The populist onslaught against the constitutional pillars of democracy has shown that the traditional “checks and balances” such as courts, independent electoral bodies, free media and civil and political rights might not be as powerful in defending democracy from backsliding towards autocracy as many legal scholars tend to believe. Many of them have argued that the most significant bulwark against the return of repression is the presence of strong constitutional courts. While they acknowledge that sustaining a democratic order relies on many factors and institutions, including political parties, they cling on to the belief that the reliance on constitutional courts and other constitutional checks and balances is the best way to protect democracy from backsliding. For some time, their wisdom seemed to have been validated by political developments around the world. In many emerging democracies, the courts have played a major role in building constitutional democracy during transition periods and have served as symbols of the rule of law. The constitutional courts of Hungary, Poland, and South Africa emerged over a relatively short period of time as the most influential rule of law institutions in their respective countries. Facilitated by outside institutions such as the Venice Commission on Democracy through Law in Europe, these courts became key “veto players” in the politics of the post-1989 transition to democracy. The importance of these constitutional courts continued to increase as their judgments attracted widespread attention from the legal profession and broader political audiences. Their power to review the constitutionality of statutes challenged the almost absolute supremacy that legislatures had previously enjoyed. The Hungarian Constitutional Court, under the strong leadership of liberal Chief Justice Solyom, issued a series of decisions that established its reputation as the key protector of political and social rights in Hungary. The constitutional courts of Poland, Slovenia, Slovakia and Romania also managed to offer a robust defence of key constitutional principles and basic rights enshrined in the post-1989 constitutions.
Yet the last few years have exposed the institutional fragility of the constitutional courts and other rule-of-law institutions when targeted by determined autocratic populist leaders. In countries like Hungary and Poland, the new populist governments have managed, with relative ease, to pack the courts with their own loyalists and to curtail these institutions’ independence, rendering them powerless. All this suggests that when a strong authoritarian leader is in power, the rule of law might not be the most effective tool for curbing the power of the autocrat. It seems that a constitutional court alone is relatively weak against a powerful government determined to dismantle basic rule-of-law institutions, as is the case in Hungary and Poland. Even Issacharoff (2017), a strong defender of “militant democracy,” is willing to concede this point. In a more recent article, he argues that “it is doubtful that courts can hold out for long if the institutions of democratic governance do not take root.” Under such circumstances, there is little that a constitutional court can do to stop the authoritarian drift. In retrospect, we see that the post-communist reformers place too much faith in the courts. Constitutional courts and other rule-of-law institutions in Central and Eastern Europe always lacked the requisite strong support of genuinely liberal and democratic political parties and programmes, leaving the courts vulnerable to attacks from populists. In one of his most recent papers, Krygier (2019) thus asks the following question: “why has it been so easy for populist subversion of constitutionalist and rule of law values and institutions to occur where, only thirty years ago, they seemed to have been welcomed as indispensable ingredients of the normality so many citizens of the region professed to admire?”
The notion that judges might not provide the most effective bulwark against the rise of anti-democratic forces is also evident from a well-known historical precedent—pre-WWII German history. Before the Nazis came to power in Germany, judges were celebrated for having developed an early form of the Rechtsstaat (legal state). Yet they did not even try to challenge Hitler’s supremacy. In a 1936 essay (Loewenstein 1936), Karl Loewenstein pointed out that a judge would have to be very reckless to challenge Nazi ordinances on legal grounds, and noted that he knew of no such judge. On the contrary, the blessing of the German judges, which stabilized the judicial system, was instrumental in legitimizing the Nazi regime. A majority of German judges eagerly supported extreme nationalism and anti-Semitism, and shared the Nazi opposition to Weimar. In other words, the bench and the bar would be the last place to look to for opposition to the Nazis.
A recent empirical study (Chilton and Versteeg 2018, 297) finds that “the presence of independent courts alone might not be enough to stop a government determined to curb its citizens’ rights.” Moreover, the same study offers another finding showing that constitutional rights do not appear to be better protected in countries with independent courts equipped with the power of judicial review. The main reason behind this paradox is the fact that the enforcement of rights ultimately falls on citizens themselves. When citizens are organized, they can resist rights’ violations through various forms of civic action. Where such mobilization is weak, the protection of rights is less effective.
After reviewing a number of other essential features of liberal constitutionalism (federalism, the separation of powers, electoral systems, and the bill of rights), Ginsburg et al. (2018, 253) come to a sobering conclusion: “at best, constitutional design features serve as speed bumps to slow the agglomeration and abuse of political power; they cannot save us from our worst selves completely.”
In a recent comparative study of democratic backsliding, Levitsky and Ziblatt (2018, 7) argue that institutional safeguards like constitutional checks and balances are less effective in protecting democracy than we think. More important than institutional safeguards are the “unwritten democratic norms” that reinforce democratic institutions. As essential informal norms they identify mutual toleration and forbearance (partisan self-restraint and fair play). Mutual toleration essentially means that competing political parties accept one another as legitimate rivals. Forbearance is the opposite of “constitutional hardball” as defined by Mark Tushnet: playing by the rules but pushing against their boundaries (Tushnet 2004). It entails a partisan self-restraint in using one’s institutional prerogatives. The examples that Ziblatt and Levitsky mention are the sparing use of the Senate filibuster, a bipartisan consensus on impeachment, or the deference of the Senate to the President in nominating Supreme Court justices. Such informal social norms represent the “soft guardrails” of democracy, helping it avoid the extreme polarization and partisan fight to the death that has destroyed numerous other democracies around the world. Ziblatt and Levitsky develop a litmus test, consisting of four behavioural warning signs that can help us identify an authoritarian leader. They include a rejection or weak commitment to democratic rules of the game, a denial of the legitimacy of political opponents, the toleration or encouragement of violence, and a readiness to curtail civil liberties and media freedom. What is remarkable is how similar these warning signs are to usual strategies that populists use to subvert democratic institutions.
In addition to informal democratic norms, political parties and civil society play a crucial role in the defence of constitutional democracy. Huq and Ginsburg (2018) argue that “the near-term prospect of constitutional liberal democracy hence depends less on our institutions than on the qualities of political leadership and popular resistance.” Moreover, “it is crowds marching the streets, and the people taking it upon themselves to enforce the social contract, that ultimately are the best protector of liberal constitutionalism” (Ginsburg et al. 2018, 253). In their book Why Civil Resistance Works? Chenoweth and Stephan (2011) show that non-violent resistance in the form of boycotts, strikes and protests deters autocratic backsliding. An original, aggregate data set of all known major non-violent and violent resistance campaigns from 1900 to 2006 is used to test these claims. Similarly, Berman (2017) argues that it is a long-term democratic struggle that should be credited for the development of liberal democracy in most of the European states. After reviewing two centuries of turmoil characterizing the development of liberal democracy in the UK, France, Germany, Italy and Spain, Berman (2019) concludes that “fighting back against the populist tide and avoiding illiberal democracy therefore requires finding ways to remove the barriers that have weakened contemporary democracy and to encourage greater citizen participation.”
As Diamond (2016) argues “[d]emocracies fail when people lose faith in them and elites abandon their norms for pure political advantage.” This is exactly what is happening in Hungary and, to a lesser extent, in Poland. In Hungary, increasing numbers of political leaders and citizens are willing to tolerate the authoritarian politics of Orban’s government in exchange for a better protection of their security, social benefits and political status. Poland is embarking upon such a journey. With the most recent package of legislation aimed at curtailing the independence of the Supreme Court, the PiS government has found itself on the banks of the Rubicon of Polish democracy. The strength of the Polish opposition and the vitality of Polish democracy are being tested here. If PiS gets its way, the gates for a further backsliding of constitutional democracy in Poland will be wide open.
This is not to suggest, however, that during the early stage of the populist turn to authoritarianism, rule-of-law institutions are not important. The Polish case, where opposition to the new populist government is stronger than in Hungary and where the new government has not yet fully dismantled all the foundations of the rule of law, is a litmus test for the capacity of rule-of-law institutions to prevent democratic backsliding. Two conclusions from this brief review of the literature emerge. One is that law has only a weak role in preventing a breakdown of constitutional democracy when democracy is not the only game in town and when democratic support for constitutional checks and balances is eroding. The second one shows that a constraining role of law differs in different stages of the rise of populism. During the early stage of the rise of authoritarian populism, constitutional design features serve as “speed bumps” to slow the deconsolidation of liberal democracy.