fighting back against. This lends too much legitimacy to populist regimes, which are experts at creating their own crises. Another useful term is Levitski and Way’s ‘competitive authoritarianism’,[16] different from traditional authoritarianism because it still must rely on winning elections – which remain free though hardly fair due to the incumbent’s control of the press and imposed limitations on democratic freedoms. An issue with this term is that it may be great for describing the result of the power grab, but it says very little about the methods used to get there.

The ‘Easterness’ of the beast

Populist rhetoric appears to be everywhere, so how do we ensure that our regionally focused analyses will not suffer some form of orientalism? What differentiates the securitizing speech and reductionist understandings of democracy touted from Hungary and Poland from those we see around the world – apart from the fact that they appear to be more successful at dismantling constitutional defenses than their western counterparts? And what makes it possible for these regimes to prefect their power grabs in precisely these countries?

One explanation might be related to the narratives populists in Eastern Europe can make use of in their rhetoric. Krastev points to the concept of imitation of the west.[17] This plays on feelings of inadequacy and humiliation, which we know from literature on the psychology of conflict, are among the most volatile and useful emotions for conflict escalation.[18] Another useful theme is disillusionment and disappointment. Pech and Scheppele point out that for their first electoral victories, power grabbers usually play on a real or perceived problem in society escalated to a point, where the electorate lose faith in ‘regular politicians’ and seek out the valence of a radically different or new option in the form of these populists.[19] This is also why even the most established of populist parties tend to create narratives of themselves as outsiders. A disappointed dream of the west after the fall of communism might be part of an explanation for why these power grabs have been more successful in Eastern Europe.[20] General allusions to security and rhetoric that plays on a fear of displacement from cosmopolitanism or flows of migration are not unique to the Eastern European states and may thus contribute to the question of when, but hardly of where these populists surge to power.[21]

Other explanations relate to constitutional insurances, suggesting that whereas populist leaders all over the world may want to dismantle checks and balances in order to concentrate power in their branch of government, constitutional traditions both soft and hard may be preventing it. The reasoning being that recent transitions and different traditions on constitutional change[22] combined with a lack of consolidated civic culture in Eastern Europe make these states more vulnerable. Comparative studies of similar regimes in Hungary, Poland and Romania with very different results suggest that there may be some truth to this. In Romania, the power grab by Dragnea’s social democrats failed for the most part when it was struck down in the courts, while in Hungary the FIDEZ government with their two thirds majority could legally change the constitution and electoral laws to consolidate their power. Slightly simplified, this also made it more difficult for the EU to intervene in Hungary than in Poland where the power grab had to be done extra-legally.[23] There may however also be other factors with more explanatory power for these differences, including European level party politics which Kelemen favors; and finally despite a stronger legal response to Poland than to Hungary, the EU has actually had little impact on the ongoing power grab, so the difference may not be so great after all.

Conclusions

So, what rough beast slouches towards Brussels to make constitutional checks and balances unfashionable? This paper argues that while populism seems prevalent everywhere, ‘power grabbing’ is perhaps the best adjective for the specific brand of populist/rule of law backsliding/competitive authoritarian regimes we’ve encountered in certain Eastern European states in recent years. The benefit of this terminology is that we can divide our analyses into methods for and results of power grabbing. Thus we can ascertain tendencies in the use of methods without claiming that the power grabbing result has already occurred.[24] This also allows for a framework to emerge that can realize the specific vulnerabilities to these methods in post-communist states, without arguing in an orientalist fashion that the rhetoric or power grabbing attempts are all that different in the East than in the West.

The methods presented by Scheppele and Pech[25] include rhetoric to establish legitimacy followed by strategic placing of allies on other public offices, and the strategic dismantling of rights, checks, and liberal democracy. This may show itself as nationalist rhetoric filled with securitizing language on the danger of immigration or cosmopolitanism; or it may be populist rhetoric on the protection of the true people against the corrupt elite (whether a right wing or a left wing version of this elite), or a Babiš-style valence argument for running the state like a business, eliminating checks and balances with the purpose of ‘getting things done’.[26] The state in question and its particular context, including for example a post-communist or recent history of violent conflict, will naturally impact what kind of rhetoric will be useful. Similarly, the methods for and ease of placing allies in key positions and dismantling checks, including but not limited to changing the constitution, will depend on the context and the rules and traditions in place.

[1] Isaiah Berlin, To Define Populism, in The Isaiah Berlin Virtual Library 6 (1968) IN: Gábor Halmai, “Populism, Authoritarianism and Constitutionalism,” German Law Journal 20, no. 3 (2019): 296.

[2] Ben Stanley, “Populism in Central and Eastern Europe,” in The Oxford Handbook of Populism, ed. Rovira  Kaltwasser Cristóbal, et al. (Oxford: Oxford University Press, 2017), 141.

[3] Cas Mudde and Rovira Cristóbal Kaltwasser, Populism : A Very Short Introduction (2017), 6.

[4] Stanley, “Populism in Central and Eastern Europe,” 142.

[5] Vlastimil Havlík and Petr Voda, “Cleavages, Protest or Voting for Hope? The Rise of Centrist Populist Parties in the Czech Republic,” Swiss Political Science Review 24, no. 2 (2018): 166.

[6] Christoffer Kølvraa and Bernhard Forchtner, “Cultural Imaginaries of the Extreme Right: An Introduction,” Patterns of Prejudice 53, no. 3 (2019).

[7] M. Eiermann, Y. Mounk, and L Gultchin, “European Populism: Trends, Threats and Future Prospects,” Blair Institute, https://institute.global/insight/renewing-centre/european-populism-trends-threats-and-future-prospects.

[8] Halmai, “Populism, Authoritarianism and Constitutionalism.”

[9] Havlík and Voda, “Cleavages, Protest or Voting for Hope? The Rise of Centrist Populist Parties in the Czech Republic,” 164-67; Seán Hanley and Milada Anna Vachudova, “Understanding the Illiberal Turn: Democratic Backsliding in the Czech Republic,” East European Politics 34, no. 3 (2018).

[10] Slawomir Sierakowski to The Strategist, 2 February 2018, 2018, https://www.aspistrategist.org.au/eastern-european-populism-different/.

[11] Kim Lane  Scheppele and Laurent Pech to Verfassungsblog, 2018/3/02, 2018, https://verfassungsblog.de/what-is-rule-of-law-backsliding/; Halmai, “Populism, Authoritarianism and Constitutionalism,” 302.

[12] “Populism, Authoritarianism and Constitutionalism,” 302-06.

[13] Csaba Tóth, “Viktor Orbán’s Speech at Băile Tuşnad (Tusnádfürdő) of 26 July 2014,” The Budapest Beacon 2014.

[14] Wojciech Sadurski and Press Oxford University, Poland’s Constitutional Breakdown (Oxford: Oxford University Press, 2019), 243.

[15] Scheppele and Pech What Is Rule of Law Backsliding?’, Verfassungsblog.

[16] Steven  Levitsky and Lucan A.  Way, “The Rise of Competitive Authoritarianism,” Journal of Democracy 13, no. 51 (2002).

[17] Ivan Krastev, The Light That Failed : A Reckoning ([London]: Allen Lane, 2019).

[18] Isabel Bramsen et al., International Konfliktløsning ([Frederiksberg]; [S.l.: Samfundslitteratur ; I samarbejde med Rådet for International Konfliktløsning, 2016).

[19] Scheppele and Pech What Is Rule of Law Backsliding?’, Verfassungsblog.

[20] Adam Przeworski, “The “East” Becomes the “South”? The “Autumn of the People” and the Future of Eastern Europe,” PS: Political Science and Politics 24, no. 1 (1991).

[21] For more on this: Paul Betts, “1989 at Thirty: A Recast Legacy,” Past & Present 244, no. 1 (2019).

[22] Tom Ginsburg, “Constitutional Endurance,” in Comparative Constitutional Law, ed. Tom Ginsburg and Rosalind Dixon (USA: Edward Elgar, 2011).

[23] R. Daniel Kelemen, “Europes Other Democratic Deficit: National Authoritarianism in Europes Democratic Union,” Gov. & oppos. Government and Opposition 52, no. 2 (2017): 229.

[24] Which would be difficult with the use of the otherwise promising ‘competitive authoritarianism’

[25] Scheppele and Pech What Is Rule of Law Backsliding?’, Verfassungsblog.

[26] Hanley and Vachudova, “Understanding the Illiberal Turn: Democratic Backsliding in the Czech Republic.”