The article departs from the discussion of constitutional mobilisation—the ‘process by which social actors employ constitutional norms and discourses to advocate for constitutional change’—to introduce the concept of constitutional resistance—the public invocation of constitutional norms and principles, in defence of a distinctive view of constitutionalism, in opposition to governing or reform action by the authorities. Constitutional mobilisation and resistance are theorized on an interdisciplinary and conceptual basis, suggesting that the study of the critical role of societal actors in constitutional politics and in ‘constituent conflicts’ remains so far underexplored. The analysis of constitutional resistance is particularly relevant in the contexts of authoritarian societies or democratic societies that face increasing populist and authoritarian challenges. The article first briefly explores various scholarly approaches that provide considerable contributions for the development of a political sociology of constitutional mobilisation. It subsequently discusses constitutional mobilisation and focuses in particular on constitutional resistance, a so far undiscussed dimension of constitutional mobilisation, exemplifying the latter by briefly exploring the cases of Italy and Poland.

The role of social movements and civil society actors in rights advancement has been frequently emphasised. The assumption is that legal mobilisation by civil society actors works towards the extension of rights and the emancipation and advancement of justice for distinctive (minority) groups in society. While traditionally, socio-legal attention on social movement and civil society actions around rights promotion was particularly prominent in the US, for some time now the European context has also been approached from such a socio-legal lens. However, a one-sided, liberal–progressive understanding of social mobilisation around rights has, importantly, been put to the test by recent manifestations of societal actors. Conservative actors tend to (1) promote a restrictive interpretation or a radical reinterpretation of existing rights (e.g. abortion, free speech), (2) limit the diffusion of new rights (e.g. the rights to euthanasia or legalizing surrogate maternity) and/or (3) call for the interruption of the further extensions of rights (e.g. with regard to same-sex marriage, LGBTIQ issues). The analysis of legal mobilisation by such conservative right-wing actors indicates that mobilisational repertoires are strikingly similar to those of liberal actors. This article will discuss the notions of civil society and legal mobilisation and call for a rethinking of these concepts, in part because of the increasing manifestation of societal actors that are in contrast to the traditional liberal paradigm. The article will subsequently engage in a detailed study of one such actor – the Polish legal think tank Ordo Iuris (OI) – with regard to its third-party or amicus curiae interventions at the European Court of Human Rights (ECtHR), stressing the difference of orientation of such interventions from those of liberal actors and also indicating dimensions of ambivalence and similarity in their approaches.

Counter-revolution by law in Hungary and Poland – Populism as a distinctive political project that mobilises anti-liberal conservative forces in society – Populist attempt to dismantle liberal-constitutional institutions in the name of a conservative, illiberal project – Populist critique of legal fundamentalism, understood as an excess of liberal legal norms, as a key dimension in the conservative, populist project

The intense engagement of populists with constitutionalism—a phenomenon originally related to experiences in Latin America—is increasingly evident in some of the new European Union member states. But the populist phenomenon is clearly not confined to more recently established democracies. Populist constitutionalism stands for a number of distinctive tendencies in constitutional politics and practices which frequently are in tension with—and may even threaten—fundamental values, human rights, representative democracy, and the rule of law. The relation between populism and constitutionalism is, however, not necessarily one of anti-thesis, but rather manifests itself in distinctive ways, depending on specific contexts and variations. In this special issue, we argue that populist constitutionalism is best analyzed in a comparative, and historically and contextually attuned manner. The special issue wants to contribute to understandings of populist constitutionalism, which are both theoretically more robust and able to comparatively reflect on a diversity of “really existing” cases. The various contributions discuss central dimensions to the populist phenomenon. These pertain in particular to: (a) The varieties of populist engagement with constitutionalism; (b) a deeper understanding of the populist mindset; (c) the position-taking and reaction of constitutional scholars to populism; (d) the complex relation and overlap of populism with illiberalism and authoritarianism; and (e) the central nature of constituent power in populist projects.

Populist constitutionalism is an increasingly discussed topic, but so far the analysis of the interrelation between populism and constitutionalism lacks a more systematic and comparative approach, able to bring out significant variety. Most of the recent literature on the phenomenon focuses on (right-wing) populism as a threat to constitutional democracy. This Article sets out to contribute to a more comparative and comprehensive discussion of the relation between varieties of populism—situated on a continuum from left- to right-wing, but also from national to transnational—with varieties of constitutional projects. The objective of this Article is threefold. First, I argue that it is problematic to consider legal constitutionalism as exhausting the possibilities of constitutionalism. Second, if populism is reduced to right-wing projects and as an unequivocal threat to liberal democracy, it becomes difficult to distinguish between dissimilar manifestations of populist projects, in particular regarding constituent politics. Third, while hardly any attention has been paid to constitutionalism and populist claims on the transnational level, in the European context, transnational forms of populism and constituent politics manifest themselves frequently, articulating an incisive critique on the European constitutional and political status quo, and contributing to a re-imagination and democratization of the European constitutional reality.

The populist challenge to constitutional democracy—and constitutionalism as its modus operandi—is significant and raises deep questions regarding the nature of modern democracy. A crucial question pertains to the challenge that our existing (but eroding) democratic systems faces. The way we perceive this challenge is essential for our descriptive and prescriptive contributions. The first, perhaps most widely embraced view, is to perceive populism as a ‘disease’, ‘deviation’, or ‘pathology’ of existing democracy. A second view understands contemporary ‘neo-populisms’ rather as one particular instance of a rather profound, complex, and long-term set of transformations of democracy. Where we stand on this matter is of great importance, as the feasibility and potential success of our responses and solutions depend on our description of the problem. Many of the contributions to this special issue clearly go beyond the current state-of-the-art, in which populism and constitutionalism are often seen as mutually exclusive categories. The special issue provides ample reflection on intrinsic problems in constitutional democracy itself, and, taken as a whole, stimulates a self-reflexive and historically informed scrutiny of the modern projects of liberal democracy and constitutionalism, so as to provide due acknowledgement of the political and conflictive origins of the project, as well as of its current deficits.

In the literature on emergent populism and nationalism in post-communist Eastern Europe, two main assumptions regarding the origins of the phenomenon can be distinguished. One line of argumentation holds that the unexpected resurgence of populism and nationalism after the collapse of the communist regimes is a direct result of the ‘valley of tears’ that characterizes the post-communist transformation from a communist, centrally planned system, to a democratic, market society. The ‘social costs’ of the transition and the still ‘incomplete’ nature of modernization make a large number of ‘modernization losers’ susceptible to mobilization by populist movements. The emergence of populist, nationalist movements should be understood as a radical form of protest against the degradation of the quality of life and widespread social dislocation and unemployment. A second explanation for the phenomenon is that populism and its naturalist, exclusivist portrayal of the nation is the result of the re-emergence of deeply, culturally ingrained perception of social belonging, and of the foundations of the polity, in which the social whole is considered prior to the individual, and in which local culture is valued differently from Western culture. In this explanation, the structural difference between Eastern and Western Europe is emphasized, a difference that can only be overcome by the former adopting the political model of the latter.