Corrective power of the populists

Do populists pose a threat to constitutional democracy? Are populists always the villains in our tales about democracy? Bojan Bugarič answers these questions in a conversation with Kasia Krzyżanowska. He also talks about his recent book on the relationship between constitutionalism and populism, co-authored with Mark Tushnet. 

Kasia Krzyżanowska: Let us start with the main claim of your book. You basically state that “some versions of populism are inconsistent with some versions of constitutionalism,” but other types can fit the constitutional framework perfectly well. You also mention that there is no such thing as populism in general. The latter claim for many scholars might come as a surprise. In fact, many do not agree that we can reconcile anti-pluralism and impatience with institutions, shared by populists, with constitutionalism. Can there be a plausible argument for an existence of populist constitutionalism?

Bojan Bugarič: Thank you for this question. You are right that this is one of the key points of our book and the answer is: yes, of course. There are examples of populist constitutionalism. But the main reason people are surprised about understanding that populism can be reconciled with constitutionalism is because they start with an abstract approach to populism. We criticised this idea of  ‘populism as such,’ because we argue that there are many different versions of populism. The most important thing to understand is that different versions also have different political and constitutional connotations and some of them are, of course, anti-institutional and anti-pluralist, but there are others which are not. We talk a lot in the book about those other examples: Southern Europe, with Syriza and Podemos, and we look at Bernie Sanders, and more right-wing examples such as Cinque Stelle (Five Star Movement, M5S) in Italy. We do not see that these movements try to undermine institutions or to be anti-pluralist or anti-institutionalist. 

There are examples, imperfect but good, of populists who pursue their agenda and yet respect the boundaries of constitutional pluralism and the tenets of constitutional liberal democracy.

Among many inspiring claims, one you make about methodology is really interesting. You state, and then prove, that the academic dislike of populism stems from preconceptions that academics (consciously or not) stick to, which are then mirrored in their definitions, including the definition of populism (framed as anti-democratic or anti-constitutional). If this is true about legal methodology, can we really perceive law as an objective science? 

I have to go a long way back to remember when I stopped believing that the law was some kind of objective science. But even if we believe that it is an approximation of an objective science, we can say that the problem here with many people is that the way they approach populism is with a built-in antipathy in their scholarly approach. People who are in the political centre do not like either left-wing or right-wing populists, because they clearly diverge from their political agenda. If they are left-wing, some people favour left-wing populism but do not like other forms. In order to try to avoid that, we strongly suggest that the socio-legal route is the best way to go. We have to study populism in its context, we have to look at the whole, we have to look at the political economic situation, we have to look at the legal institutional part, and then after we see the entire phenomenon, we can make a judgement. We see that scholarship is sometimes the reverse process: people create an ideal type based on a few examples, then apply that ideal type, almost indiscriminately, to many other examples without studying them in detail. 

An interesting example was the brief Italian populist government, the Cinque Stelle (M5S) together with Lega (The league). They did not do much because they were in power only briefly, but there was a strong effect on all their measures and proposals simply because they were disliked because they were populists. In our book we try to show that some of their measures were not that bad, and not really harmful for constitutional democracy. One policy would have been reducing the size of the Italian parliament which was one of the largest parliaments in the world. In the book we asked – what is bad about that?

One might be surprised that among the elements of thin constitutionalism – that is constitutionalism that nearly everyone would agree on – you do not mention judicial review, but only judicial independence and accountability. Would you also make a case against judicial review as an antidemocratic, unbridled institution that claims epistemic superiority over other citizens, as powerfully argued by Professor Nikolas Bowie from Harvard?

It is one of the most difficult questions in the comparative studies of judicial review. Here probably I have slightly different views from my co-author Professor Tushnet. He is known for his earlier work very strongly criticising judicial review. My approach is a little bit more eclectic;  I do not believe that there is a general theory which explains sufficiently whether judicial review as such is good or bad. It depends on the socio-political context, on the situation in certain countries, but maybe the people who usually write about it give examples of this for well-functioning democracies. But sometimes it is good to have courts that can prevent abuses of executive or legislative powers. I see the excellent quality of the argument [of Nikolas Bowie], but I would not go that far. 

I think in theory it is much easier to criticise judicial review. When you look at judicial review in context, you see that sometimes you can make a relatively strong and reasonable case that it would be good to have independent courts. 

Think about Eastern Europe, think about places and regions that are known for producing intolerance, which are known for producing certain deviations from constitutional democracy. To argue against judicial review in such a context would be extremely counter-productive and could be harmful for democracy. But I would not exclude that there are other parts of the world where people might live happily in a democracy without judicial review.  But that is my agnostic take on it.

What really intrigued me is how you approach instrumental usage of law by the populists. You say somewhere in the book that “populists have better understanding of law as such,” that is ultimately instrumental. Populists aim to implement concrete policies that should improve people’s lives, so they sometimes approach the institutions creatively. But when does outmaneuvering the existing legal framework becomes dangerous? In other words: what is the difference between populists and proto-authoritarians in their approach to law? What kind of methodology should we apply to discern the difference between the two? 

Well, that is a very good question and the answer is not a simple one, but I hope we provide one in the book. Here is roughly the idea of how to distinguish between these two groups. Sometimes, of course, going against the institution is necessary in order to implement certain policy agendas that were promised during the elections. But the key difference between populist constitutionalists, who are also committed to key tenets of constitutionalism, is that they aim to change a few things here and there, but they do not intend to completely reverse the key tenets of constitutional liberal democracy. We see the latter now in Poland, in Hungary, or we saw it earlier in some Latin American countries. For example, the Greek Syriza government, short-lived at only four years, was accused by some scholars as being anti-institutional. But of course sometimes you have to be anti-institutional. Their major concern was the balanced-budget  fundamentalism which is enshrined in the European Union constitutional Fiscal Pact. They were not successful because they were alone, and had no supporters in their fight. 

I think that is a very legitimate and very democratically inspired attempt to reverse the constitution, but it is very different from the approach of anti-plural, proto-totalitarian governments who basically wanted to change almost all institutions. Look at Hungary – they got rid of all independent institutions which are tasked with monitoring the executive. Imagine a strong, democratic, populist government being elected somewhere with a strong democratic agenda. There are many things which we have built up in the last 30-40 years during this age of belief in neo-liberalism which I think went a little bit too far. Another example would be the independence of central banks. I am not arguing against their independence, but there are different ways in which their independence can be structured, and even if you compare the Federal Reserve with the European Central Bank you see a huge difference.  There are authors who think the European Central Bank needs to be a little bit more democratized in its mandate akin to the Federal Reserve.

Can we say that populists are stronger in these countries where a pro-constitutional culture is weaker?

That is probably a good topic for several dissertations. I generally still think and believe that constitutional culture is very important. That is why I think that what happened in Poland and Hungary was possible because of the weaker constitutional culture – it takes time before constitutional democracy becomes rooted in the society. But I do not think that we should take constitutional culture as a single explanatory factor. There must be other important things, such as huge crises, of the legitimacy of other political parties and so on, but the absence of a strong constitutional culture contributes importantly to their demise. A counter-example would be Trump’s attempt at almost a coup-d’état, but in the end it turned out that there are too many independent media platforms in the US to pursue this aim. The judges are also very strong and powerful. There are many people who worked for the electoral commissions and other law enforcement agencies who deep down were committed democrats, so for Trump it was very difficult to do that. On the other hand, you look at Turkey and Hungary and other countries and you see that is a lesser issue. But again, I think we should be very careful here. I am not sure, for example, that even Poland and Hungary are exactly the same. 

I see more resistance in Poland than I do in Hungary, so a good empirical question would be why judges provide more resistance in Poland and that is something that needs to be researched. 

You seem to organise and systematise different forms of populism in a regional way, so can we say that populism comes in different regional variants and is there such a thing as central Eastern European populism?

Yes, I think there are regional flavours to different types of populism. We can clearly see that Southern European populism had different origins and was motivated mostly by the economic crisis. In Eastern Europe, yes, it was a little bit of the economy, but it was as much to do with identity, so it was about migration, Christianity, and several other things. But then you see that other parts of the world replicate certain patterns, so I would not completely argue that these are only regionally specific and they are completely different from others, but I agree they show certain distinctive regional characteristics. Western European examples are different but in Western Europe we have seen only two countries where populists were in power and only for very short periods of time – that was Italy and Austria. One important difference between Western and Eastern European populists is their attitude towards institutions. Eastern European populists are much more impatient about institutions. 

Recently Petr Agha, in a conversation with our editor Oliver Garner, criticised the European narrative of anti-populism for marginalising the critical voices that might be informative about the changes that are needed in the European project (or in domestic politics). Instead, this discourse precludes academics from approaching the political shifts analytically in order to understand why some ideas do not enjoy support anymore. You seem to argue in a similar vein, quoting political scientists Mansbridge and Macedo that essentially say that the core of populism (juxtaposition of us and the elite) might be beneficial to democracy by taking democratic politics back to its normative roots. Could you provide some positive instances of populist movements of this kind?

I agree with the way you describe the arguments. Populists are many times correct, and their criticism of liberal democracy is valid and has a point. To attack all populists is dangerous, as their message gets lost. That is why it is very dangerous to put all populists in the same bag as we lose the insights of those who might have something to contribute to a revitalisation of democracy. In our book we attempt to distinguish between the populists who hold this important agenda from those who use populism for other means, such as diminishing the power of the opposition, and diminishing the role of all the institutions as referees that we have in constitutional democracy that control executive power. By distinguishing between the two we hope that we will open the debate about those pro-democratic populist agendas that promise to provide something positive to constitutionalism. 

The good question is, however, why do we see so few positive examples? Some people would respond that it is because populism has this built-in tendency to degenerate into something negative. I do not agree with that. I think it is exogenous – it is not part of populism per se, as it depends, among other things,  on the personality of the political leaders. That is why you can have a person like Bernie Sanders as a populist, and you can have Marine Le Pen as a populist. They are very different people, with very different beliefs and different policy agendas. If we do not distinguish between them, then we endanger this positive aspect of populism. 

Direct democracy instruments are really in fashion now: the Conference on the Future of Europe also applies this instrumentation. In your book you also mention some democratic innovations that would give power to the people. Can you briefly describe each of them providing concrete examples of their practical application? 

That is the last part of the book where we try to make some normative arguments, and try to encourage thinking in the direction of more empowered democracy, and more extensive use of this form of direct representation. A classic example would be referendums which are nothing new. There is also a tendency to be absolutely negative about direct democracy. I remember I attended a conference a few days ago with the best American constitutional scholars, and one of them said “just mention direct democracy among constitutional law scholars and you would immediately be accused of being a populist.” So there is this idea that referendums are somehow antithetical to constitutionalism, that they do not belong to the pluralist constitutional democracy. We argue that there are many things that can go wrong with referendums, but that concerns the design of the referendum, not the idea of referendum as such. Of course, in the past referendums were abused many times, but any institutions can be abused. 

There are also referendums that, if used properly, can bring more enlightened debate and a broader base of opinions together. 

In the book we use the example of Brexit, which is a bad use of populism because people did not know precisely what the real referendum question was –  the clarity of the referendum question is a prerequisite in order to have a meaningful referendum. Without that a referendum will end up badly, and that is exactly what happened with Brexit.

We analyse also the idea of deliberative polling, which is being widely researched by many political scientists. The idea is very simple: you start with a small selection of representatives of citizens in smaller groups, you engage them in a very intense debate about different social issues, you frame the discussion in a proper way, and you end up with a very enlightened deliberative discussion. The most recent book by Hélène Landemore from Yale provides a long list of examples where this technique not only supplements, but also contributes a lot to better representativeness of our constitutional model. 

I want to make another point about that by saying we would like to see more uses of direct democracy, but we are not saying that they should always replace representative democracy. Populists are much more pragmatic than usually depicted in the literature. Sometimes parties and elections are just fine, and we should respect that. But on the other hand, we should use other tools of direct democracy to improve the openness and transparency of all democratic tools of representation, and to make them more representative of the people themselves.  

But it seems the EU, which is using the assembly method within the Conference framework, is not accused of being too populist.

That is a good point. When the Conference on the Future of Europe started, I was a little bit surprised at the very low interest among citizens. The use of the tools per se do not guarantee great results – there are many issues which are exogenous to the tools that are important, about the commitment of the leaders and other matters. I would not want to write off the use of this Conference, but I am not particularly sure that it is going to bring about some huge meeting of Europe. 

In the last question I wanted to ask you about the limits of these institutions. You already mentioned some resistance among the constitutional scholars to the usage of the instruments of direct democracy.  You also discuss in the book some instances of scholars that diminish the role of citizens.  What happens if the people, through the mechanisms that you describe, decide to reduce the substance of some of the democratic rights? 

We are often asked this question when we present our book. There are at least two general approaches to this question. One is that we can do nothing – if people want to elect fascists, well, that is democracy. The other response is that we can build all these complicated legal institutions, sometimes called  – “militant democracy” –  which might somehow prevent the rise of that. My personal opinion is that 

legal institutions have a certain role, especially in the early stages of the rise of authoritarianism. But I do not think that constitutional courts or independent commissions will ever be able to stop authoritarianism. 

If people decide to elect an authoritarian government, then all these legal institutions are to no avail. So it is basically a political question. 

Sometimes I am surprised that many of our legal scholar colleagues put so much energy into looking at how we should prevent the outburst of democratic energy through the use of legal institutions, rather than trying to think about why, in the first place, people want to vote for these bad guys. Because this is not a given. There are different ways one might approach that issue — for example, by changing political agenda, and changing the platform for political parties. One approach would be the punitive approach — how to ‘punish’ people who vote for populists. The other approach is to look at what to do differently, to look at the supply side of what you offer to people. I am more on the latter side. I am not so sure that it is always good to look at how to establish more and more legal institutions to try to prevent populism.

In collaboration with Karen Culver, Oliver Garner

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