A Crafted Gem: Giuseppe Martinico reviews ‘Anti-Constitutional Populism’

M, Krygier, A. Czarnota, W. Sadurski (eds.), Anti-Constitutional Populism, Cambridge University Press, Cambridge, 2022.

Giuseppe Martinico

In 2016, in a seminal article, Luigi Corrias lamented the lack of interest in the topic of “populisms” by constitutional law scholars and constitutional theorists. A few years later, there was a proliferation of such studies. The volume reviewed here stands out from the crowd and offers multiple contributions to the international debate. The volume is divided into five parts, which is enhanced by a comprehensive introduction from Krygier that presents the objectives of the research and anticipates the contents of the contributions. As we will see, the main merit of this book is that it has brought together contributions that are very different in their approach and in the answers they provide to a number of common questions presented by Krygier. The title, contrary to what it may seem, does not anticipate a one-size-fits-all approach; rather, as Krygier reminds us, the populists’ approach to constitutions can be described as either constitutional or anti-constitutional, depending on the viewpoint adopted: 

“Populists of such malicious intent are, then, at once ‘constitutional’ in that they pay much attention to constitutional documents and institutions, but subversively so, for their engagements take forms and have effects that are relentlessly hostile to the values, practices and institutional constraints that were taken to be the raisons d’ȇtre of those institutions, principles and practices. This sort of constitutional but anti-constitutionalist ambition requires not the neglect of those institutions, practices and principles, but their transformation” (p. 6).

This book has the ambition to address several issues arising from the topic of populisms, offering a truly holistic approach. It deals with a range of empirical, conceptual, explanatory and normative issues.  

The first part, entitled “Populisms”, is the most conceptual one in the book. In his chapter, Bojan Bugarič questions the conflict between constitutionalism and populism and the alleged anti-pluralist nature of populism. According to Bugarič this is due to the fact that scholars have mainly focused on right-wing populisms, neglecting the incredible variety that this phenomenon presents. The chapter by Lucia Corso deals with the anti-elitist nature of populism. It reflects upon the relationship between anti-elitism and liberal constitutionalism by making a distinction between soft and hard populism in which the former is compatible with liberal constitutionalism. These two forms of populism differ because:

“[u]nlike soft populism, (hard) populism flourishes where and when the people, not solely the elites, are distrusted. Its core claim is radical anti-elitism. Populism rests on a radical idea of society, where elites are to be neutralised. It exploits the anti-elitist claim of liberal constitutionalism to engage in constitutional reforms. And yet, it overcomes the threshold of liberal constitutionalism by rejecting polyarchy, which, to my knowledge, is the sole possible juncture between anti-elitism and liberalism, and the only sensible completion of the classical theory of democracy” (p. 94). 

Subsequently, Theunis Roux and Richard Javad Heydarian offer two case studies analysing, respectively, the South African situation (detecting two phases of populism) and the system in the Philippines (focusing on “Dutertismo”). Both chapters are not limited to the analysis of their national cases but also offer fundamental comparative and theoretical reflections on the phenomenon of populisms. For instance, these cases clearly show that economic inequality frequently serves as “one of the main drivers of populism” (p. 131) and question the cliché according to which populists would be merely anti-institutional. Actually, these experiences confirm the interest had by populists in controlling the institutions.
The second part of the volume is devoted to “Courts”. Raul A Sánchez Urribarrí deals with the case of Venezuela. He reflects upon the “linkage between populism, courts and the rule of law” (p. 187). Fleck Soares Brandao examines what he calls the “populist judiciary” (p. 226) in Brazil. This experience is particularly interesting as it shows that:

“rather than being an obstacle to bad populism, members of the judiciary can effectively turn into agents of illiberalism even if they are not apparently structurally vulnerable to attacks from the executive. As observed in the impeachment of

Rousseff, even when legal elites might not intentionally articulate or work towards the rise of super-majoritarian or anti-minority forces, the overall political setting and their failure to stand up for constitutional rights might produce the same effects..” (p. 248). 

In her chapter, Eszter Bodnár casts light on the way in which higher courts have been packed or captured by populists in powers in Hungary. She delivers a powerful case study detailing “how a solid institution can be entirely changed in a relatively short time” (p. 255). 

Part Three is devoted to “Anti-Constitutionalism After Post-Communism” and offers a series of studies focusing on the situation in Hungary and Poland. Paul Blokker deals with how conservative populism challenges anti-totalitarian constitutional democracy in Eastern European countries, thus preparing the terrain for the subsequent chapters and galvanising the diachronic comparison. His claim is that “the specificity of conservative populism in East-Central Europe is that it forms an intrinsic part of the struggle over the telos of the post-1989 transformation process” (p. 299-300).

Michał Stambulski explores the Polish context by deploying the concept of populist constitutionalism as a perspective of analysis. His goal is to distinguish “the institutional logic, the economic and ideological background, and the structural conditions for populist constitutionalism” (p. 337). In his contribution, Gábor Halmai avoids defining Hungary as a pure populist scenario, relying on the notion of “false populism” used by Isiah Berlin in his intervention at a conference held at the London School of Economics and Political Science in 1967. With this formulation, Berlin meant “the employment of populist ideas for ends other than those which the populists desired”. Instead of limiting his analysis to the Hungarian case, Halmai also makes a strong argument against “populist constitutionalism” as a concept which risks neglecting the normative dimension of constitutionalism as such.

Part Four deals with “EU Responses” and comprises contribution by Julian Scholtes, Oreste Pollicino, Dimitry Kochenov and Barbara Grabowska-Moroz. Scholtes explores the relationship between constitutional pluralism and autocrats, questioning the argument made by Kelemen, Kochenov, Fabbrini and others that constitutional pluralism and national identity give autocrats arguments to hollow out constitutional democracies. According to Scholtes, accepting this view would mean missing the core message of constitutional pluralism. Instead of renouncing the concepts of constitutional law, such as constitutional identity, we should qualify the use of the “foundational vocabulary of constitutionalism” (p. 428) because “[t]he question is not how to best get rid of the vocabulary that fuels both internal and external populism, but how to manage that vocabulary responsibly” (p. 428).

Pollicino shows that what we are experiencing in the case law of the Hungarian and Polish constitutional courts is also the responsibility of what he calls the “bad teachers” (p. 447), starting with the German Constitutional Court, which is accused of spreading dangerous techniques (such as ultra vires control and national identity control) which were later explored and abused by illiberal courts. Kochenov and Grabowska-Moroz stress the extent of the insufficiency of the EU response to the violations of the rule of law and other fundamental values by populists. Indeed, in their own words: 

“The same supremacy of EU law was not able to stop the rule of law backsliding in Member States resulting from the constitutional populism offered by their leaders and cheered on by large sections of the general public. The rule of law is forgotten in both respects” (p. 485). 

Finally, Part Five includes two “Concluding reflections” developed by Adam Czarnota and Wojciech Sadurski. Czarnota goes beyond the liberal understanding of constitutionalism and considers its republican and popular variants. He then identifies some sources of constitutional populism in liberal constitutional contexts, namely legal constitutionalism (perceived as “elitist and anti-democratic” (p. 499), the appeal to identity, and economic exclusion. The conclusion is that: 

“Populist movements do not develop new ideas but graze on old ideas such as sovereignty of the people, democracy and active citizenship. These belong to the standard vocabulary of democratic political theory. It looks as though at the moment populist political practice is more developed than theory, but that does not mean that the latter will not be created. Potential development of populist constitutionalism as theory will depend on populist jurisprudence” (p. 504). 

The chapter by Sadurski adopts a different perspective. He basically makes three points, namely on the nature (discursive or institutional) of populism, on the role of judges, and on the role of the EU in challenging the rise of populism in its Member States. Indeed, by framing all the literature in this way Sadurski manages to stress the variety of approaches (discursive, for instance, as discussed by Corso; institutional, as covered by Blokker; and hybrid as defined by Bugarič) that characterise the contributions included in the collection. As Sadurski clarifies, however, these approaches sometimes tend to overlap although the distinction is “epistemically useful” (p. 520). Looking at the courts, Sadurski highlights the variety of instruments used by populists against judges and emphasizes that judicial resistance is insufficient without the support of civil society. Finally, adopting a holistic perspective, Sadurski stresses the developments made in the EU’s fight against populism, but at the same time he is aware that this does not seem to be enough for now. Against this background, non-captured courts “have responsibilities not only to their own populations, but also to the European construction as a whole, and to those Europeans who try to resist populism in their countries” (p. 540).

Richness of analysis characterises this book. There is neither a singular answer to the questions posed at the beginning of the volume nor a single approach to populism – this results from an express choice by the editors. Indeed, the main merit of this volume is that it gathers not only examples from different geographies (confirming the importance of the context, as stressed by Bugarič in his chapter) but also contributions that can be traced back to all the perspectives that currently exists in the academic debate.

If one is simplifying, it is possible to identify at least three approaches to the issue of the relationship between populism and constitutionalism. The first approach is populism versus constitutionalism and is endorsed by authors such as Pinelli, for example. In this reading, there is a conflictual relationship between these two concepts, which are depicted as antithetical categories. This first view corresponds to a certain extent to the idea endorsed by political scientists such as Mény and Surel according to whom constitutionalism is inevitably at odds with populism because of its “institutional” and pro-rule of law nature,. Consequently, populism is seen as a challenge and a threat to the values of constitutionalism.

The second approach is constitutionalism and populism: according to this view, it is possible to say that constitutionalism and populism share something, in the sense that they are both based on a profound sense of distrust towards political power. In 2016 Corrias suggested that it is possible to say that populists use categories belonging to a particular constitutional tradition, namely the revolutionary one. These considerations inevitably make the chemistry between populism and constitutionalism more difficult to read in antithetical terms. Finally, there is a third strand in the literature – populism as constitutionalism — which comprises those authors who write of “populist constitutionalism” or “constitutional populism”. There may be different reasons for employing these formulae. Blokker, for instance, denotes “populist constitutionalism” as the constitutional project of illiberal democracies. For Alterio “constitutional populism”  means the attempts made to constitutionalize some of the claims, especially in terms of direct or participatory democracy, made by populists in Latin America. These authors wish to study populism not as a mere threat but as a symptom of a broader crisis of constitutional democracy, and thus as a window of opportunity to change and reinforce it. 

In conclusion, this volume is the best in its field at reflecting the variety of positions existing in the current debate on “the relationships between populism and constitutionalism, and particularly the impact of populism in power on constitutionalism” (p. 495). Probably not all the questions raised by Krygier in the introduction are answered; in particular those relating to the normative dimension (i.e. what should we do to save constitutional democracy?) are perhaps less developed than others. Again, this probably depends on the fact that, for some of the contributors, populism is not necessarily a threat. Therefore, this cannot be a criticism of the three curators who have managed to craft a gem. Indeed, there is no doubt that this work is going to be a milestone in the literature; it is a book that you absolutely must buy for your library.  

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