Abstract
This introduction sketches out what are the main points of friction between populism and contemporary constitutional democracy, trying to shed light on the reasons why the populist proposals for reforming the political system are radically incompatible with democratic constitutionalism. Following the book's structure, the chapter first analyses how representative democracy has been affected by the advent of populism. Second, it dwells upon the well-known populist malaise for counter-majoritarian institutions. Third, the peculiar relationship of populism with the European Union is briefly considered. Finally, the last section anticipates some of the solutions for strengthening constitutional democracy that will be further investigated along the book.
This is a preview of subscription content, log in via an institution to check access.
Access this chapter
Tax calculation will be finalised at checkout
Purchases are for personal use only
Notes
- 1.
Populist constitutionalism must be kept distinguished from constitutional populism, a doctrine originated in the 1990s in the United States and elaborated in the work of Akhil Reed Amer, who once stated ‘I suppose if someone asked me, “What is your constitutional philosophy?” I might say that I am a constitutionalist, a textualist, and a populist’. The purpose of this doctrine was to correct the imbalance between the democratic and the aristocratic element of American democracy and advocated essentially for more instruments of democratic participation and less activism from the side of the US Supreme Court. To put it otherwise, constitutional populism does not seek to overstep the boundaries of constitutional democracy but to correct its current equilibrium, by offering a textual reading of the Constitution. See Reed Amar, A Few Thoughts on Constitutionalism, Textualism; Parker, Here, the People Rule.
- 2.
The political manifesto of this doctrine may be the famous speeches of Prime Minister Orbán delivered annually in Băile Tuşnad, in particular those of 2014 and 2019, where the Hungarian Prime Minister tried to frame ‘illiberal democracy’ as a legitimate alternative to liberal constitutional democracy. The text of the two speeches, translated into English, can be retrieved on the official website of the Hungarian government. Respectively at: https://2015-2019.kormany.hu/en/the-prime-minister/the-prime-minister-s-speeches/prime-minister-viktor-orban-s-speech-at-the-25th-balvanyos-summer-free-university-and-student-camp; https://2015-2019.kormany.hu/en/the-prime-minister/the-prime-minister-s-speeches/prime-minister-viktor-orban-s-speech-at-the-30th-balvanyos-summer-open-university-and-student-camp last accessed 30 September 2021.
- 3.
On the adaptability of the populist discourse, see Debras, in this book.
- 4.
Some authors outlined the main claims of a populist constitutional theory. These are namely: (1) the prevalence of the rule of men over the rule of law; (2) the unity and immediateness of the people will and (3) a strong accent on constitutional identity. See Corrias, Populism in a Constitutional Key, 6–26.
- 5.
This slogan was actually used by the German far-right political movement Pegida (Patriotische Europäer gegen die Islamisierung des Abendlandes) in the street rallies against German immigration policy in 2014 and 2015. See Mounk, El pueblo contra la democracia, 25.
- 6.
It is worth noting that, insofar, this represents the sole institutional reform proposed by the 5 Star Movement, that ultimately saw the light, after it was approved in a referendum held on the 20–21 of September 2021.
- 7.
Further, this proposal is accompanied by another which aims at introducing a majority bonus to the party who obtains at least the 30% of the popular vote in a newly designed proportional electoral system. Evidently, the combined effect of these proposals would be the injection of a further majoritarian element in the French democracy, to the detriment of parliamentarian component.
- 8.
More in details on the reforms implemented by the Orbán’s government concerning the role of parliament, see Szente, How Populism Destroys Political Representation, 1609–1618.
- 9.
Similar criticisms were revised in the first EU report on the rule of law situation in Hungary, the s.c. Tavares Report. See European Parliament ((2012/2130(INI)), Report on the situation of fundamental rights: standards and practices in Hungary (pursuant to the European Parliament resolution of 16 February 2012.
- 10.
On this problem, see Simonelli, in this book.
- 11.
STC 114/2017, of 17 October 2017.
- 12.
STC 124/2017, of 8 November 2017.
- 13.
More extensively on the Catalan secessionist process, see González Campañá, in this book.
- 14.
Ibid., 8.
- 15.
On these referenda, see Kużelewska, Same-Sex Marriage – A Happy End Story?.
- 16.
The use of instruments of participatory democracy is a typical feature of left-wing Latin American populism.
- 17.
Venice Commission, CDL-STD(1993)002-e, Models of constitutional jurisdiction—Science and technique of democracy, no. 2 (1993), 3.
- 18.
A comprehensive comparative account of these reforms is contained in Granata-Menghini, in this book.
- 19.
For a detailed illustration of this theory, see Roznai, Unconstitutional Constitutional Amendments.
- 20.
Judgement of Slovak Constitutional Court of 30 January 2019.
- 21.
In legal systems where the constitution contains an eternity clause, as it is case of Germany, the application of this doctrine is obviously less controversial.
- 22.
A complete illustration of this constitutional crisis can be found in the I-Connect Symposium on the case. The first episode of the saga is available at http://www.iconnectblog.com/2018/01/symposium-slovak-appointments-case-introduction/ last accessed 30 September 2021.
- 23.
Albeit the requirement to have an independent judiciary was not explicitly mentioned in the ‘Copenhagen criteria, during the accession talks leading to the 2004 enlargement the Commission required all candidate States to provide sufficient guarantees for judicial independence. See Kochenov, Behind the Copenhagen Facade, 20.
- 24.
Extensively on the Spanish judicial council, see Torres Perez, Judicial Self-Government and Judicial Independence.
- 25.
See GRECO Eval IV Rep (2013) 5E, Corruption prevention in respect of members of parliament, judges and prosecutors, adopted by on 6 December 2013. Recently the Greco repeated the necessity of a reform of the appointment system. See Greco RC4(2021)3, Fourth Evaluation Round. Second Compliance Report.
- 26.
Precisely, the proposal provides for the lowering of the majority of 12 of the 20 members of the Spanish judicial council, as for the other 8 Article 122(3) requires a three-fifth majority of the members of both the Congress of Deputies and the Senate.
- 27.
Strong critics against these proposals were raised both by judges and by opposition parties. Appointments to the Spanish Judicial Council are blocked since December 2018.
- 28.
According to the 2021 EU Justice Scoreboard, the perceived independence of the judiciary in the two countries is amongst the lowest in the EU, with more than 60% of the interviewed declaring to consider the level of judicial independence fairly or very bad. See 2021 EU Justice Scoreboard, 41. Available at: https://ec.europa.eu/info/sites/default/files/eu_justice_scoreboard_2021.pdf. last accessed 30 September 2021
- 29.
Extensively on the point, see de Ghantuz Cubbe, in this book.
- 30.
This is the case of Poland. See Granat, in this book.
- 31.
For more details on the attack on the Hungarian independent authorities, see Carlino, Ungheria: le autorità indipendenti e la ‘democratic erosion’.
- 32.
Act XXXVI of 2013 on Electoral Procedure.
- 33.
Rule of Law Report 2020.
- 34.
More in details on the attack on freedom of expression by the Polish Government, see Fomina and Kucharczyk, The Specter Haunting Europe.
- 35.
CDL-AD(2005)017, Opinion on the compatibility of the laws ‘Gasparri’ and ‘Frattini’ of Italy with the Council of Europe standards in the field of freedom of expression and pluralism of the media, paras. 36 and 260, cited in CDL-PI(2020)008, Compilation of Venice Commission opinions concerning freedom of expression and media, 7.
- 36.
Critics of technocratic governance point out that the delegation to regulatory authorities is actually a consequence of the political parties’ failure to take decisions with long-term effects, as these may affect negatively their electoral performance, on which their permanence in power relies. See Pinelli, The Populist challenge, 12–13.
- 37.
In this book, Guerra explains why it is rightly so.
- 38.
Arguably, national governments favoured this process, hiding behind the EU to justify failures and unpopular decisions. See, Pinelli, in this book.
- 39.
https://www.politico.eu/article/germanys-far-right-afd-alternative-for-germany-to-campaign-on-possible-eu-exit-alexander-gauland/ last accessed 30 September 2021.
- 40.
European Commission, EU Budget 2018 Financial Report, 75. Available at: https://ec.europa.eu/info/sites/default/files/about_the_european_commission/eu_budget/financial_report_web.pdf last accessed 30 September 2021. In 2018, the last year for which figures are available, the Hungarian government received from the EU five billions euros more than what it contributed to the EU budget, and the Polish twelve billions, making Poland the biggest net beneficiaries of the EU budget. Just to give a term of comparison, such funding accounted respectively for 43% and 56% of all public investment in the two countries in 2018. These data have been excerpted from the European Semester Reports for the two countries. See SWD(2018) 215 final, Country Report Hungary 2018, 10; SWD(2018) 219 final, Country Report Poland 2018, 14. Respectively available at: https://ec.europa.eu/info/sites/default/files/2018-european-semester-country-report-hungary-en.pdf; https://ec.europa.eu/info/sites/default/files/2018-european-semester-country-report-poland-en_1.pdf last accessed 30 September 2021.
- 41.
European Commission, Standard Eurobarometer 95 Spring 2021.Public opinion in the European Union, 10. Available at https://europa.eu/eurobarometer/surveys/detail/2532 last accessed 30 September 2021.
- 42.
On this aspect, see Krunke, Tornøe, Wegener, in this book.
- 43.
For an overview of these issues, see Castellà, in this book.
Bibliography
Ackerman, John. “Understanding Independent Accountability Agencies.” in Comparative Administrative Law edited by Susan Rose-Ackerman, Susan and Peter L. Lindseth, London: Edward Elgar, 2010, 688–700.
Ackerman, Bruce. “The New Separation of Powers.” Harvard Law Review 113, no. 3 (2000): 633–729.
Bickerton, Cristopher and Accetti Invernizzi, Carlo. “Populism and Technocracy,” in The Oxford Handbook of Populism edited by Cristóbal Rovira Kaltwasser. Oxford: Oxford University Press, 2017.
Bobek, Michal. “The Fortress of Judicial Independence and the Mental Transitions of the Central European Judiciaries.” European Public Law 14, no. 1 (2008): 99–123.
Bugarič, Bojan. “The Two Faces of Populism: Between Authoritarian and Democratic Populism.” German Law Journal 20, no. 3 (2019): 390–400. https://doi.org/10.1017/glj.2019.20
Cappelletti, Mauro. “ “Who Watches the Watchmen?” A Comparative Study on Judicial Responsibility.” The American Journal of Comparative Law 31, no. 1 (1983): 1–62.
Corrias, Luigi. “Populism in a Constitutional Key: Constituent Power, Popular Sovereignty and Constitutional Identity.” European Constitutional Law Review 12, no. 1 (2016): 6-26.
De Marco, Eugenio. “Sovranismo e populismo vs integrazione sovranazionale.” Federalismi, no. 4 (2020): 1–8.
De Somer, Stéphanie. Autonomous Public Bodies and the Law: A European Perspective. Edward Elgar: London, 2017.
Fioravanti, Maurizio. Constitución. De la Antigüedad a nuestros días. Madrid: Trotta, 2011.
Finchelstein, Federico. From Fascism to Populism in History. Berkeley: University of California Press, 2017.
Fomina, Joanna and Kucharczyk, Jacek. “The Specter Haunting Europe: Populism and Protest in Poland.” Journal of Democracy 27, no. 4 (2016): 58–68.
Ginsburg, Tom and Huq, Aziz Z. How to save a constitutional democracy. Chicago: Chicago University Press, 2018.
Kochenov, Dimitry. “Behind the Copenhagen Facade. The Meaning and Structure of the Copenhagen Political Criterion of Democracy and the Rule of Law.” European Integration Online Papers 8, no. 10 (2004): 1–24.
Kosař, David, Jiří Baros and Pavel Dufek. “The Twin Challenges to Separation of Powers in Central Europe: Technocratic Governance and Populism.” European Constitutional Law Review 15, no. 3 (2019): 427–461. https://doi.org/10.1017/S1574019619000336
Kużelewska, Elżbieta. “Same-Sex Marriage – A Happy End Story? The Effectiveness of Referendum on Same-Sex Marriage in Europe.” Białostockie Studia Prawnicze 24, no. 1 (2019): 1–16. https://doi.org/10.15290/bsp.2019.24.01.01
Landau, David. “Abusive constitutionalism.” University of California Davis Law Review 47, no. 1 (2012): 189–260.
Majone, Davide. “Europe’s “Democratic Deficit”: the Question of Standards.” European Law Journal 4, no. 1 (1998): 5–28.
Martinelli, Alberto. “National Populism and the European Union.” Populism 1, no. 1 (2018): 59–71.
Mounk, Yascha. El pueblo contra la democracia. Barcelona: Paidós, 2018.
Mudde, Cas and Rovira, Cristóbal. Populism in Europe and the Americas. Threat or corrective for democracy?. New York: Cambridge University Press, 2013.
Müller, Jan-Wermer. ¿Qué es el populismo?. Madrid: Grano de Sal Ediciones, 2014.
Parker, Richard D. Here, the People Rule: A Constitutional Populist Manifesto, Cambridge: Harvard University Press, 1998.
Pinelli, Cesare. “The Populist Challenge to Constitutional Democracy.” European Constitutional Law Review 7, no. 1 (2011), 5–16.
Popper, Karl. The Open Society and Its Enemies. London: Routledge, 2011 (1st version 1945).
Rose-Ackerman, Susan. “The Regulatory State” in The Oxford Handbook of Comparative Constitutional Law, edited by Michel Rosenfeld and András Sajó, 676. Oxford: Oxford University Press, 2012.
Roznai, Yaniv. Unconstitutional Constitutional Amendments. Oxford: Oxford University Press, 2018.
Schwartz, Hermann. The Struggle for Constitutional Justice in Post-Communist Europe. Chicago: The University of Chicago Press, 2000.
Tarchi, Rolando. “Democrazia e istituzioni di garanzia.” Rivista AIC, no. 3 (2018): 894–995.
Torres Pérez, Aida. “Judicial Self-Government and Judicial Independence: the Political Capture of the General Council of the Judiciary in Spain.” German Law Journal 19, no. 7 (2018): 1769–1800. DOI:https://doi.org/10.1017/S2071832200023233.
Zoltán, Szente. “How Populism Destroys Political Representation (Anti-)Parliamentary Reforms in Hungary after 2010.” DPCE Online, no. 2 (2019): 1609–1618.
Author information
Authors and Affiliations
Corresponding author
Editor information
Editors and Affiliations
Rights and permissions
Copyright information
© 2022 The Author(s), under exclusive license to Springer Nature Switzerland AG
About this chapter
Cite this chapter
Castellà Andreu, J.M., Simonelli, M.A. (2022). Populism and Contemporary Democracy. In: Castellà Andreu, J.M., Simonelli, M.A. (eds) Populism and Contemporary Democracy in Europe. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-030-92884-1_1
Download citation
DOI: https://doi.org/10.1007/978-3-030-92884-1_1
Published:
Publisher Name: Palgrave Macmillan, Cham
Print ISBN: 978-3-030-92883-4
Online ISBN: 978-3-030-92884-1
eBook Packages: Political Science and International StudiesPolitical Science and International Studies (R0)