Democracy, Populism and the Authority of the Constitution

The essay argues that constitutionalism is generated and underpinned by a specific spirit, that constitutes the fundamental point of the constitutional enterprise. That spirit is hostility to arbitrary power. The spirit of constitutionalism is under sustained attack in many countries, prominent among them Poland and Hungary, and it needs defence. The essay explores the various available relationships between letter and spirit, including those generated by contemporary ‘abusive constitutionalism‘ as it is practised in Poland and Hungary. It also suggests some kinds of responses appropriate for scholars, lawyers, and citizens, in response to this defiling of the spirit of constitutionalism.

The literature on the rule of law, and especially the debate over the constitutional implications of populism, tend to treat democracy and the rule of law as opposing values. This paper argues that this opposition is misconceived for it fails to account adequately for the ways in which democracy depends upon the rule of law for its integrity and efficacy. The rule of law enables democratic action - it does not merely or even principally constrain it. The paper will rehabilitate the notion of rule by law, suggesting that, to the extent that we have denigrated it, we have ignored the most important and distinctive dimension of the rule of law. Drawing upon examples from the CEE, the paper argues that populist governments often ignore the principles and institutions that maintain democracy‘s integrity. In their neglect for the legal infrastructure the sustains democratic responsibility, populists are not simply bad constitutionalists - they are bad democrats.

The presentation presents the results of research conducted within the project “Legal Epistemic Authority in Poland“ and fits into the framework of cognitive constitutionalism. The qualitative interviews with former judges of the Polish Constitutional Tribunal will be analysed in terms of the basic cognitive categories they used in their everyday work. Combining the work of a judge with the position of an academic professor, which is present in the narratives of the interviewed judges, resulted in perceiving judicial activity as similar to that of an academic. This determined the concept of constitution, which was seen as a research object that was treated as external and intellectual. In contrast, the concept of constitution present in populist narratives is treated as a relational political object and embodied in institutional practices and group interests. Paper intends to demonstrate the dynamic relationships and mutual influences that can be found by comparing these concepts.

In the paper I will defend the following thesis: What is happening in Poland and some other Central and Eastern European (CEE) former communist countries is not constitutional breakdown or backsliding, but rather constitutional tectonic movements that reflect the development of some new elements in constitutionalism in the region. In other words I will try to show some alternative ways of interpreting the present situation in CEE countries with special reference to Poland.

Populism is often presented in opposition to the liberal international order in general and the European Union in particular. It will be argued here, on the contrary, that populism is an inflection of the liberal order, purporting but failing to fill in the void that this order has created and maintained in its own authoritarian fashion. The relationship between populism and liberalism may turn out to be less one of antagonism than of mutual dependence.