More Europe? Law, Rights, and Democracy in Sovereignty-Sensitive Areas of EU Governance

Over the past quarter-century, EU law has expanded dramatically beyond market regulation, and into domains of classic state sovereignty—economic policy, migration, internal security, and constitutional fundamentals at the national level. This has been accompanied by the intense politicization of EU law and policy and has galvanized populist parties across the Member States. This paper, drawn from the conclusion to my edited volume EU Law in Populist Times, argues that the EU law across these sovereignty-sensitive areas demonstrates three common flaws: it is overly complex, with prejudice to the rule law; access to justice (in the European Court of Justice) is inadequate and restricts rights-based challenges to EU policies; and the European Parliament is circumvented by intergovernmental politics. The paper makes related prescriptions for legal simplification; expanded standing in the European Court of Justice; and greater transparency vis-à-vis the European Parliament.

Populist constitutionalism and democratic transformation

The paper argues that some of the current misgivings with constitutional democracy in East-Central Europe are related to the fact that the post-1989 liberal-constitutional project did not find widespread adherence and intractable conflicts with regard to the post-communist societal project have remained crucial political dimensions of many societies. I emphasize that, in this sense, the post-1989 transformations have not ended, and continue to be characterized by enduring contestation over constitutionalism. The paper will start with a brief discussion of pre-1989 legal and constitutional ideas. Second, it will discuss the post-1989 processes of constitution-making. Third, recent illiberal, populist developments will be discussed. A concluding argument is that populist resentment towards post-1989 liberal democratization builds to important extents on culturally rearticulated legacies of non-liberal and conservative understandings of society.

Could Populism be Good for Constitutional Democracy?

Populism is Janus-faced. There is not a single form of populism but rather a variety of different forms, each with profoundly different political consequences. Despite the current hegemony of authoritarian populism, a much different sort of populism is also possible: democratic and anti-establishment populism, which combines elements of liberal and democratic convictions. When we examine the relationship between populism and constitutional democracy, populism should not be considered in isolation from its host ideology. Examples of democratic, liberal, socially inclusive forms of populism quite clearly show that authoritarianism and anti-pluralism are not necessarily the key elements of populism. However, the paucity of democratic populism also suggests that we have to look at factors other than ideology to understand why nativist and authoritarian populism currently dominates the political scene.

Populist Political Parties as Threats or Correctives for Liberal Democracy

Discussion of the global crisis of liberal democracy, which is often framed as an executive-led problem, is also quintessentially a political-party issue. On the negative view, threats to liberal democratic systems range across the activity of authoritarian populist parties in power, subverted mainstream parties such as the Republican Party in the USA or even the Conservative Party in the UK, and the rising electoral support for ‘challenger’ parties including Germany’s (AfD)or the Sweden Democrats. However, many view a positive flip-side in the ‘good’ populism of Spain’s Podemos party, Bernie Sanders in the USA, or even Sinn Féin in Ireland. This talk will discuss political parties as a useful subject to tease out the multiple meanings of populism, the distinctions to be drawn between populist and popular political projects, and the need for constitutional lawyers to develop greater understanding of, and analytical tools for, the political-party dimensions of this debate

Liberal Constitutionalism in the 21st Century

Populists openly and proudly challenge liberalism. Less obvious is whether and how contemporary liberals, especially of the Rawls/Habermas variety, should answer those challenges. Should they reassert the centrality of pluralism as part of the circumstances of justice? Or should “the fact of pluralism” be revisited under the pressure of contemporary political developments? Should liberals rethink the role of higher – constitutional – law in theorizing democratic legitimacy? Is our political age still post-metaphysical?