Abstract
The paper deals with recent deviations from the shared values of constitutionalism towards a kind of ‘populist, illiberal constitutionalism’ introduced by Hungary’s new constitution in 2011. The populism of FIDESZ was directed against all elites, including the ones that designed the 1989 constitutional system (in which FIDESZ also participated), claiming that it was time for a new revolution. This is why PM Viktor Orbán characterized the results of the 2010 elections as a ‘revolution of the ballot boxes’. His intention with this revolution was to eliminate all checks and balances, and even the parliamentary rotation of governing parties. His vision for a new constitutional order—one in which his political party occupies the centre stage of Hungarian political life and puts an end to debates over values—has now been entrenched in the new constitution. The paper argues that this current Hungarian constitutional system was made possible by FIDESZ’ anti-pluralist nationalist populism, but is not necessarily based on a true commitment to expressing the will of the people via ‘illiberal constitutionalism’. The populist government rather misuses the country’s lack of constitutional culture. Adherence to constitutional patriotism would mean that FIDESZ would have to endorse what John Rawls once called ‘constitutional essentials’. The core of this kind of constitutional patriotism is a constitutional culture centred on universalist liberal democratic norms and values. Instead, the current Hungarian constitutional system is confronted with unconstitutional patriotism, a kind of nationalism that violates constitutional essentials in the name of ‘national constitutional identity’.
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Notes
See a similar description of the new East-Central European populism in a recent paper by Bojan Bugaric (Bugaric 2017). Bugaric claims that this anti-liberal populism is not necessarily anti-democratic. In this article, I argue that it is.
See Pierre Rosenvallon, Penser Le Populisme, Lecon Inagurale A Collége de France, 18. 2011. Thanks to Théo Fournier, my PhD researcher at EUI, for drawing my attention to this.
Rosenvallon talked about this in a program that aired on Radio France on 2 November 2016. ‘Le Populisme, Ou Le Retour Des Passions Politiques?’, France Culture https://www.franceculture.fr/emissions/linvite-des-matins/le-populisme-ou-le-retour-des-passions-politiques [accessed 8 September 2017]. I thank Théo Fournier for bringing this to my attention.
This does not necessarily apply to all forms of leftist populism, such as the one in Venezuela both under President Chávez and Maduro. On the other hand, Evo Morales’ populism involves inclusionary identity politics, which was also one of the aims for drafting a new constitution for Bolivia. See (D'Eramo 2017, 132).
See the opposite view Corso (2014).
Analysing Thomas Mann’s novel Mario and the Magician, written in 1929, Parker draws the conclusion for today that ‘the point is to get out and take part in politics ourselves, not looking down from a “higher” pedestal, but on the same level with all of the other ordinary people’ (Parker 1993, 583). A similar message can be detected in the interview with Mark Lilla, a conservative liberal professor of the humanities at Columbia, who on the day after Donald Trumps presidential victory declared: ‘One of the many lessons of the recent presidential election and its repugnant outcome is that the age of identity liberalism must be brought to an end’ (Lilla 2016). Later, in an interview on the topic of the most effective tools against the President’s populism, he emphasized the importance that opponents find a way to unify: ‘we have to abandon the rhetoric of difference, in order to appeal to what we share’ (Remnick 2017).
See (Gardbaum, 2013) about the new model. This model has also come to be known by several other names: (1) ‘weak-form of judicial review’ (Tushnet 2003), or just ‘weak judicial review’ (Waldron 2006), ‘the parliamentary bill of rights model’ (Hiebert 2006), ‘the model of democratic dialogue’ (Young 2009), ‘dialogic judicial review’ (Roach 2004), or ‘collaborative constitution’ (Kavanagh 2016).
See (Bugaric 2017). Unfortunately, Bugaric does not define popular constitutionalism. Jan-Werner Müller, who also differentiates between populist and popular constitutionalism, admits that we do not know exactly what popular constitutionalism is. See Müller (2014). Without exact guidelines one can think about the Swiss direct democracy, or the (more or less failed) Irish and Icelandic constitutional reform experiences with strong people’s participation. Abouth these latter attempts see Suiter et al. (2018), and respectively (Bergsson 2018).
See these ‘essential characteristics’ of constitutional democracy in Rosenfeld (2001, 1307).
It is the irony of fate that due to these more stringent conditions, the only referendum that the Orbán government initiated—one against the EU’s migration policy—failed. On 2 October 2016, Hungarian voters went to the polls to answer one referendum question: ‘Do you want to allow the European Union to mandate the relocation of non-Hungarian citizens to Hungary without the approval of the National Assembly?’. Although 92% of those who casted votes and 98 of all the valid votes agreed with the government, answering ‘no’ (6% were spoiled ballots), the referendum was invalid because the turnout was only around 40%, instead of the required 50%.
For the original, Hungarian-language text of Orbán’s speech, entitled Nem leszünk gyarmat! [We won’t be a colony anymore!] see, e.g. http://www.miniszterelnok.hu/beszed/nem_leszunk_gyarmat_The English-language translation of excerpts from Orbán’s speech was made available by Hungarian officials, see, e.g. Financial Times: Brussels Blog, 16 March 2012, at: http://blogs.ft.com/brusselsblog/2012/03/the-eu-soviet-barroso-takes-on-hungarys-orban/?catid=147&SID=google#axzz1qDsigFtC.
For a detailed analysis of the decision, see (Halmai 2018).
This idea is also shared by a part of the, otherwise not populist, French constitutional doctrine, influenced by Rousseau’s general will. This is the reason that the representatives of this doctrine hold that during a constitutional transition a referendum is sufficient to legitimate a new constitution. See the French Constitutional Council’s approval of De Gaulle’s 1962 amendment to the 1958 Constitution, ignoring the Constitution’s amendment provisions. Thanks to Théo Fournier, who called my attention to this.
Also Ruth Gavison calls to celebrate populism as the ‘core of democracy rather than condemn it as anti-democratic’. She refers to Michael Kazin’s book on The Populist Persuasion (Cornell University Press, 2017) as a persuasive analysis of populism as an authentic political movement (Gavison 2017).
Similarly, Tjitske Akkerman argues that not populism, but authoritarian nationalism, is the real threat to democracy (Akkerman 2017).
Müller distinguishes the deeply problematic populist constitutionalism from a legitimate form of popular constitutionalism. Regarding the distinction, he refers to Brettschneider (2015).
Alon Harel argues that in Israel, populism rests on the essentialist characterization of citizenship. See (Harel 2017).
Besides the proposition that a dictatorship can be democratic, also the claim that the use of the constitution as an instrument is a sufficient condition of constitutionalism is highly contested. While most of the ‘really existed’ ccommunist regimes used constitutions to legitimise their systems, the current Polish populist regime, which does not have a two-thirds majority in parliament, uses extra-constitutional tools to dismantle constitutional democracy.
See, for example, the following definition of constitutionalism in the Stanford Encyclopaedia of Philosophy: ‘Constitutionalism is the idea… that government can and should be legally limited in its powers, and that its authority or legitimacy depends on its observing these limitations’. (https://plato.stanford.edu/entries/constitutionalism/). In the legal scholarship, Stephen Holmes asserts that the minimalist vision of constitutionalism is achieved if the following requirements are met: the constitution emanates from a political decision and is a set of legal norms; the purpose is ‘to regulate the establishment and the exercise of public power’; comprehensive regulation; constitution is higher law; constitutional law finds its origin in the people (Holmes 2012).
In contrast, others also regard other models of constitutionalism, in which the government, although committed to acting under a constitution, is not committed to pursuing liberal democratic values. See for instance (Tushnet 2016). Similarly, Gila Stopler defines the state of the current Israeli constitutional system as ‘semi-liberal constitutionalism’. Cf. Stopler (2017).
Contrary to my understanding, Thio also talks about ‘constitutionalism’ in illiberal polities.
There are two subcategories distinguished here: the Iranian, where Islam is granted an authoritative central role within the bounds of a constitution, and the Saudi Arabian, where Islam is present, without the formal authority of modern constitutionalism.
In 2009, 51% of Hungarians disagreed with the statement that they were better off since the transition, and only 30% claimed improvements. (In Poland 14% and in the Czech Republic 23% detected worsening, and 70 and 75%, respectively, perceived improvement.) Eurobarometer, 2009.
In an interview on Hungarian public radio on 5 July 2013 Prime Minister Viktor Orbán responded to European Parliament critics regarding the new constitutional order by admitting that his party did not aim to produce a liberal constitution. He said: ‘In Europe the trend is for every constitution to be liberal, this is not one. Liberal constitutions are based on the freedom of the individual and subdue welfare and the interest of the community to this goal. When we created the constitution, we posed questions to the people. The first question was the following: what would you like; should the constitution regulate the rights of the individual and create other rules in accordance with this principle or should it create a balance between the rights and duties of the individual. According to my recollection more than 80% of the people responded by saying that they wanted to live in a world, where freedom existed, but where welfare and the interest of the community could not be neglected and that these need to be balanced in the constitution. I received an order and mandate for this. For this reason the Hungarian constitution is a constitution of balance, and not a side-leaning constitution, which is the fashion in Europe, as there are plenty of problems there’. See A Tavares jelentés egy baloldali akció (The Tavares report is a leftist action), Interview with PM Viktor Orbán, 5 July 2013. Kossuth Rádió. http://www.kormany.hu/hu/miniszterelnokseg/miniszterelnok/beszedek-publikaciok-interjuk/a-tavares-jelentes-egy-baloldali-akcio.
After Dolf Sternberger’s and Jürgen Habermas’ conceptions of constitutional patriotism at the end of 1970s and 1980s, respectively, both of which have been answers to particular German challenges, Jan-Werner Müller developed a new theory of the term, concentrating on universal norms and constitutional culture. See Müller (2007).
In 2016, the Orbán government argued with Hungary’s ‘national constitutional identity’ to defy the resolution of European Council to relocate asylum seekers within the Member States of the EU. See Halmai (2017b).
See the results of the research project ‘Negotiating Modernity’: History of Modern Political Thought in East-Central Europe, led by Balázs Trencsényi, and supported by the European Research Council, https://erc.europa.eu/“negotiating-modernity”-history-modern-political-thought-east-central-europe.
Christian Welzel in his recent book argues that fading existential pressures open people's minds, making them prioritize freedom over security, autonomy over authority, diversity over uniformity and creativity over discipline, tolerance and solidarity over discrimination and hostility against out-groups. On the other hand, persistent existential pressures keep people's mind closed, in which case they emphasize the opposite priorities. This is the utility ladder of freedom. Cf. Welzel (2013).
Schiefer et al. (2013).
As Ulrich Preuss argues, the satisfaction of the basic economic needs of the populace was so important for both the ordinary people and the new political elites that constitutions did not really make a difference. See Preuss (1993, 3).
Cf. Offe (1994, 15).
See Albert (2008).
See the reviews on Blokker (2013) by Jiri Priban and Bogusia Puchalska in ICONnect. www.iconnectblog.com/2013/09/book-reviewresponse-paul-blokker-jiri-priban-and-bogusia-puchalska-on-civic-constitutionalism.
Dorothee Bohle and Béla Greskovits state that East-Central European democracies had a ‘hollow core’ at their inception. See Bohle and Greskovits (2012).
See Preuss (1993, 3).
As Jan-Werner Müller rightly argues, it is not just liberalism that is under attack in these two countries, but democracy itself. Hence, instead of calling them ‘illiberal democracies’ we should describe them as illiberal and ‘undemocratic’ regimes. See Müller (2016a).
In a speech delivered on 26 July 2014 before an ethnic Hungarian audience in neighbouring Romania, Orbán proclaimed his intention to turn Hungary into a state that ‘will undertake the odium of expressing that in character it is not of liberal nature’. Citing as models he added: ‘We have abandon liberal methods and principles of organizing society, as well as the liberal way to look at the world… Today, the stars of international analyses are Singapore, China, India, Turkey, Russia…. and if we think back on what we did in the last four years, and what we are going to do in the following four years, than it really can be interpreted from this angle. We are… parting ways with Western European dogmas, making ourselves independent from them…If we look at civil organizations in Hungary,…we have to deal with paid political activists here…[T]hey would like to exercise influence… on Hungarian public life. It is vital, therefore, that if we would like to reorganize our nation state instead of the liberal state, that we should make it clear, that these are not civilians… opposing us, but political activists attempting to promote foreign interests…. This is about the ongoing reorganization of Hungarian state. Contrary to the liberal state organization logic of the past twenty years, this is a state organization originating in national interests’. See the full text of Viktor Orbán’s speech here: http://budapestbeacon.com/public-policy/full-text-of-viktor-orbans-speech-at-baile-tusnad-tusnadfurdo-of-26-july-2014/.
The category of ‘abusive constitutionalism’ was introduced by David Landau using the cases of Colombia, Venezuela and Hungary. See Landau (2013). Abusive constitutional tools are known from the very beginning of constitutionalism. The recent story of the Polish Constitutional Tribunal is reminiscent of the events in the years after the election of Jefferson, as the first anti-federalist President of the USA. On 2 March 1801, the second-to-last day of his presidency, President Adams appointed judges, most of whom were federalists. The federalist Senate confirmed them the next day. As a response, Jefferson, after taking office, convinced the new anti-federalist Congress to abolish the terms of the Supreme Court that were to take place in June and December of that year, and Congress repealed the law passed by the previous Congress creating new federal judgeships. In addition, the anti-federalist Congress had begun impeachment proceedings against some federalist judges. About the election of 1800 and its aftermath, see Ackerman (2007).
At a conference in the Polish town of Krynica in mid-September 2016, Orbán and Kaczyński proclaimed a ‘cultural counter-revolution’ aimed at turning the European Union into an illiberal project. A week later at the Bratislava EU summit, the prime ministers of the Visegrád 4 countries demanded a structural change of the EU in favour of the nation states. Slawomir Sierakowski even speaks about an ‘illiberal international’. See Sierakowski (2016).
The success of Donald Trump, an authoritarian presidential candidate in the USA, can be explained with the same reasons. See Taub (2016). About the socio-psychological causes of authoritarianism, see Bob Altemeyer’s work, which is based on Adorno’s ‘fascist personality concept explains the ‘authoritarian personality' with authoritarian submission, authoritarian aggression, and conventionalism. Cf. Altemeyer (1998) [I’m confused here].
Regarding the constitutional crisis of the EU, Michael Wilkinson draws attention to the dangers of ‘authoritarian liberalism’. See Wilkinson (2013, 527).
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Halmai, G. Is There Such Thing as ‘Populist Constitutionalism’? The Case of Hungary. Fudan J. Hum. Soc. Sci. 11, 323–339 (2018). https://doi.org/10.1007/s40647-018-0211-5
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DOI: https://doi.org/10.1007/s40647-018-0211-5