Looking at the millenary development of representative government, the problems concerning election that characterise those settings where representation as it typically functions is under question seem to have surfaced already some time in history. Five issues – by no means unprecedented, the distance of their first insurgence from now notwithstanding – were disputed at some point of this long evolution. They are: the principle of rotation in office; the superiority of representatives over voters; the ambiguity of election as a mixed institution; the elusive notion of discussion within a representative assembly; and the hiatus between the government of the people and the wishes of the electorate. The imperative mandate does not seem able to tackle – even less relieve – any of these critical junctions of representative government. Why proposing to restore it then?
At first blush, constitutional courts and populist politicians have little in common. Constitutional judges are quintessential elites – they are, as Alexander Bickel famously put it, counter-majoritarian. That is their purpose and their predicament, their problem and their point.
Populists, by contrast, are often wary of minorities, who in their view threaten to undermine the polity’s identity and thwart what they term “the People’s” will. Populists rail against elites of all sorts, but they rail against constitutional judges with particular venom and vim. Populists and constitutional judges are sharply divided in their outlook and upbringing, their values and aims.
And yet, populists and constitutional courts frequently share something fundamental. Both, at times, defend their efforts through a “thick,” revisionist conception of democracy. Both are accused by their various detractors of being fundamentally antidemocratic. Both issue this response in the name of “the People.”
Illiberalism can be understand as a critical reaction to liberalism. The subject of illiberal criticism are both liberal theories and liberal societies. As Stephen Holmes argues, illiberals or antiliberals are unwilling to examine liberal theories and liberal societies separately, because they assume that liberal societies perfectly embody liberal ideas, therefore failing of liberal societies follow directly from the inadequacy of liberal principles. This paper will discuss the current state of play of both illiberal theories and illiberal societies in East Central Europe.
This first part of the book represents the prolegomena of the book: if the thesis of the book is that a certain transformation of democratic polities leads to a tension between the rule of law and the majoritarian institutions, it is essential to go through the historical evolution of the notion of the rule of law to set the backdrop against which further investigations are conducted.
After the first two chapters that eminently follow the historical development of the rule of law, the third concerns the connection between how societies select those who will hold power (democracy) and how that power is exercised (rule of law), while the fourth and last chapter deals with the crisis of the rule of law within the EU, inquiring whether and how it may be connected to analogous phenomena affecting national institutions.
In the constitutions as well as in theoretical discourses, the concept of the people is closely intertwined with that of sovereignty, but debates have prioritized the venerable cathegory of sovereignty over that of the people, which is thus likely to be reduced to a mere successor of the sovereign state.
A different perspective is afforded by inquiring into how ‘the people’ as such is presented and discussed, departing from the issue of whether it corresponds to a natural entity, or it pertains to the artificial concepts inhabiting constitutional theory. The current malaise of constitutional democracy, involving the people’s relationship with the constitution, views the reappearance of the ficticious claim of the people as a natural entity, with the related question of whether it should be considered a cause, or instead a symptom, of the democracy’s malaise.