In this paper, I argue that the contemporary conservative, populist engagement with the law in a number of East-Central European societies is – at least in part – a reaction to what is portrayed as legal fundamentalism or an excessive juridification of society. Populism is to an important extent driven by the opposite idea, that is, it seeks to significantly reduce the presence and status of public and constitutional law throughout society. First, I will discuss legal fundamentalism and the juridification of society in conceptual terms. Second, I will engage with populism and public law, and the different dimensions of the populist critique on legal fundamentalism and juridification. Third, I will discuss the contrasting proposals populists provide for an alternative (post-)legal order, and its problematic understanding of legality and the rule of law.
The paper deals with recent deviations from the shared values of constitutionalism towards a kind of ‘populist, illiberal constitutionalism’, particularly in East-Central Europe. The theoretical question that these backslidings raise is whether populism and illiberalism are reconcilable with constitutionalism at all. The paper concentrates on a particular version of populism, which is nationalist and illiberal, and mainly present in the countries of East-Central Europe. Most are also members of the European Union, a value community based on liberal democratic constitutionalism. The paper concludes that the term ‘populist constitutionalism’ is an oxymoron altogether, consequently, it equates constitutionalism with liberal democratic constitutionalism. This does not mean, however, that constitutions cannot be illiberal or authoritarian. But in illiberal polities, just like in the East-Central European ones, there is no constitutionalism.
There seem to be left-wing and right-wing versions of populism. Most academic writing has focused on the right-wing versions. Both right-wing and left-wing populist movements are antiliberal and anticosmopolitan, with right-wing movements more comprehensive in their anticosmopolitanism than some left-wing movements. Right-wing populism is a movement of democracy against all versions of liberalism considered as a political theory premised upon ideas about the inherent equality of all people. Left-wing populism is different. Its program is to realize one specification of liberalism – the social-welfare constitutionalism that political elites promised. The movements share these attributes because the attributes flow from roughly the same sorts of reasons. Contemporary populism originated in the political economy of the early twenty-first century, and in the party structures associated with that political economy.
In the new political world in which left and right are no longer the meaningful anchor points they once were, cosmopolitans have a completely different set of political interests than the localists. From trade and immigration to universal values and tolerance of difference, cosmopolitans throw open the boundaries of cozy and closed groups while localists defend the virtues of community. Parties that have been built around a left/right continuum cannot cope with a shift to a cosmopolitan/local continuum. Instead, the traditional left/right parties are rent from the inside by this divide. Both left and right parties have cosmopolitans and localists within them, and the war between the cosmopolitans and the locals that is currently taking place within the traditional left/right parties has weakened them immeasurably, causing many of them to collapse. Out of the wreckage of these failing parties come spectacularly bad electoral choices.
Populism is now a major global force, challenging our vision of constitutionalism but not upending it completely. By reasserting the importance of a political community, populism in our era provides an important corrective to globalism. Drawing on a forthcoming book with Aziz Huq, this paper argues that populism can fit in the framework of liberal constitutional democracy, on which it ultimately depends, but emphasizes the majoritarian elements over the liberal ones. The gravest challenge of populism is to the bureaucratic rule of law, and the outcome of this conflict will determine whether constitutional democracy lives or dies in any particular context.