A. Introduction
Political populism appears to be omnipresent nowadays. From Viktor Orbán’s pledge to build an illiberal state in EuropeFootnote 1 and the Polish assault on judicial independence,Footnote 2 to Narendra Modi in IndiaFootnote 3 and Rodrigo Duterte in the Philippines,Footnote 4 populists are challenging constitutional democracy everywhere. While the bulk of academic discussion of populism has taken place in political science, the legal sciences, and especially constitutional theory, have important contributions to make to the issue. This Article attempts to provide such a contribution by inquiring about the role that public law, as liberal constitutionalism,Footnote 5 has in an era of political populism. Although populism is a global phenomenon, this Article focuses on populism in Europe, utilizing Hungary and Poland—and, to some extent, Turkey—as examples.
Recently, Martin Loughlin identified three main strands of public law, namely, the laws concerning “the acquisition and generation of political power… the institutionalisation of political power, and… the exercise of political power.”Footnote 6 This Article implicitly structures itself along these three strands, albeit in reverse order. Part B provides a definition of political populism as it presents itself in Europe while briefly addressing the third strand of public law—the exercise of political power. Part C illustrates how populists generally challenge the authority of public law, thus addressing the institutionalization of political power. These two sections conclude that populism attacks public law at its root— that is, at its conception of constituent power and thus of the acquisition and generation of political power. Part D addresses the conclusion of the preceding sections by contrasting the normativist and decisionist conceptions of constituent power implicit in constitutionalism and populism, respectively. Accordingly, Part D argues that populists can attack constitutionalism because of the deficient conception of constituent power that underlies constitutionalism. Part E concludes that where populists challenge public law, public law can at some point no longer rely on its own force to fully defend itself. Its authority needs to be re-established from an extra-legal, pre-positive perspective. In an era of political populism, the role of public law is thus as a discourse that can challenge populism by means of the powerful reasons that inhere in public law.
B. Populist politics in europe
Populism is a political concept and must thus be defined politically. A prominent definition characterizes populism as:
[A] thin-centered ideology that considers society to be ultimately separated into two homogeneous and antagonistic camps, “the pure people” versus “the corrupt elite,” and… argues that politics should be an expression of the volonté générale… of the people.Footnote 7
Populism is thin-centered in that it consists of a skeletal conceptual framework that usually attaches itself to more substantive ideologies of the host, such as nationalism or socialism.Footnote 8 It is thus not necessarily a right-wing ideology—as is mostly the case in European politics—but, rather, it is something that takes on various forms and political leanings around the world. Nevertheless, what unites most populists is their exclusive moral claim to being representative of the people and their impulse to neatly frame all criticism directed against themselves as elitist.Footnote 9 This “claim to represent the real or common people and to know their true interests”Footnote 10 is arguably the central tenet of populism.
In Europe, many iterations of populism are exclusionaryFootnote 11 in that they attach to the nationalist, far-right ideologies of the host. The central tenet of this exclusionary populism is that the people are under attack from a global elite that allegedly attempts to undermine their national and cultural identity through immigration, Europeanization and globalization. Accordingly, they advocate political platforms that pursue the curtailment of rights like freedom of religion, the right to asylum, and minority rights.
One may thus already arrive at an answer to the question that this Article poses: Where populists attempt to erode rights, the role of public law is to exercise one of its normal functions—namely, constraining the exercise of political power. Constitutionalist public law scrutinizes political power through the exercise of practical reasoning and checks on political action to ensure conformity with constitutionally entrenched rights. Stopping at this ultimately shallow answer, however, forgoes the question entirely because such an answer only addresses the particular far-right host ideology, rather than populism itself. Similarly, an appropriate answer would also avoid conflating the question of populism with questions concerning judicial review and its merits.Footnote 12 Indeed, there is a much deeper sense in which populism stands fundamentally at odds with constitutionalist public law.
C. Populism and the eroding authority of public law
Not only are populist platforms often at odds with constitutionally entrenched rights, but populists also reject the constraints on political power that emanate from these rights. In short, populism rejects constitutionalism. Populism “deems that nothing supersedes the general will of the people[.]”Footnote 13 The power of courts is thus a significant thorn in the side of many populists. Populists brand courts as enemies of the peopleFootnote 14 and lash out against unelected judges who “overstep[] their authority.”Footnote 15 The populist conception of popular sovereignty favors a politics of immediacyFootnote 16 unmediated by institutions that might interfere with the popular will. Parliamentary representation is deemed legitimate only insofar as it corresponds with what is deemed the volonté générale.Footnote 17 Although in practice populists seemingly “have an opportunistic approach toward constitutionalism,”Footnote 18 selectively endorsing and rejecting aspects of constitutionalism, such a reading makes little sense from a legal perspective. Indeed, the only conclusion from a legal perspective is that populists reject constitutionalismFootnote 19 because do not accept the authority of constitutional law.
Recalling Raz’s conception of authority, authority is legitimate under two conditions. The first condition—the normal justification condition—is that “the subject would better conform to reasons that apply to him anyway… if he intends to be guided by the authority’s directives than if he does not.”Footnote 20 The second condition—the independence condition—provides that “authority is legitimate only where acting by oneself is less important than conforming to reason[.]”Footnote 21
Unsurprisingly, populists seem to reject these conditions with respect to public institutions. Where public institutions’ directives are at odds with the general will, populists would maintain that acting by oneself supersedes the reason at hand—in this case, constitutional legality. Further, for the populist, constitutional legality is not a reason that applies anyway because the general will must necessarily take precedence over any other reason. Populists do not recognize the authority of public law as legitimate, because in their view, the popular will precedes everything, including the constitutional order. In this sense, populism is not politics of the people as the constituted power, but rather an unmediated relationship with the constituent power.Footnote 22 The result is that populists are politicizing the constitution, transforming it into a political topic like any other. Where public law previously represented the frame for political action, it has now become part of the canvas.
Accordingly, populists have, where able, pursued aggressive constitutional politics. After coming into power in Hungary in 2010, FIDESZ immediately started drafting a new constitution that was adopted only a year later. Shortly afterwards, the Hungarian parliament passed an amendment to the constitution barring the Constitutional Court from substantially reviewing constitutional amendments. As long as FIDESZ maintained a parliamentary supermajority, they could enact any law simply by amending the constitution, which they repeatedly did.Footnote 23
The Polish PiS government, despite lacking the constitutional majority that FIDESZ held until 2014 (and holds again since 2018), nonetheless “embarked on a constitutional revolution under the cloak of statutory revision and piecemeal tinkering.”Footnote 24 In 2015, PiS unconstitutionally replaced three judges on the Polish Constitutional Tribunal by overwriting the appointments taken by the Sejm prior to the election. Although the President of the Constitutional Tribunal refused to admit these “anti-judges”Footnote 25 to sit with the Chamber, the President was replaced and the three subsequently took to the bench. The government also refuses to publish judgments that it considers “vitiated by… procedural errors and lack[ing] legal basis.”Footnote 26
Populists do not recognize the authority of public law as legitimate because they believe that the mandate of the general will should supersede considerations of constitutional legality. As illustrated by the examples of Hungary and Poland, public law, which is supposed to regulate the exercise of political action, is drawn into the political sphere through aggressive constitutional politics. The question that arises, then, is: Can public law nevertheless maintain its authority so that it may continue to exercise its normal function?
I. A note on Turkey and constitutional eternity
It seems impossible for constitutionalism to simply assert itself where there are no institutions committed to it, or, more generally speaking, where there is too big a rift between constitutional text and constitutional subject. Countries like Germany and, ironically, Turkey have attempted to fortify their constitutional order against those who want to undermine it from within through constitutional eternity clausesFootnote 27 as well as doctrines of militant democracyFootnote 28 that permit restricting freedom of speech and banning parties that wish to undermine the constitutional order. But, as the recent referendum in Turkey has shown, the promise of the eternal constitution may be in vain. Eternity clauses may protect text, but they cannot protect social and political reality. The idea that public law can constrain politics can only work if politics is willing to be thus constrained. What differentiates Germany from Turkey in this respect is that Germany has a strong constitutional culture—a Verfassungspatriotismus Footnote 29—that anchors constitutional principles to society, while Turkish constitutionalism has had to be lifted from its own grave in almost every decade of its history.Footnote 30 The current Turkish Constitution of 1982 has arguably been in a legitimacy crisis since its inception.Footnote 31 The precariousness of the Turkish constitutional trajectory, in combination with Tayyip Erdoğan’s increasingly black-and-white post-coup populist rhetoric, are arguably central factors that have opened a gap for the introduction of the new presidential system. Where populists have politicized public law—as has been the case in Turkey, Poland, and Hungary—public law has been removed from the safe of constitutional entrenchment. There is no simple constitutional fiat one could rely on in order to assert its authority.
This is problematic for lawyers because lawyers love thinking in terms of legality. They take comfort in the “legal [fiction] that an answer to any issue can be found in the law.”Footnote 32 Accordingly, they take the law as a given and presume the existence of the constitution as the most natural thing in the world. As the previous section has shown, however, constitutions cannot be taken for granted. Where populism erodes their authority, they often fail to bridge the gap between validity and effectiveness, between normativity and facticity. Constitutions—as constitutional text—thus seem to lack the sufficient scope to investigate the question at that this Article concerns itself with. To reach an answer, then, requires moving beyond, or before, the constitution to the concept of constituent power.
D. Schmitt and Kelsen in Budapest
Constituent power is what makes the constitution. Because there is no unified conception of constituent power, two implicit assumptions that were made throughout the previous sections need to be explained and discarded. First, any equivalence between constitutionalism and public law is void outside the specific constitutional frame. Second, assuming that there is a neat separation between the legal and the political is similarly void where there is no constitution to delimit one from the other.
The constitutionalist and populist conceptions of constituent power fundamentally differ from each other. As this Article argues, the reason constitutionalism is so vulnerable to populism lies in its conception of constituent power and the real implications it had on the development of constitutional law in Europe. Public law—in this Article’s previous definition as public law underscored by liberal constitutionalism—can only fulfill its normal function and re-establish authority if it recognizes the weaknesses in its conception of constituent power.
I. Normativism, constitutionalization, and the complacency of legality
Probably the best starting point from which to understand normativism, the constitutionalist conception of constituent power, is Hans Kelsen’s Pure Theory of Law. For Kelsen, “legal science is a science of norms.”Footnote 33 As such, the law is strictly confined to the sphere of Sollen (“ought”) because, in keeping with David Hume, no ought can be logically derived from an is. The law thus presents itself as a self-contained system of norms that derive their authority from a higher norm, resulting in a hierarchy.Footnote 34 The ending point of the hierarchy, where “the chain of authorization runs out”Footnote 35 is where Kelsen locates the Grundnorm—that is, the fundamental norm from which all other norms are derived, but which is not itself derived from any other norm. The Grundnorm is the hypothetical foundation of the legal system upon which the validity of all subsidiary law depends.Footnote 36 The existence of the Grundnorm is simply presupposed because “it does not make sense to ask when it was created, or by whom, or how. These categories simply do not apply to it.”Footnote 37 The question of its origin is one that goes beyond the ambit of the legal sciences: “Constituent power, the will that makes the constitution, is for Kelsen a political and not a legal issue.”Footnote 38
This leads us to the normativist conceptionFootnote 39 of constituent power: Once an order is constituted, once a basic norm is established, the question of constituent power vanishes. Norms derive their validity from other norms, and anything that stands outside the system of norms is incapable of affecting this system. Normativism “fashions itself on the autonomy of legal and constitutional ordering.”Footnote 40 Constituent power, for normativists, is not much more than a myth;Footnote 41 it is akin to the unmoved mover or the big bangFootnote 42 of a legal system. It must have been there, but that is all there is to it. What matters is what it sets in motion.
Within this conception of constituent power, even new constitutions are always founded on and derive their legality from prior constitutions. The German Grundgesetz and its intrinsically Kelsenian conception of constituent power illustrate this well: Article 146, the final Article of the Grundgesetz, states that the Grundgesetz will lose its validity on the day the German people decide on a new constitution.Footnote 43 Constituent power is thus captured within constituted power. A prevalent interpretation goes even further in arguing that the German people’s constitution-making power under Article 146 must be subject to the constraints of the eternity clause under Article 79(3). Essential elements of a future constitution are thus already constituted within the existing order.Footnote 44
The normativist conception of constituent power links up with post-war European constitutionalism in that the latter strived to lock away certain parts of public life from the political sphere by framing them as constitutional. The necessary precondition for this was to prevent the constituent power from “[reasserting] itself from within the constitutional order.”Footnote 45 This required eroding the concept of constituent power as far as possible in order to replace “a constitutionalism based on constituent power with one founded on legality.”Footnote 46
Normativism can be regarded as the basis of the processes of constitutionalizationFootnote 47 that have taken place over the past decades. The positivization of rights and the establishment of the European transnational order are the two most eminent examples of these processes. The positivization of rights in national constitutional orders after World War II—a reaction to the horrors of totalitarianism—was part of the project to remove from the political sphere those parts of public life that were deemed untouchable. What Loughlin coins the rights revolutionFootnote 48 is the judicial unravelling of these rights as abstract norms into concrete legal rules which constitutionalize increasingly larger parts of the public sphere.Footnote 49 Similarly, the Europeanization of the public sphere has taken place by judicial, rather than democratic or political means—on the one hand, by means of the rights jurisprudence of the European Court of Human Rights, and on the other hand, through the constitutionalisation of the European Communities by the European Court of Justice. The latter provides an especially vivid example of how far judicial law-making constitutionalized the European order through the development of the doctrines of supremacy and direct effect and the Court of Justice’s self-empowerment through the back door to conduct de facto judicial review of national legislation.Footnote 50
Normativism is the conceptual foundation for these developments. By framing issues as regulated by constitutionally sanctioned rules, issues could be safely and justifiably withdrawn from the ambit of democratic decision-making. Where constituent power has vanished, there is nothing but the authoritative legal order and the rules that emanate from it. Where the authority of law was presumed on the basis of the legal system’s intrinsic ought qualities, liberal constitutionalist tenets could be “presented as a meta-theory which establishes the authoritative standards of legitimacy for the exercise of public power wherever it is located.”Footnote 51 Constitutionalist norms have legitimacy “not because they have been authorized by a people but because of the self-evident rationality of their claims.”Footnote 52
Consequently, the normativist conception may likely run into problems when confronted with claims of democracy or popular sovereignty. Normativism diminishes the need for constituted order to be founded democratically. Democratic procedures cannot step outside of their legal frame and bring about an exercise of constituent power because constituent power, through the normativist lens, vanishes once an order is established. The processes of constitutionalization, enabled by a normativist conception of constituent power, further exacerbates this tension. In fact, one might suspect that constitutionalization is the result of a fear of democracy revolting against the flourishing of liberal constitutionalism. Indeed, as concerns some of the provisions included in post-war constitutions, Lon Fuller notes that “[O]ne suspects that the reason for their inclusion is… a fear that they would not be able to survive the vicissitudes of an ordinary exercise of parliamentary power.”Footnote 53 Similarly, European integration through law might have simply been a comfortable way to circumvent democratic procedure and “a masterly and opportune substitute for a real constitution… a convenient expedient for politics.”Footnote 54
There is a complacency in the legality-based normativist axiomatic that can be easily exploited. If political issues could be constitutionalized, who is to say that the reverse is impossible? The idea that certain parts of public life could be entirely locked away from the reach of politics by framing them as constitutional is naive and formalistic. To use the words of Martin Loughlin, the consequence of constitutionalization is that “political critique of law can no longer come mainly from the outside; the moralization of law means that political critique must also come from within.”Footnote 55 Populists can exploit this complacency of normativism by juxtaposing a Schmittian, decisionist conception of constituent power.
II. Populism, Schmitt, and the second coming of constituent power
For Carl Schmitt, Kelsen’s ideological adversary, constituent power can never be based on a norm nor can it vanish. The basis of the constitution, in Schmitt’s view, is “a political decision concerning the type and form of its own being.”Footnote 56 The decision, the will, is where is and ought meet, and, consequently, Hume’s problem does not come up.Footnote 57 This decision is made by the people as a political unity.Footnote 58 Accordingly, constituent power is exercised “according to the principle of democratic legitimacy through the free will of the people.”Footnote 59 Democracy, for Schmitt, is the basis of the constitution, as opposed to the constitution being the frame for democracy.
This leads Schmitt to conclude that constituent power does not recede once an order has been constituted. It remains tangible within the constituted order. Schmitt argues that constituent power “is not thereby expended and eliminated, because it was exercised once. The political decision… cannot have a reciprocal effect on its subject and eliminate its political existence. This political will remains alongside and above the constitution.”Footnote 60 For Schmitt, the belief that the transformation of constituent power into constituted power signifies any kind of entropic, irreversible change is a fiction. A constitution is simply an expression of the political will at a certain point in time. The people “can change its forms and give itself continually new forms of political existence.”Footnote 61 What it never does, however, is “[subordinate] itself, its political existence, to a conclusive formation.”Footnote 62
Populism is, albeit implicitly, founded on this decisionist conception of constituent power. Where democracy is not constituted within an order, but stands outside the order—an order it established and may re-establish—populists can present the deconstruction of a constitution as a democratic exercise in its purest form. Populists, in claiming to be the voice of the people, consider themselves to “ultimately not [be] bound by constitutional constraints because [the people are] the source from which the constitution derives its legitimacy.”Footnote 63
Because decisionist constituent power is a formless formative capacity,Footnote 64 it is not bound by any legal principle that emanates from some prior constitution. Accordingly, popular decision can undermine even the most fundamental principles of a constitution like the principle of legality. Ignoring court orders, as in the Polish example, can thus be presented not as a constitutional transgression, but as an exercise of sovereignty—a democratically legitimate decision partially re-founding the constitutional order. Similarly, there is no need for a new constitution to connect to previous ones. The preamble of the new Hungarian Constitution, for example, explicitly declares the Constitution of 1949—which was in force until 2011 albeit in a highly amended form—to be invalid,Footnote 65 potentially leading to ex tunc nullity of all laws based on the previous constitution, including case law from the Constitutional Court.Footnote 66 Populists, in their own view, are not politicizing the constitution—they are simply exercising the constituent power that was naturally vested in the people in the first place. For populists, then, the role of public law is merely instrumental. Public law is not an end in itself and does not institutionalize any objective moral or rational principles. Its role is to serve the popular will.
Decisionism presents a radical inversion of the constitutionalist aspiration to contain democracy in law. In doing so, it exposes a core weakness of its normativist conception of constituent power: How do constitutionalists reconcile their democratic aspirations with the simultaneous preclusion of certain political choices from the democratic realm? How can the people be the sovereign, but at the same time not exercise their sovereignty? Footnote 67 Normativism does not have an explanation for this. It simply “marginalizes the significance of democratic foundation.”Footnote 68 Leaning on the complacency of legality, constitutionalism merely assumes that the order is constituted and there is no escaping it.
If the assumption normativism made was a strong one, one that was manifestly evident, there would be less of a problem. But the strict separation of legal and sociological reality that normativism posits on the back of the is-ought problem is something that can hardly be rationally defended. The law is not automatic; it requires people who believe in its authority to execute it faithfully. The constitution is not a self-executing simulation with fixed parameters, but, rather, a loosely-meshed, highly permeable structure. The human condition of indeterminacy is one that not even the purest of theories of law could eliminate. The plasticity of values and identities produces ever-changing iterations of law that may be homogeneous in text, but are ultimately heterogeneous in effectiveness.Footnote 69 What is not written in a constitution is often just as important as what is writtenFootnote 70 because constitutional practice is just as important as—if not even more important than—constitutional text. Eliding the above-stated problem through the complacency of legality is in itself problematic. Populists can use this deficiency of normativism to exploit the human condition of indeterminacy in its most radical legal form—that is, as the people’s constituent power.
1. Verfassungsvoraussetzungen and public law as discourse
The above conundrum inherent in constitutional democracy is a prominent theme discussed in one form or another in modern constitutional theory. Loughlin and Walker call it “the paradox of constitutionalism.”Footnote 71 Christodoulidis, with some variation, refers to it as “the aporia of sovereignty.”Footnote 72 This problem, then, seems to be the key to the question posited above concerning the authority of constitutionalism and, consequently, to the question of the role of public law in an era of political populism. Within constitutional democracy inheres a tension between constituted and constituent power, between people and institutions, between democracy and law.
Constitutionalists must ultimately accept that this tension cannot be resolved through legal means. Populism creates a political discourse that extends beyond its legal frame, but the legal frame is unable to contain this discourse. Despite all the efforts of constitutionalists, the political realm extends into constitutional matters.Footnote 73 To believe that constitutional rigidity would be able to contain the tension inherent in modern constitutionalism is illusory. At worst, it only exacerbates the tension. James Bryce writes that “[n]othing human is immortal; and constitution-makers would do well to remember that the less they presume on the long life of their work the longer it is likely to live.”Footnote 74 Constitutionalists must accept “the political space [as] incorporating an unresolved dialectic of determinacy and indeterminacy, of closure and openness.”Footnote 75
Ultimately, any constitution rests on conditions that it cannot establish of itself, as famously pointed out by Ernst-Wolfgang Böckenförde, whose dictum is worth being recited at length:
The liberal… secularized state lives by prerequisites which it cannot guarantee itself. This is the great adventure it has undertaken for freedom’s sake. As a liberal state it can only endure if the freedom it bestows on its citizens takes some regulation from the interior, both from a moral substance of the individuals and a certain homogeneity of society at large. On the other hand, it cannot by itself procure these interior forces of regulation, that is not with its own means such as legal compulsion and authoritative decree. Doing so, it would surrender its liberal character… .Footnote 76
The German term Verfassungsvoraussetzungen—constitutional prerequisites—encapsulates the essence of what Böckenförde identified.Footnote 77 The liberal constitution cannot guarantee its own existence because it rests on conditions that are prior to the constitution and thus out of its own reach. Within Böckenförde’s statement lies an implicit acknowledgement that Schmitt had a point in arguing that the people continue to be present within the constituted order as a constituent power. If they do not support the values and the tenets of constitutional democracy, then constitutional democracy cannot survive. The paradox of constitutionalism can thus only be alleviated, but never fully resolved. It is alleviated when the people appreciate the value of constitutionalism and, to frame it in Razian terms, believe that the reasons behind democratic constraints apply to them. The emergence of populism as a political force does not create any new tensions, it merely highlights the tension that is inherent in constitutional democracy in the first place.
But this acknowledgement of Schmitt does not imply that constitutionalists must surrender to populists. Rather, they must abandon the complacency of legality and embrace public law in public discourse. There are strong reasons from an intrinsic perspective for restraining democracy within the constitutional order. But where populists gain enough power to reshape this order, the people are drawn from a constituted into a constituent state where constitutional democracy is unable to defend itself by its own means. Legality can only operate within a positive frame. Where this frame is rejected by participants in political discourse, constitutionalism must be justified by reasons that are prior to legality. Constitutionalists must stop believing that the reasons on which the authority of public law is supposed to rest are self-evident, and instead start embracing as much in political engagement. In an era of political populism, public law is a discourse. As such, it has a powerful role to fulfil in dismantling the populist threat to constitutionalism.
E. Conclusion: A call to arms
Some lawyers might not like the conclusion drawn in this Article because it goes beyond the bubble of legality that the law depends on. Others still might criticize the approach and instead argue the principle of legality is a more fundamental rational that renders questions of constituent power redundant.Footnote 78
But the argument laid out above is, at the bottom of it, a relatively straightforward one: Legality is only an argument within the constitutional system that it structures. Populists question the system and erode the authority of public law. Where this authority is sufficiently eroded, as in Hungary, Poland, and Turkey, legality can no longer be as much of an argument. Accordingly, public law, as constitutionalism, can no longer assert itself by way of the principle of legality. Rather, those who wish to defend public law must assert it in political discourse.
The normativist conception of constituent power takes legality for granted because it presupposes the existence of the frame. Because constitutions, according to normativists, can only arise from prior constitutions, normativists believe that constituent power vanishes once an order is constituted. This is the fundamental weakness of normativism that makes it “a peculiarly inadequate conception of constitutional thought.”Footnote 79 It denies that legal and sociological realities interact with one another. Populists can exploit this weakness by juxtaposing normativism with decisionism, which posits the primacy of constituent over constituted power, and thus of sociological over legal reality.
Rather than surrendering to populism once the bubble of legality has burst, constitutionalists should acknowledge that Schmitt had a point in arguing that where law and sociological reality are out of touch, the law becomes but a piece of paper. What remains is the decision. The conclusion that can be drawn rests in a single, overly lengthy, German word: Verfassungsvoraussetzungen. Constitutionalists must defend public law in political discourse in order to help secure the prerequisites that constitutional democracy needs to survive, but cannot guarantee by its own force. Public law, in this era of political populism, is a discourse. It is not defended in court, it is defended in the streets.
Open access
