Abstract
Populism is not a new social phenomenon, as its history dates back to the 19th century. Nor is it a new subject of scientific interest, as it has been discussed at least since late 1960s. 2 Interestingly however, until recently populism was mainly analysed as a discourse (see Laclau, 2005) or movement (Mudde and Kaltwasser, 2013) rather than an alternative system of ruling power. This regularity had to do with the reality itself, as politicians or movements labelled as ‘populist’ were not necessarily those who were wielding the power. Things have changed dramatically in the last two decades, with the success of politicians like Victor Orban, Jarosław Kaczyński, Jair Bolsonaro or Donald Trump (see Müller, 2016). These developments in the social world shifted scholar interest from populism understood as a popular movement (a movement of opinion and contestation) to populism as a ruling power (a system of decision making), as distinguished by Nadia Urbinati (2019: 15) in her excellent piece on the relation between populism and democracy. Legal scholars became particularly interested in the question of ‘populist constitutionalism’, understood as either fully fledged alternative to liberal constitutionalism or a notion to examine a transformation of constitutionalism that happens under the populist rule (Blokker et al., 2019; Müller, 2017).
The new book Anti-Constitutional Populism, edited by Martin Krygier, Adam Czarnota and Wojciech Sadurski, is one of the most recent and complex attempts to capture this change in the social world and examine the problematic relation of populism with modern constitutionalism. The book delivers a great selection of empirical cases, supplementing usually discussed cases of Hungary and Poland, with less known cases of Brazil, Venezuela, South Africa and the Philippines. 3 In this review essay, I would like to briefly discuss the content of this volume and try to place it in the broader context of the theoretical discussions on the populist challenge to the liberal democratic framework. My comments concern the concept of populism (what is understood by populism?), its geographical and political occurrence (where does it occur?), as well as its political and socio-economic roots (why does it occur?).
Starting with the structure of the book, it is divided into six parts. The ‘Introduction: Anti-constitutional populism’ (pp. 1–24) by Martin Krygier provides an excellent summary of the common concerns and questions addressed by the contributors. The central four parts discuss populism in different theoretical, geographical and political contexts. The first part (I: Populisms, pp. 25–182) consists of more general contributions of Bojan Bugarič (Chapter 1: Populist constitutionalism – Between democracy and authoritarianism, pp. 27–66) and Lucia Corso (Chapter 2: Anti-elitism and the constitution – Some reflections on populist constitutionalism, pp. 67–98), who both discuss the concepts of populism and the possibility of populist constitutionalism, and more detailed ones of Theunis Roux (Chapter 3: Constitutional populism in South Africa, pp. 99–137) and Richard Heydarian (Chapter 4: Subaltern populism – Dutertismo and the war on constitutional democracy, pp. 138–82), who discuss the empirical cases of populism respectively in South Africa and the Philippines.
The second part (II: Courts, pp. 183–294) discusses the role of judiciary in the emergence of populist rule. This includes the piece of Raul Urribarrí on Venezuela (Chapter 5: Populism, constitutional democracy, and high courts – Lessons from the Venezuelan case, pp. 185–219), contribution of Alexandre Brandao on Brazil (Chapter 6: When Bolsonaro and the judges go shopping – How Brazil’s legal elites opened the door for Bolsonaro’s bad populism, pp. 220–53), as well as a chapter on the Hungary of Ester Bodnar (Chapter 7: Disarming the guardians – The transformation of the Hungarian Constitutional Court after 2010, pp. 254–94). The third part (III: Anti-constitutionalism after post-communism, pp. 295–398) examines the political and socio-economic roots of populism in Central Eastern Europe, where cases of Poland and Hungary are covered by Paul Blokker (Chapter 8: Conservative populism in defiance of anti-totalitarian constitutional democracy, pp. 297–335), Michał Stambulski (Chapter 9: Constitutional populism and the rule of law in Poland, pp. 336–65) and Gabor Halmai (Chapter 10: Populism or authoritarianism? A plaidoyer against illiberal or authoritarian constitutionalism, pp. 366–98).
The final fourth part (IV: EU responses, pp. 399–492) is concerned with the response of European institutions to the emergence of populist rule. Again, the cases of Poland and Hungary are discussed by Julian Scholtes (Chapter 11: Populism and the crisis of constitutional pluralism, pp. 401–33), Oreste Pollicino (Chapter 12: Populist constitutional grammar – Between manipulative borrowing and bad (judicial) masters, pp. 434–61), as well as Barbara Grabowska-Moroz together with Dimitry Kochenov (Chapter 13: Constitutional populism versus EU law: A much more complex story than you imagined, pp. 462–92). The volume ends (V: Concluding reflections, pp. 493–542) with two general comments. Meanwhile the one provided by Wojciech Sadurski serves as a summary of the book (Chapter 15: Institutional populism, courts, and the European Union, pp. 506–42), Adam Czarnota’s contribution supplements the rather anti-populist implications of the volume, with the more favourable reading of populism, as something that has a potential to revive democracy (Chapter 14: Sources of constitutional populism – Democracy, identity and economic exclusion, pp. 495–505).
Moving to the content of the volume in detail, the main question addressed by contributors is whether populists are an enemy or a friend of constitutional democracy. Despite what the title might suggest (e.g. that populism is anti-constitutional from its outset), the book does not give a single answer in this regard. Most contributors tend to claim that some forms of populism may be good for democracy, while some of them are certainly not (see, for instance, chapters of Bugarič, Halmai, Corso or Brandao). Other contributors have limited themselves to show that ‘actually existing populism’ (as coined by Roux) is in general bad for constitutional democracy (see, for instance, chapters of Roux, Urribarrí, Kochenov and Grabowska-Moroz, as well as Bodnar and Pollicino), meanwhile Czarnota seems to claim the opposite. For this reason, the title of the volume seems to be misleading, and it would be much more adequate if it would have been supplemented with a question mark (either after the word ‘anti’ or at the very end of the title).
At the same time, it seems that the very controversy between the contributors on the relation between populism and constitutional democracy is to some extent apparent. To fully understand this claim, it shall be stressed that the book is permeated with the theoretical controversy, whether to adopt a thin or thick concept of populism. In most cases this conceptual choice determines the answer, whether populism might be beneficial to constitutional democracy or whether such a thing as populist constitutionalism is impossible. According to thick concepts, as developed earlier by Werner-Müller or Cas Mudde, populism is anti-pluralistic and anti-liberal from its outset and as such it inevitably leads to some authoritarian forms of rule. According to the proponents of thin concepts of populism, populism simply rests on the division between the people and the elite. Being so, it is not inevitably authoritarian, but it might also accommodate democratic forms of exercising the power. The second view is accepted by a vast number of contributors, such as Bugarič, Scholtes, Halmai, Brandao or Corso, who distinguish between ‘good’, ‘soft’, ‘democratic’ on the one hand and ‘authoritarian’, ‘bad’, ‘hard’ populism, on the other. Bojan Bugarič justifies his conceptual choice, by claiming that thick concepts of populism are built to discredit right-wing, authoritarian reactive populism (Chapter 1, pp. 35 onwards). The problem is – as he argues – that eventually thick concepts of populism, as they bear no adjective, are used to discredit also democratic and progressive forms of populism. A similar position is taken by Gabor Halmai, who agrees that populism might be democratic, but at the same time qualifies Poland and Hungary as examples of authoritarian populism (Chapter 10, pp. 366 onwards).
This controversy is self-evident. After all, the practical consequences of adopting a thin or thick concept of populism are similar. Note that proponents of both thin and thick concepts of populism (such as Bugarič or Werner-Müller) have at the end the same normative aim: they want to defend democratic forms of populism. The difference lies in the strategy: Werner-Müller carves his concept of populism to rule out from its scope progressive populism and depicts populism as something negative from the outset; meanwhile Bugarič insists on the normative neutrality of populism, which makes it possible to depict some forms of populism as compatible with constitutional democracy. In the other words, the vast majority of contributors, regardless of whether they subscribe to thin or thick concepts of populism, condemn right-wing forms of populism (of which empirical exemplification would be Poland, Hungary or Brazil), qualifying them as authoritarian and anti-constitutional in their core. The only exception would be the position of Adam Czarnota, who claims that right-wing populism, also in its Central-Eastern European exemplifications, strives to overcome the limitations involved in liberal constitutional frameworks, such as low levels of political participation, fragmentation of the society into individuals, as well as deep socio-economic inequalities (Chapter 14, pp. 498 onwards). In doing so, Czarnota argues, populism perhaps is not thinking of constitutionalism in the matters of the superior law or an ideology that has to do with the limitation of power, but it stresses political constitutionalism and as such it makes space for the deeper participation of citizens (pp. 503–4).
Such a position seems to be at least problematic, as usually there is a huge gap between what populists say as opposed to what they do. 4 By focusing solely on the populist discourse, without including the practices of populists exercising the power, it is not possible to capture the nature of populist discourse, which is legitimising rather than descriptive or normative. Consider in this regard the case of Law and Justice that invokes the rule of the sovereignty of people and refers to other classical majoritarian arguments to justify its actions, but at the same time it consolidates power on the expense of parliament, and it shifts the decision-making centre outside of the constitutional system of state organs. Think also of Law and Justice government’s ambivalent relation with the social justice. Kaczyński and his allies do speak about social justice and adopt policies that allegedly aim to fight social inequalities, but at the same time they lower tax rates, which results in the further weakening of public services (such as public schooling and the public health-care system) that are crucial to fight social inequalities in the long run. Łukasz Pawłowski (2020) describes this process with the idea of ‘a second wave of privatisation’, where public services are replaced with the social benefits (understood narrowly as a financial aid), meanwhile citizens’ needs are to be secured by the private entities. In such circumstances the mitigation of social inequalities cannot be sustained. Not surprisingly, according to the newly published report by the governmental body, despite the elevation to power of Law and Justice in late 2015, social inequalities are increasing each year since 2017 onwards (Główny Urząd Statystyczny, 2022). After all, it does not seem to be that surprising. If we are to agree that populism feeds on social inequalities, then it can be accepted that populist leaders simply have no interest in fighting them, as this would liquidate the socio-economic conditions for their rule. A populist leader is like a firefighter who shouts: ‘catch the arsonist’, but at the same time is keeping the fire on, to make sure that he or she is needed. Therefore, one may claim that populist discourse is neither descriptive nor normative, as its sole role is to legitimise the authoritarian reforms. In this aspect, it resembles constitutional discourse in real socialism, where the political elites also invoked democratic arguments (alleged supremacy of the parliament) to hide and justify the authoritarian practices (locating the decision-making centre outside the constitutional system of power; the factual uncurbed power of the Party) (Zomerski, 2022; also: Kustra-Rogatka, 2023).
Being for these reasons sceptical about the democratic potential of ‘actually-existing populism’, Czarnota’s chapter, along with several others (Roux, Blokker, Heydarian, Stambulski), might be praised for discussing the political and socio-economic factors that made space for the success of populism. These authors either acknowledge or openly argue that there is a link between populism, social inequalities and globalisation (Rodrik, 2018). I believe that this is one of the major advantages of this volume, especially, if we are to compare it with other alternatives. As noted by Stambulski (Chapter 9, pp. 348–9), mainstream liberal scholarship tends to see the roots of populism in the psychological characteristic of the populists’ supporters. In this perspective, populist voters are depicted as xenophobic, egoistic and illiberal, or in other words morally inferior to the liberals. Frank Furedi (2021) describes this phenomenon with the idea of the ‘construction of the illiberal subject’, which is based on the pathologisation of the mental state of populists’ proponents and allows one to see them as suffering from some psychological deficit. The example of such an attitude would be the recently published book on Illiberal Constitutionalism in Poland and Hungary by Timea Drinoczi and Agnieszka Bień-Kacała (2021), but to some extent also Wojciech Sadurski’s (2019) well-known book on Poland’s Constitutional Breakdown, where the author argued that in the pre-populist era all economic factors were increasing and thus there must be another explanation for this phenomenon. It seems that the problem with the psychological explanation of populism is that xenophobia, egoism and narrow-mindedness are present in each society, perhaps even at the micro-level of each individual. If some emotions in a given society at a given time are prevailing, to such an extent that they influence the sphere of politics, it is not because the given community consists solely of individuals bearing a given characteristic, but owing to some external factors, which allow the extraction of these feelings into the illiberal political agenda. In other words, emotions and personal characteristics that potentially elevate populists to power are present everywhere, from Poland through Germany to England. The right question is to consider why these emotions prevailed in a given case at a given time. Thankfully, such possible explanations are present in the book at hand.
What is also valuable in the discussed volume, is the fact that it is not blind – as it is often a case of mainstream liberal legal scholarship that tends to idealise the pre-populist political and legal order – to the political developments that took place in the pre-populist era. The authors, who adopt less normative but a more descriptive position, are showing that the crisis of parliamentarism and consolidation of the executive power took place in the pre-populist era and as such the emergence of populist rule might be seen as a natural consequence rather than a cause of democratic backsliding. Such an argument was articulated specifically as regards to the Polish case by Karol Muszyński and Paweł Skuczyński (2020) in their recent excellent book on the crisis of social constitutionalism in Poland, and earlier regarding the whole region of Central Eastern Europe by Paul Blokker (2013). In both accounts, the process of the consolidation of power was associated with the accession to the EU. Interestingly, these claims find confirmation in the book of Michael A Wilkinson (2021) on the Authoritarian Liberalism. In this narrative, right-wing populists deployed the already existing system of consolidated power rather than having had to create it from scratch. A similar line of argumentation might be found in the pieces of Blokker on Poland and Hungary, Stambulski on Poland, Urribarrí on Venezuela, Brandao on Brazil, as well as in the final piece of Czarnota. Again, the presence of such a line of argumentation in the discussed volume confirms its substantial value and proves the maturity of the political and legal studies on populism.
Moving to the conclusion, I think that the biggest advantage of Anti-Constitutional Populism, which brought together authors from all over the world, is its plurality. The plurality concerns theoretical choices (thin/thick concept of populism), nature of considerations (general questions about the nature of populism/discussion of local empirical examples of populism), normative stances towards populism (seeing it as inevitably authoritarian and anti-constitutional/seeing it as a potential corrective to liberal democratic order), as well as geographical choices (from Brazil and Venezuela, through Poland and Hungary, to South Africa and the Philippines). This plurality resulted in the various answers to the question of whether populism is a friend or a foe to constitutionalism (from a clear ‘foe’, through ‘a bit of both’ or ‘one or the other depending on the circumstances’, to unambiguous ‘friend’). These ideas, however, are unfortunately not reflected in the title, which suggests that the volume gives a single answer to the question. Despite this minor flaw, the volume is illuminating, inspiring and informative. Being above all concerned with the problem of populism in power and its relation to constitutional democracy, it managed also to discuss the political and socio-economic conditions that made space for the emergence of populism in power. As such, it summarises current discussions in the field, brings new provocative thoughts and invites further discussion on the problematic relation between populism and constitutionalism.