RevDem Editor Oliver Garner interviews Michael Wilkinson on his latest book. You can read the edited transcript below or listen to the podcast:
Oliver Garner: Welcome to the latest RevDem podcast. Our guest today is Dr Michael Wilkinson, Associate Professor of Law at the London School of Economics, who has recently published ‘Authoritarian Liberalism and the Transformation of Modern Europe’ with Oxford University Press. The topic of our conversation will be the implications of the concept of authoritarian liberalism for the rule of law, democracy and constitutionalism in Europe today.
This book is the result of research you have conducted during the tumultuous start to the 21st century which has seen economic, political and now public health upheaval. Against this background, what motivated you personally and intellectually to develop this innovative argument as to how authoritarian liberalism has transformed modern Europe?
Mike Wilkinson: I started considering the concept of authoritarian liberalism at the height of the Euro crisis around 2012 and 2013 when there were quite dramatic interventions into the political life of the Member States, and in an increasingly authoritarian manner. The whole premise of European integration was based on the idea of consensus – in many accounts it was a permissive rather than an active consensus, but consensual nevertheless.
What transpired in this period, however, looked less and less consensual, and more and more authoritarian in terms of the types of intervention that were being imposed or offered, in conjunction with a project that’s ostensibly based on economic liberalism.
This appears something of a jarring concept, if not an oxymoron, because, particularly in the Cold War, liberalism was paired with democracy and authoritarianism is something other, perhaps associated with the Soviet Union or China or something outside the European context. But then I soon discovered that it was a concept that had quite a long history in the context of 20th century democracy. I looked at the works of scholars like Renato Cristi who has written a book on authoritarian liberalism and Carl Schmitt in the late 1990’s, and the work of Kanishka Jayasuriya, a Southeast Asian scholar who had identified ‘ordoliberalism’ as an authoritarian version of liberalism long before ordoliberalism was being discussed in European contexts. So I got this link between authoritarian liberalism as it was occurring during the Euro crisis, and authoritarian liberalism as it had appeared in the inter-war conjuncture. I mentioned Carl Schmitt, but authoritarian liberalism was a term coined by Herman Heller, a German social democrat and constitutional theorist, who used the term pejoratively to critique Schmitt and the cabinets in the late Weimar period, in the early 1930’s, that Schmitt was advising.
I then had the link – there were numerous parallels between events during the Eurocrisis and the inter-war period, economic parallels, political parallels, and of course also significant differences, but I didn’t have the trajectory from then to now. I wanted to fill that out; I didn’t want to simply identify some parallels and think about, for example, the norm versus exception analogy, but instead to consider how we got from the inter-war period through to the present day. Then it became a very ambitious project because for this I needed to dig deep in terms of the post-war resettlement and the post-Maastricht resettlement. That forms the four parts of the book: Part 1 is inter-war, Part 2 is post-war, Part 3 is Maastricht and Part 4 is the Eurocrisis, and I think about the transformation in each of those four periods. And so the book took seven or eight years, rather than three or four years, to try and really uncover all those constitutional transformations across time.
It’s an admirably broad ambit of investigation, and I think it does allow the reader to see these connections that perhaps they wouldn’t draw instinctively. You mentioned how authoritarian liberalism could sound like an oxymoron, and maybe particularly to our listeners who understand liberal democracy as an indivisible concept, or as two indivisible concepts. How significant is it that the term refers to an economic liberalism? And is it the case that this economic liberalism operates in an authoritative manner without the hallmarks of political liberty?
This is a question which could go in different directions. We could think about the conceptual, normative case for liberal democracy, which is not what I’m trying to reject here. I’ll unpack the question a little bit, and start by saying that I don’t think they are indivisible concepts. They are related concepts, however, they come from different traditions covering vastly different time-spans. We think of democracy as emerging from ancient Athens, while liberalism is a much more modern concept. They involve different thinkers, different writers, different practices, so I don’t think they are indivisible. You could of course make a normative argument for their combination, and even then we would have democratic scholars who were sceptical of certain aspects of liberalism, and even liberal scholars who are sceptical of certain aspects of liberalism, you can think about someone like Jeremy Waldron or Judith Shklar. In the book, I’m not dealing with normative or conceptual unpacking, but their materialist developments – how did these concepts appear on the scene. This is to some extent inspired by the tradition of phenomenology, so we are thinking about these as phenomenon rather than as pure concepts. That also means that we are interested in the grey areas in between, rather than just, for example, consent versus coercion, but also issues like persuasion, hegemony, and ideology.
Even if we adopt that more historical and contextual account, the pairing of those concepts has been advanced in particular periods, especially the Cold War period, and I’ve already mentioned the idea of the opposition to Soviet authoritarianism.
Even if we take this post-war period, and this is one of the important points of the book that can be contested, it’s a low intensity democracy that develops, it wasn’t a vibrant democracy.
To use Jan-Werner Müller’s expression, it was a “constrained democracy” that develops after the Second World War. This reduced the range of voices both through formal means, such as party bans or counter-majoritarian institutions, but also informally. An important part of my project is to show how liberal democracy is based on a kind of reduced form of democracy in terms of the decline of parliamentarism, the decline of class struggle, and the deradicalization of politics, which is often associated with the neo-liberal period. But I believe it is a longer phenomenon, if we think about Christian democracy and its dominance in the post-war era, or Kirchheimer’s analysis of the rise of the ‘catch-all Party’ in the 1960’s and so on. So, to offer a definition, the way I approach it is the combination of political authoritarianism with economic liberalism. To address the question about the extent this would apply to a political liberalism, you could, although I don’t, make a case for authoritarian liberalism as having a broader connotation in terms of thinking about the way there are certain restrictions, for example, on freedom of expression. But in the book, I’m primarily addressing economic liberalism and the authoritarian pairing with that.
You contrast the passive authoritarian liberalism of the EU, at least up until the Eurocrisis, with the purer form of authoritarianism in Weimar Germany before Hitler came to power. You have described your reasons behind using the term authoritarian – do you think this is appropriate in relation to the EU, when ostensibly there were predicates of democracy even if it were low intensity as you say, such as fair and free elections? Or do you believe it is necessary to use such strong terminology to draw attention to the socio-economic repression that you claim gestated in this period?
I will start with the point about the harsher form of authoritarianism in late Weimar which is really important.
One of the messages of the book is to critique the standard narrative of democratic excess leading to fascism or National Socialism. The Nazi seizure of power came after the suppression of representative democracy, the by-passing of the parliament, as well as street violence and intimidation – it wasn’t a straight-forward democratic transition.
That’s important because the whole story that we are often told in this post-war period about democracy leading to fascism and therefore needing to be constrained, has to be problematized – it is far from straightforward.
Free and fair elections are absolutely crucial. But again, we must problematize what that means in practice – there must be some genuine choice, some genuine capacity for parties, once in office, to make a difference. The limits that are imposed are partly structural, and partly enacted through limits to the constitutional imagination. First, there are limits to the range of options, and I’ve already mentioned the rise of the ‘catch-all party’ which later becomes a state party cartel; the reduced range of political alternatives arises in part due to deradicalization of the left itself. There are also structural limits that are imposed once a party reaches power, and this is where the constitutional limits become really significant. So free and fair elections are essential, but we have to think about what limits are imposed through the constitutional design once a party gets into power. We have a whole discussion here about counter-majoritarian institutions, the turn to technocracy, the turn to constitutional courts, and we should look at other institutions of the state that may frustrate certain options being put on the table, and of course there is the inter-state system itself. This is where the project of European integration comes in as an additional feature of the constraints that are imposed on domestic politics. This has been outlined by others, often pointing at the Maastricht period as transformative, such as Fritz W. Scharpf or Augustin Menendez. In a recent paper Menendez talks about how the trio of sound money, economic freedom and free competition within the EU combine to affirm private property as, in his words, the sovereign value of European law that constraints the possibilities of political economy that are available at the domestic level. Again, I think that is a really important point and I develop it in the book, but I think that many of its elements can be found latently from the beginning of the post-war resettlement.
Now the term ‘passive’ is important at this stage because I want to convey that this was, at least in part, a voluntaristic acceptance of elite led projects, often referred to as the “permissive consensus”. And then I ask why was there this retreat of the population away from the political sphere, and a quietism of the working class, which Hannah Arendt neatly recounts in her reports of West Germany in the 1950s. I only allude to this in the book, but there are theorists, often associated with the Frankfurt school, who identified in this period a retreat from the public sphere and into consumerism – it’s about the one-dimensional man and fear of freedom. This was in part an escape that was voluntarily undertaken.
That brings me to the last part of the question, which is about whether authoritarianism is intended to draw attention to socio-economic repression. The short answer to that is no, because I want to maintain authoritarianism as a resolutely political phenomenon and not merely one about socio-economic repression. Of course, politics and economics are inextricably tied together, but they are not reducible to one or the other. Indeed, one of the threads running through the book is a rejection of the economism which affects part of left-wing critical theory – it’s a sort of abdication of the political, which I identified in the inter-war period as part of the SDP’s policy of toleration towards the authoritarian liberal cabinet.
Authoritarianism is political – it is related to socio-economic phenomenon, but it must retain that aspect of the autonomy of the political.
The theme of structural and constitutional constraints imposed upon domestic politics brings us nicely on to the rule of law. My question is whether you believe the rule of law as a concept is compatible with, or opposed to, authoritarian liberalism. Is there any way that the rule of law can constrain the phenomenon? Or does the rule of law actually serve the goals of authoritarian liberalism through providing a bulwark of structural constraints against transformations that may become possible through the exercise of democracy?
We need to be very careful about using the concept of the rule of law – we need much more nuance than is often applied. Like liberalism and democracy, rule of law is a highly contested concept, not only by its critics, but also by its adherents. There are various accounts of the rule of law – we can distinguish, for example, rule of law, rule by law, etc. We can think about critics of the liberal tradition of a moralistic way of thinking about the rule of law, like Joseph Raz or Herbert Hart in the Anglo-American tradition of jurisprudence who posed certain sceptical questions to adherents of the rule of law. Judith Shklar was a political liberal who was also wary about the ideological connotations of the rule of law in the sense that it could be separated from politics. So, we have to be careful when we are talking about the rule of law to be clear about the various traditions of the rule of law and rule of law scepticism which cover the range of political positions.
Now, on the question about whether the rule of law is compatible with authoritarian liberalism: it is certainly compatible with the passive or softer variant that I described in relation to the post-war settlement. What is interesting about that period is the turn to lawyers, to courts, and the phenomenon of integration through law. We know the significance of the European Court of Justice in promoting a constitutionalization of the treaties. Increasingly, historians are looking at the activism of lawyers in that era as taking on the mantle of constitution builders.
In terms of softer authoritarianism, where we have a de-politicization and de-democratisation of what are political issues, then the turn to law is entirely compatible with, and indeed it is an aspect of, a certain form of authoritarian liberalism.
This leads to what some have described as a “juristocracy” in more recent decades.
Is the rule of law compatible with the harsher variant of authoritarian liberalism that we saw through the Eurocrisis or inter-war period? That’s a more complex question – to some extent yes, and to some extent no. It depends on what we mean by the rule of law. If we think about, for example, the challenges in the Eurocrisis to the emergency measures and the interventions by the European Central Bank (ECB), there were a number of cases in which it looked like the European Court of Justice was effectively rubber-stamping the accrual of powers by executive or non-democratically representative institutions. We saw this in their imaginative ruling in the Pringle case on the European stability mechanism, in their rulings on the OMT case, and the Weiss case, which by some accounts rubber-stamped activities of the ECB which went beyond its original mandate. Those aspects of authoritarian liberalism were clearly dubious from the rule of law perspective, and they were challenged quite seriously by the German Constitutional Court and other domestic constitutional courts which led to conflicts between domestic courts and the European Court of Justice. In the end it didn’t amount to a great deal, but it showed that there is an important space there for courts to question the exercise of executive powers and whether they can be justified. They force a certain attempt at justification, which then depends on the credibility of the answers given. I would say that in a harsh form of authoritarian liberalism the rule of law can provide something of a bulwark against a completely arbitrary solution. Do courts tend to confirm the exercise of powers? Yes they do, but there are moments when judicial conflict can also shine a light on various dubious exercises of power in accordance with the pre-established rules.
Continuing on the theme of judicial conflict, and the balance between the executive and the judiciary, you discuss in the conclusion to your book the “authoritarian populism” in the last decade that has emerged, notably in Poland and Hungary. You claim that this new phenomenon is materially compatible with the continuation of the post-World War Two settlements, even if perhaps not rhetorically compatible. How would you say that authoritarian liberalism led to a rule of law crisis?
There is compatibility between authoritarian liberalism and authoritarian populism. There is no rupture from the existing dominant paradigm. Of course, there are the difficulties in the practice of expulsion in the case of EU membership and exit itself, so there are certain inconsistent elements which tend to re-enforce a certain status quo. On the contrary, I began to think that these phenomena were mutually intertwined. There is some rhetorical antagonism, but also emulation, from one to the other, if we think for example about the discourse of a Christian Europe associated with Orbán in Hungary that has precedents in the European context, and the turn to a certain populist rhetoric among European elites, for example Von der Leyen’s defence of the “European way of life”. Very recently Michel Barnier, who is so beloved by British ‘Remainers’, argued for more sovereignty and control of borders in his push for influence in the French domestic context. This is like the rhetoric we heard during the Brexit debate.
We have to look beyond rhetoric, although rhetoric is important in the political context, for example the aspect of borders, which isn’t only rhetorical if we look at the thousands who have perished in their attempt to reach Europe. So I see authoritarian liberalism and authoritarian populism as involved in this tango of antagonism, but in a mutual embrace. Having said that, it is not a straightforward causal relationship. I wouldn’t want to say that authoritarianism liberalism straightforwardly led to a rule of law crisis, but there are significant conditions which authoritarian liberalism laid which have been conducive to the rise of authoritarian populism.
To understand that we need to go back to the Maastricht period for the explanations of the rise of populism. In Western Europe, the rise of populism far pre-dates the current conjuncture.
The French context here is very interesting, because the rise of the Front National can be traced to the early 1990s and the referendum when the French voted 51% to 49% in favour of the Maastricht Treaty. We already saw the beginnings of this gap growing between the elites and the people. This was identified by French philosophers at the time, and it was interesting that Marcel Gauchet already identified this wall between the elite and the people, partly as a collapse of the French communist party, which led part of the working class to look elsewhere, but also due to the convergence of the centre-right and the centre-left parties around a centrist economic paradigm. So the rise of populism in Western Europe has to be understood in the context of the collapse of social democracy, the “third way”, neo-liberalism and what would come to be later described as the “Pasokification” of the centre-left with the collapse of socialist parties.
In terms of the Central and Eastern European countries, Maastricht again is crucial because, in that era of accession, there was a swift and brutal transition to market economies from previously planned economies. The swift and in many ways brutal shock-doctrine transformation to neo-liberal economics occurred in the context of the globalization of capital and the increasing spread of private investment. So, if we want to understand the rise of authoritarian populism then it is important to understand the precursor to that phenomenon. In addition to the swift transition to neo-liberalism, relatively little attention was given to democratization in those countries. In a sense this is no surprise as there was already a weakened or minimal form of democracy in the west. Again, there are other factors involved here, I wouldn’t want to reduce it entirely to that. For example, in the recent book, “The Light That Failed”, Ivan Krastev and Stephen Holmes note that liberalism in this period became more hegemonic, meaning it was more coercive and less pluralistic. From a more historical perspective we shouldn’t be surprised, and Karl Polanyi wouldn’t have been surprised, that after this period of commodification and marketization, we would have a second movement reacting to that increased inequality. In a context of a lack of democracy building, it is not surprising that the second movement is undertaken through a more authoritarian moment.
In the conclusion to your book you seem to refrain from offering solutions or recommendations to address the problem of authoritarian liberalism, which I think is probably an admirable quality, as it can be reductive to boil an analysis down to a few recommendations. However, you do argue that the phenomenon was sustained by the disappearance of the practice and discourse of constituent power. So could the re-establishment of what you call the “power to re-establish a new constitutional order” combat authoritarian liberalism? Do you think constituent power can be resuscitated and what would it look like in the 2020s?
I guess what we don’t need is more lawyers offering solutions to political problems. But you are right, some normative arguments are implicit in the book. Making them more explicit would be a different kind of exercise, but one that I may well try to undertake. You picked out an important one which revolves around this idea of constituent power. This is an interesting concept because it has such a global resonance – we can think, for example, about the constituent process in Chile which has excited a lot of commentary and political action.
In the context of my book, it struck me that in the post-war constitutional settlement there is a gradual displacement of the concept of constituent power, perhaps most evidently in Germany because of German re-unification occurring under the radar without any big constitutional debate about constituent power. And if we think about the way constituent power was associated in the late-19th and early-20th centuries with a revolutionary moment, that aspect has been largely set aside. This is a long story which has a lot to do with the failures of Western Marxism, which turned away from revolutionary ambitions by left parties. And in terms of the dominance of critical theory of people like Jürgen Habermas, who in the “end of history” period renounces any possibility of a revolutionary break from capitalism, we get this subduing of the idea of constituent power and the relationship between constituent power and revolution.
Undergirding this transformation in the way the concept is used is a migration of the idea of constituent power away from ideas of the people or of popular sovereignty of class struggle, into the corridors of the constitutional courts and into the language of rights. We might say this is the transformation of the concept, but we could also say this is the death of the concept.
Could this idea be re-established? Yes, but I want to be clear about the obstacles that are in the way. There are formal structural constraints – at the European level, I think it is often underestimated the degree to which the Lisbon Treaty decision of the German Constitutional Court imposes some really serious constraints on constitution making, on upscaling the development of a democracy and constitutionalism beyond the state, through the entrenchment of Germany’s own constitutional identity. But there are also informal constraints, for example, the difficulty of establishing a bottom-up process of democratization across borders, the absence of political channels, a public sphere, and transnational organisations. This requires concrete analysis, not to be simply realistic and not optimistic, but because in a sense we underestimate the potential for change. If we are serious about realising change, we have to identify the route through which change can most likely occur. In the book, the failure of Syriza is placed at the heart of the analysis, the failure to offer a break from the existing system, the failure to mobilize what, at the time, was quite a large degree of solidarity with their cause. I want to be clear about the obstacles and be clear about the failures in order to think about how, in the future, things might develop differently.
For my final question I thought we might take a slightly more philosophical turn, and I think it this related to the slightly more informal obstacles for constituent power and perhaps what can be described as the dangers of revolution. The question is whether you believe authoritarian liberalism has been successful because there is a part of human nature which will always choose physical security and private stability over autonomy and control in the public sphere, for example, through exercising constituent power. In very simplistic terms, given a dichotomy, do human beings choose the rule of law instead of democracy?
This is a really good question with which to end, and by good I mean difficult! First, I would avoid a simplistic or crude dichotomy of alternatives when it is far from clear that it is one or the other. One of the interesting aspects of rule of law and democracy is their tension, but it can be a productive tension and there is an interplay and a mutual dependence. The first part of your question is really challenging, this notion that there is a tendency to choose physical security and private stability over autonomy and public control. I wouldn’t put it in terms of human nature, but yes, material issues are undeniably very significant and as Bertolt Brecht famously said, “first comes bread and then morals”. That is posing it in its most stark form, but one thread in the book that I mentioned earlier is the rejection of crude economistic answers to what are deeply political questions, which can result in a tendency to turn away from political struggle My two favourite philosophers are Marx and Arendt who, to caricature them, capture both aspects of the dichotomy. I’m always tempted to resolve this in favour of Marx with a close eye to the material conditions for the autonomy of the political. The two are combined and we want to avoid reductionism. In order to do that, I think it is helpful to add to Marx and Arendt’s philosophies in the radical democratic tradition. They are important here in the sense of stressing the human capacity for imagination and creativity. And that is probably a good place to end.
This transcript has been edited for length and clarity.
In collaboration with Karen Culver.