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Populist Constitutionalism? (4): The Populist Threat to Democratic Constitutionalism

14th November 2017

credits: ATTILA KISBENEDEK/AFP/Getty Images

In anticipation of our Workshop on Populism and Constitutionalism on 20 November (info & sign up here) we are publishing a series of blog posts in which the speakers will outline their thoughts on the topic. We are continuing our series with a contribution from Paul Blokker, Associate Professor of Sociology at Charles University, Prague. In his contribution, he argues for a deeper understanding of the populist engagement in constitutional politics and asks whether it could be reconciled with constitutionalism after all. See our previous posts here,  here, and here.

The Populist Threat to Democratic Constitutionalism

by Paul Blokker, Associate Professor of Sociology, Charles University, Prague

Populism is widely understood as incompatible with liberal-democratic constitutionalism: ‘populist ideologies are structurally hostile to constitutionalism’. It is even said that ‘populists are a greater threat to liberal-democratic constitutionalism than the minority of religiously fundamentalist immigrants ever could be’. Populists worldwide, however, actively engage with constitutional change and even constitution-making.1 In many of these instances, populists claim to be constructing an alternative constitutional order, in at least partial and critical contrast to liberal-democratic constitutionalism.

What should we make of this? Are the claims and justifications of populists to be dismissed out of hand, as abusive constitutionalism from which the only lesson that can be drawn is that liberal-democratic constitutionalism should be fortified? And is therefore any attempt to scholarly engage with such claims to be met with ‘suspicion’ and to be viewed as an act of complicity?

It is adamant to get a more solid grasp on the legal and constitutional dimensions of populism in power.

Or is it rather adamant to seriously engage in the analysis of the populism-constitutionalism nexus, in order to find ways to understand potentially deeper, historical and structural causes of the relative weakness that liberal-democratic institutions have shown in the face of outright ‘counter-constitutional revolutions’.2 Which is the best way to go forward if we want to save a democratic project constitutionalism from the current predicament? This contribution wants to argue along the lines of the second position, that is, the claim that there is a need for careful, systematic analysis of populist constitutionalism, rather than the tendency towards a rather complacent, unreflexive restatement of the superiority of ‘liberal-democratic constitutionalism’.3

Therefore, I argue that if we want to understand the emergence of populist promotion of ‘illiberal’ constitutional projects, it is adamant to try to get a more solid grasp on the legal and constitutional dimensions of populism in power.

My view is that populist approaches to constitutionalism and the rule of law need to be understood in their distinctive engagement with legal or liberal constitutionalism. The latter appears to be populism’s mirror, and this makes that populism shares with other approaches critical to liberalism and the rule of law a number of points of contention. The populist reaction to liberal constitutionalism involves inter alia, as I have attempted to explore elsewhere, the dimensions of extreme majoritarianism, instrumentalism towards constitutions, and resentment vis-à-vis a liberal understanding of constitutional law.

Extreme majoritarianism

According to populists, the existing institutions of representative and pluralist liberal democracy are not effectively promoting the interests of the political majority (or ‘historical nation’). Populists approach the majority as a durable and pre-political entity, and equate it with a material, social unity, which in right-wing populism takes the form of the nation.4 This is in sharp contrast to the understanding of the majority in liberal, procedural terms, that is, as grounded in a temporary aggregation of political forces, which represents a variety of social interests. In this, populists see democracy not as institutionalized conflict, but rather as about unambiguously promoting the interest of the majority.

In the eyes of populists, liberal democracy renders the promotion of the majority’s interest difficult. For populists, the liberal design of democracy hinders politics as the expression of the voice of the majority, at least if liberal democracy is understood as including not only strong and independent judicial institutions, but in particular constitutional courts with considerable review powers. The counter-majoritarian difficulty is thus resolved unambiguously in favour of the will of the majority.

As can be observed in contemporary Poland, the populist project of promoting the (historical, cultural) majority is strongly informing its current constitutional crisis. Effective popular sovereignty is equated with the unhindered wielding of political power by parliament and government, both firmly controlled by the Law and Justice party (PiS). As stated by Lech Morawski, a law professor and one of the contested, new judges of the Polish Constitutional Tribunal, installed by the PiS government: ‘[t]he legislative activity of the [Constitutional Tribunal] significantly distorts the principle of separation and balance of powers, since in practice it means that the supreme legislative power is exercised not by the parliament and the government but by the constitutional court’.

Instrumentalism

For populists, the law serves to promote the nation’s interest, not as a protection against the abuse of power.

As a result of extreme majoritarianism, populist constitutionalists tend to collapse the distinction between ordinary and constitutional politics. Populists seem to prefer an instrumentalist approach to constitution-making and constitutional revision, in which constitutional norms are not higher ‘framework’ norms, but rather evaluated on the basis of the extent to which they promote the majority interest. Instrumentalism seems in this a strong, political reaction to the limits and rigidity of the liberal-constitutional approach, in the latter’s emphasis on apex courts, with strong review powers, and final authority in the interpretation of ‘entrenched’ and ‘rigid’ constitutions.

The Polish constitutional crisis is again a clear example. As observed, the ruling PiS party is guided by the idea that rigid, judicial control of politics makes majority politics impossible. Repeatedly, PiS politicians argue that the law is valuable in terms of its promotion of the nation’s interest, and not as a protection against the abuse of power. PiS expresses this negatively in the idea of ‘impossybilizm prawny’ or legal impossibilism, that is, the ‘constraints faced by the executive branch of the government’ in its efforts to bring about ‘good change’.5 This expression emerged already in 2005-7, the period of the first PiS government. Already at the time, PiS did the utmost to eliminate constraints to its rule, by for instance launching a campaign for a ‘Fourth Republic’ and a new constitution. Part of the PiS campaign was the attempt to expand presidential powers, to put the Tribunal’s verdicts on constitutionality into doubt or even to curb its powers, or to ignore constitutional procedures altogether.6

Resentment

In general terms, I refer to the distinctive populist attitude to the law as ‘legal resentment’, a resentful stance vis-à-vis liberal and legal constitutionalism.7 In the current Polish crisis, ressentiment appears upfront in a variety of ways,8 not least in terms of feelings of belittlement of Poland vis-à-vis the European Union or its German neighbour. In distinctive legal terms, resentment relates to a cumbersome, disappointed, and dismissive attitude towards the West-European, liberal understanding of the law. The Western idea of the rule of law is dismissed, or at least portrayed as not befitting the domestic context and traditions of East-Central European societies. These societies have strong collectivist and religious traditions, which allegedly have universal significance in their own right.9 According to Jarosław Kaczyński, ‘in today’s Europe, in which there is, without doubt a crisis of values on which European civilisation has been built, and I am thinking about a civilisation with Latin roots supported by Christianity, (…) all these ideals are being lost in today’s Europe. They are being forgotten and trampled by other ideologies that debase the essence of humanity and the human being’.10 In Hungary, similar views are being expressed. As György Schöpflin, a member of the European Parliament for the Hungarian Fidesz party, stated, the liberal paradigm suffers from ‘universalist pretensions and overweening self-confidence’. According to Schöpflin, Hungary ‘rejects liberal universalism and insists that Christian values are as valid as secular liberal norms’.

Populist constitutionalism?

Populism de facto denies the pluralistic engagement of different groups of citizens in self-government.

How then to understand the populism-constitutionalism nexus? Should we condemn populist constitutional projects as unjustified hostility towards Western liberal and rule of law standards tout court? Is the populist priority for the political majority (and its alleged collective identity), and for politics before the law, to be understood as a denial of democratic-constitutional rule as such? Or can some of the claims and criticism of populist constitutionalism be somehow situated within the modern constitutionalism tradition?

If we accept a dual understanding of modern constitutionalism, one emphasizing the liberal, legal tradition with an emphasis on order and the limitation of power, the other emphasizing freedom from external constraint and democratic self-rule,11 populist constitutionalism appears to be a rejection of the first and some kind of play on the second, democratic tradition.12 Populism rejects the liberal, legal constraints on the political power of the majority, while it claims to promote a constitutional order that puts the sovereignty of the people and its self-governing power upfront. It claims to build a new constitutional order to promote the common good of the majority, against partisan or non-national interests.

But can the populist constitutional project, with its radical emphasis on the popular majority, be put squarely in the democratic-constitutional camp? There are undeniable indications that it cannot. As I have suggested elsewhere, the democratic constitutional tradition prioritizes democratic collective autonomy, understood as the condition in which all members of a political community are able to participate in the self-rule of that community. From this perspective, liberal-democratic constitutionalism is open to the critique of constraining popular self-rule, in the name of, for instance, enlightened elite rule or technocratic or expert governance.

But while populist constitutionalism may share some of the thrust towards denouncing a technocratic, legalistic understanding of government as detrimental to democratic rule, at least in the right-wing version now increasingly widespread in East-Central Europe,13 it de facto denies the pluralistic engagement of different groups of citizens in self-government. It thus tends to undermine its own democratic potential and fails to revive and further democratize constitutional democracy as an emancipatory and inclusionary political project.

Footnotes
1. Cf. Jan-Werner Müller (2016), What Is Populism?, University of Pennsylvania Press.
2. Kim L. Scheppele (2017), ‘The Social Lives of Constitutions’, P. Blokker and C. Thornhill (eds), Sociological Constitutionalism, Cambridge University Press, pp. 35-66; Gábor Halmai (2015), ‘From the “Rule of Law Revolution” to The Constitutional Counter-Revolution in Hungary’, in: European Yearbook of Human Rights 2012, available at: https://ssrn.com/abstract=2577886., University of Pennsylvania Press.
3. In this contribution, I mainly refer to, and draw examples from, the recent experience with right-wing populism in East-Central Europe. The relation between populism and constitutionalism is evidently much more complex, not least because of the longer standing, and in many ways different, experiences with populist constitutionalism in Latin America.
4. Cf. Paul Blokker (2005), ‘Populist nationalism, anti-Europeanism, post-nationalism, and the East-West distinction’, German Law Journal, 6, 371.
5. Jacek Kucharczyk (2007), ‘Introduction: Democracy in Poland 2005–2007’, in: Lena Kolarska-Bobińska et a. (eds.), Democracy in Poland 2005–2007, Warsaw: Institute of Public Affairs, pp. 7-14.
6. Wojciech Sadurski (2007), ‘The Constitutional Order’, in: Lena Kolarska-Bobińska et a. (eds.), Democracy in Poland 2005–2007, Warsaw: Institute of Public Affairs, pp. 15-30.
7. Cf. Paul Blokker (2013), New Democracies in Crisis? A Comparative Constitutional Study of the Czech Republic, Hungary, Poland, Romania and Slovakia, Series: Routledge Advances in European Politics, London/New York: Routledge; Paul Blokker (2016), ‘EU Democratic Oversight and Domestic Deviation from the Rule of Law: Sociological Reflections‘, in: Carlos Closa and Dimitry Kochenov (eds), Reinforcing the Rule of Law Oversight in the European Union, Cambridge University Press, pp. 249-69.
8. Molly O’Neal (2017), ’The European “Other” in Poland’s Conservative Identity Project‘, in: The International Spectator 52, no. 1, pp. 28-45, 30.
9. Cf. Adam Balcer et al. (2016), ‘Change in Poland, but what change? Assumptions of Law and Justice party foreign policy’, Warsaw: Batory Foundation, p 7.
10. Cited in Balcer et al. 7.
11. Martin Loughlin and Neil Walker (2007), The Paradox of Constitutionalism: Constituent Power and Constitutional Form, Oxford University Press; Paul Blokker (2017), ‘The Imaginary Constitutions of Constitutions’, Social Imaginaries 3:1, pp. 167-194.
12. Luigi Corrias (2016), ‘Populism in a Constitutional Key: Constituent Power, Popular Sovereignty and Constitutional Identity’, in: European Constitutional Law Review, 12(1), pp. 6-26.
13. The Czech Republic might soon turn into another regional example of cumbersome, populist meddling with constitutional democracy, cf. Jiri Priban (2017), The Defence of Constitutionalism. The Czech Question in Post-National Europe, Prague: Karolinum Press.

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