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Populism, authoritarianism and constitutionalism

  • Gábor Halmai

Abstract

The paper deals with the relationship of different types of populism with authoritarianism and constitutionalism. In the first part, I try to define various approaches—Left and Right-Wing, “good” or “bad”—to populism, especially from the point of view of whether they aim at changing the liberal democratic constitutional system to an authoritarian one. The following part discusses the rhetoric of authoritarian populists, which makes this type of populism distinct from non-populist authoritarians. The paper also explores the question of whom to blame for the success of authoritarian populisms, and the final part investigates, whether the use of legal tools by an authoritarian populist to dismantle liberal constitutional democracies means that we can speak about a special populist constitutionalism. While the paper tries to find out the joint characteristics of authoritarian populism, it heavily relies on the Hungarian experiences as a kind of model approach in East-Central Europe and maybe even beyond.

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This is an Open Access article, distributed under the terms of the Creative Commons Attribution licence (http://creativecommons.org/licenses/by/4.0/), which permits unrestricted re-use, distribution, and reproduction in any medium, provided the original work is properly cited.

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Gábor Halmai is Professor and Chair of Comparative Constitutional Law, European University Institute, Florence, Italy, gabor.halmai@eui.eu. The author highly appreciates the very useful comments and suggestion to an earlier version of this paper provided by Paul Blokker, Bojan Bugaric, Oran Doyle, Erik Longo and Andrea Pin. The usual disclaimer applies: The author bears the responsibility for any fault. Ever since the Hungarian approach of populism became a fashionable topic, I have been giving presentations at conferences and publishing articles on the case of Hungary. One of these papers, titled Is There Such A Thing As ‘Populist Constitutionalism? The Case of Hungary, has been presented and published in China (11 Fudan Journal of the Humanities And Social Sciences 323 (2018)). In a blogpost, I addressed the issue of the use of religion and nationalism by the populist Hungarian government (FIDESZ and Faith: Ethno-Nationalism in Hungary, Verfassungsblog, June 29, 2018), while in another one I wrote about some joint characteristics of populism in East Central Europe (Populism and Constitutionalism in East-Central Europe, Comparative Jurist, Nov. 22, 2017). The present text builds on these various works.

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1 Isaiah Berlin, To Define Populism, in The Isaiah Berlin Virtual Library 6 (1968), http://berlin.wolf.ox.ac.uk/lists/bibliography/bib111bLSE.pdf.

2 Id., at 7. In an op-ed piece, Roger Cohen, the opinion columnist of The New York Times suggested that the word “populism” should be retired altogether because the “overused epithet for multiple manifestations of political anger became sloppy to the point of meaninglessness.” Roger Cohen, It’s Time to Depopularize “Populist”, The New York Times, July 13, 2018.

3 Berlin, supra note 1, at 10.

4 Id., at 11.

5 Id., at 12–13.

6 Cas Mudde & Cristóbal Rovira Kaltwasser, Populism: A Very Short Introduction 6 (2017). Berlin also refers to Rousseau, pointing out that the doctrine begins in the 18th century. Berlin, supra note 1, at 18.

7 Id., at 34.

8 Pippa Norris, Is Western Democracy Backsliding?, Diagnosing the Risks, HKS Working Paper No. RWP17-012 (2017). Today, one should certainly add Jaroslaw Kaczynski from Poland to the list of authoritarian populists.

9 Robert Howse, Populism and Its Enemies, manuscript presented at a Workshop on Public Law and the New Populism, Jean Monnet Center, NYU Law School, 3, Sept. 15–16, 2017.

10 See Robert Howse, Thirteen Theses on Trump and Liberal Democracy, Verfassungsblog, Nov. 10, 2016.

11 Dani Rodrik, Is Populism Necessarily Bad Economics?, 108 AEA Papers and Proceedings 196 (2018).

12 Franklin D. Roosevelt, Acceptance Speech for the Renomination for the Presidency, Philadelphia, Pennsylvania, June 27, 1936. Cited by Rodrik, supra note 11, at 199.

13 See Mark Tushnet, Comparing Right-Wing and Left-Wing Populism, in Constitutional Democracy in Crisis? (Mark A. Graber, Sanford Levinson & Mark Tushnet eds., 2018).

14 See Pierre Rosanvallon, Penser le populisme, Leçon inagurale au Collège de France 18 (2011). Thanks to Théo Fournier, my PhD researcher at the EUI, for drawing my attention to this.

15 Samuel Issacharoff, Populism versus Democratic Governance, in Constitutional Democracy in Crisis? (Mark A. Graber, Sanford Levinson & Mark Tushnet eds., 2018).

16 Kim L. Scheppele, The Party’s Over, in Constitutional Democracy in Crisis? (Mark A. Graber, Sanford Levinson & Mark Tushnet eds., 2018).

17 Wojciech Sadurski goes as far as calling the new Polish system of Jaroslaw Kaczynski “plebiscitary autocracy.” See Wojciech Sadurski, Populist Challenges to Liberal Constitutionalism: A Case of Poland, in Constitutional Democracy in Crisis? (Mark A. Graber, Sanford Levinson & Mark Tushnet eds., 2018).

18 About the use of populist rhetoric by Viktor Orbán and his government, see a more detailed description in Gábor Halmai, Is There Such A Thing As ’Populist Constitutionalism? The Case of Hungary, 11 Fudan Journal of the Humanities And Social Sciences 323 (2018).

19 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 October 2, 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 by answering “no” (6 % were spoiled ballots), the referendum was invalid because the turnout was only around 40 percent, instead of the required 50 percent.

20 Andrea Pin in the parallel special issue argues that supranational courts are partially also responsible for the rise of populism by judicialization of political choices and replacing national debates and rules. In my view, this critique does not apply in the case of Member States of the EU, such as Hungary and Poland, where the democratic process is not operating satisfactorily, and the political institutions of the EU seem to be unable or unwilling to act. Here the CJEU or the ECtHR for that matters—despite their otherwise problematic de-politicized language—can be the last resort to enforce compliance with European values. See Andrea Pin, The Transnational Drivers of Populist Backlash in Europe: The Role of the Courts, 20 Ger. L. J. (2019), forthcoming.

21 The English-language translation of excerpts from Orbán’s speech was made available by Hungarian officials, see e.g. Financial Times: Brussels Blog, March 16, 2012.

23 In December 2011, the Parliament enacted a controversial election law with its gerrymandered electoral districts—making the electoral system even more disproportional—which favored the governing party in the elections to come. The main changes in the system were as follows: Shift to the majoritarian principle by increasing the proportion of single-member constituency mandates, eliminating the second round, introducing a relative majority system instead of the absolute majority, and introducing “winner-compensation.”

24 See this argument by Paul Blokker, New Democracies in Crises? A Comparative Constitutional Study of the Czech Republic, Hungary, Poland, Romania and Slovakia (2013). Also Wojciech Sadurski argued that legal constitutionalism might have a “negative effect” in new democracies and might lead to the perpetuation of the problem of both weak political parties and civil society. See Wojciech Sadurski, Transitional Constitutionalism: Simplistic and Fancy Theories, in Rethinking the Rule of Law After Communism 9 (Adam Czarnota, Martin Krygier and Wojciech Sadurski eds., 2005). About this and other possible reasons of populism in East-Central Europe see Gábor Halmai, Populism and Constitutionalism in East-Central Europe, Comparative Jurist, Nov. 22, 2017.

25 See Richard Albert, Counterconstitutionalism, 31 Dalhousie Law Journal 4 (2008).

26 See Sadurski, supra note 24, at 23.

27 See the reviews of Blokker, supra note 24, by Jiri Priban & Bogusia Puchalska, ICONnect, www.iconnectblog.com/2013/09/book-reviewresponse-paul-blokker-jiri-priban-and-bogusia-puchalska-on-civic-constitutionalism.

28 See Scheppele, supra note 16, at 495.

29 Ronald Inglehart & Pippa Norris, Trump, Brexit, and the Rise of Populism: Economic Have-Nots and Cultural Backlash, HKS Faculty Research Working Paper Series (2016). But economic and psychological factors are often related and there is a lot of criticism of Inglehart’s and Norris’ cultural explanation of populism. The critics claim that their theory neglects the fact that populists often (ab)use economic vulnerability to play the nationalist/racist card.

30 Daniel Goldhagen, Hitler’s Willing Executioners. Ordinary Germans and the Holocaust (1996).

31 Sándor Márai, Memoir of Hungary 1944–1948 (1996).

32 See on the various legal toolkits of populist autocrats Kim L. Scheppele, Autocratic Legalism, 85 University of Chicago Law Review 545 (2018).

33 See for the opposite view Lucia Corso, What Does Populism Have to Do with Constitutional Law? Discussing Populist Constitutionalism and Its Assumptions, Rivista di filosofia del Diritto 443 (2014).

34 Lech Morawski, A Critical Response, Verfassungsblog, June 3, 2017.

35 Adam Czarnota, The Constitutional Tribunal, Verfassungsblog, June 3, 2017.

36 See István Stumpf, Erős ÁllamAlkotmányos Korlátok [Strong StateConstitutional Limits] 244–249 (2014).

37 Attila Vincze, Az Alkotmánybíróság határozata az Alaptörvény negyedik módosításáról: az alkotmánymódosítás alkotmánybírósági kontrollja [The Decision of the Constitutional Court on the Fourth Amendment to the Fundamental Law: The Constitutional Review of Constitutional Amendments], Jogesetek Magyarázata 3, 12 (2013).

38 Analyzing 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.” Richard D. Parker, ‘Here, the People Rule’: A Constitutional Populist Manifesto, 27 Valparaiso Univ. L. Rev. 583, 531-584 (1993). 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 Trump’s 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.” Mark Lilla, The End of Identity Liberalism. The New York Times, November 18, 2016. Later, in an interview on the topic of the most effective tools against the President’s populism, Lilla 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.” David Remnick, A Conversation with Mark Lilla on His Critique of Identity Politics, The New Yorker, Aug. 25, 2017.

39 See Stephen Gardbaum, The Commonwealth Model of Constitutionalism. Theory and Practice (2013) about the new model. This model has also come to be known by several other names: “weak-form of judicial review” (Mark Tushnet, Alternative Forms of Judicial Review, 101 Michigan L. Rev. 2781 (2003)); “weak judicial review” (Jeremy Waldron, The Core of the Case Against Judicial Review, 115 Yale L. J. 1348 (2006)); “the parliamentary bill of rights model” (Janet Hiebert, Parliamentary Bill of Rights. An Alternative Model?, 69 Modern L. Rev. 7 (2006)); “the model of democratic dialogue” (Alison L. Young, Parliamentrary Sovereignty And The Human Rights Act (2009)); “dialogic judicial review” (Kent Roach, Dialogic Judicial Review and its Critics, 23 Supreme Court Law Review, 2nd series 49 (2004)); or “collaborative constitution” (Aileen Kavanaugh, Participation and Judicial Review: A Reply to Jeremy Waldron, 22 Law and Philosophy 451 (2003)).

40 Carlo Fusaro & Dawn Oliver, Towards a Theory of Constitutional Change’, in How Constitutions Change – A Comparative Study (Dawn Oliver & Carlo Fusaro eds., 2011).

41 See Tamás Györfi, Against The New Constitutionalism (2016).

42 See Gardbaum, supra note 39. Similarly, David Prendergast argues in the parallel special issue for the courts as partners of legislators protecting political processes rather than rights or interests in general. See David Prendergast, The Judicial Role in Protecting Democracy from Populism, 20 Ger L. J. (2019), forthcoming.

43 About the Romanian crisis see Vlad Perju, The Romanian double executive and the 2012 constitutional crisis, 13 Int’l J. of Constitutional L. 246–278 (2015); Bogdan Iancu, Separation of Powers and the Rule of Law in Romania: The Crisis in Concepts and Contexts, in Constitutional Crisis In The European Constitutional Area 153 (Armin von Bogdandy & Pál Sonnevend eds., 2015).

44 Tomás Lálik, Constitutional Crisis in Slovakia: Still Far from Resolution, ICONect, August 5, 2016. http://www.iconnectblog.com/2016/08/constitutional-court-crisis-in-slovakia-still-far-away-from-resolution/.

45 The same playbook was also used outside the region, in Turkey by Erdoğan and in Venezuela by Chavez.

46 Bruce Ackerman distinguishes between three models of democracy: Monistic, rights fundamentalism, in which fundamental rights are morally prior to democratic decision-making and impose limits, and dualist, which finds the middle ground between these two extremes, and subjects majoritarian decision-making to constitutional guarantees. See Bruce Ackerman, 1 We the People 6-16 (1992).

47 Arendt Lijphart, Patterns of Democracy. Government Forms and Performance in Thirty-Six Countries (1999).

48 Giovanni Sartori, Comparative Constitutional Engineering (2nd ed., 1997).

49 Bruce Ackerman, The New Separation of Powers, 113 Harv. L. Rev. 633 (2000).

50 Cf. Philip Norton, Governing Alone, Parliamentary Affairs, October 2003, 544.

51 See David Judge, Whatever Happened to Parliamentary Democracy in the United Kingdom, Parliamentary Affairs, July 2004, 691.

52 Cf. Keith D. Ewing, The Human Rights Act and Parliamentary Democracy, 62 Modern L. Rev. 79, 92 (1999).

53 See Matthew Flinders, Shifting the Balance? Parliament, the Executive and the British Constitution, Political Studies, March 2002, 62.

54 See Fusaro & Oliver, supra note 40, at 417-418.

55 See Bojan Bugaric, The Populist at the Gates: Constitutional Democracy Under Siege?, paper presented at a workshop on Public Law and the New Populism, New York University School of Law, Jean Monnet Center for International and Regional Economic Law and Justice, 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 Jan-Werner Müller, The People Must be Extracted from Within the People: Reflections on Populism, 21 Constellations 483 (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. Concerning these latter attempts, see Jane Suiter, David M. Farrell & Clodagh Harris, Ireland’s Evolving Constitution, in Constitutional Acceleration Within the European Union and Beyond 142 (Paul Blokker ed., 2018), and respectively Baldvin Thor Bergsson, The Constitution As a Political Tool in Iceland: From the Periphery to the Center in the Political Debate, in Constitutional Acceleration Within the European Union and Beyond 155 (Paul Blokker ed., 2018).

56 See for instance Cesare Pinelli, The Populist Challenge to Constitutional Democracy, 7 European Constitutional Law Review 5 (2011).

57 See these “essential characteristics” of constitutional democracy in Michel Rosenfeld, The Rule of Law and the Legitimacy of Constitutional Democracy, 74 Southern California Law Review 1307 (2001).

58 Luigi Corrias, Populism in Constitutional Key: Constituent Power, Popular Power, Popular Sovereignty and Constitutional Identity, 12 European Constitutional Law Review 6 (2016). See a different approach to Corrias’ populist constitutional theory in the parallel special issue by Oran Doyle, Populist Constitutionalism and Constituent Power, 20 Ger. L. J. (2019), forthcoming.

59 Corrias, supra note 58, at 16.

60 Id., at 18–19.

61 Pinelli, supra note 56, at 11.

62 See Corrias, supra note 58, at 13.

63 For a detailed analysis of the decision, see Gábor Halmai, The Abuse of Constitutional Identity. The Hungarian Constitutional Court on the Interpretation of Article E) (2) of the Fundamental Law, 43 Review of Central and East European Law 23 (2018).

64 For a more detailed discussion of this part of the amendment, see my blogpost FIDESZ and Faith: Ethno-Nationalism in Hungary, Verfassungsblog, June 29, 2018.

65 In a speech delivered on July 26, 2014, before an ethnic Hungarian audience in the neighboring 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 abandoned 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, then 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 it being a 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 the Hungarian state. Contrary to the liberal state organization logic of the past twenty years, this is a state organization originating in national interests.

See Viktor Orbán, Speech at Băile Tuşnad (Tusnádfürdő) of 26 July 2014, Budapest Beacon, July 29, 2014, http://budapestbeacon.com/public-policy/full-text-of-viktor-orbans-speech-at-baile-tusnad-tusnadfurdo-of-26-july-2014/. Kim Lane Scheppele’s article in this issue describes the ideological foundation of Orbán’s illiberalism by court ideologue András Lánczi. This populist critique is an outright rejection of liberalism as a utopian ideology, which is—similar to Communism—incompatible with democracy. See Kim L. Scheppele, The Opportunism of Populists and the Defense of Constitutional Liberalism, in this issue.

66 Four years later at the same place Orbán, already preparing himself for the upcoming debate before the European Parliament rephrased the concept, and talked about “Christian democracy.” Prime Minister Viktor Orbán’s Speech on the 29th Bálványos Summer University and Summer Camp on 28 July 2018, http://www.kormany.hu/en/the-prime-minister/the-prime-minister-s-speeches/prime-minister-viktor-orban-s-speech-at-the-29th-balvanyos-summer-open-university-and-student-camp.

69 See B. Szabó, Félázsiai származékoknál, mint mi, csak így megy [With a half-Asian lot such as ours, there is no other way], Népszabadság, July 27, 2012.

70 La Hongrie est une fatalité, Le Monde, Feb. 10, 2012.

71 Anna Grzymala-Busse, Whither Eastern Europe? Changing Political Science Perspectives on the Region, manusript, University of Michigan, December 5, 2013, http://users.clas.ufl.edu/bernhard/whitherpapers/Florida%20workshop%20ECE.pdf.

72 Only 22% of FIDESZ voters are followers of churches, and the same percentage of them consider themselves as explicitly non-religious. Political Capital Institute’s research, Budapest, 2012.

73 See András Bozóki & Zoltán Ádám, State and Faith: Right-wing Populism and Nationalized Religion in Hungary, 2 Intersections. East European Journal of Society and Politics 98 (2016).

74 Minden magyar a turulba születik [All Hungarian Are Born Into the Turul Bird], Népszabadság, Sept. 29, 2012.

75 Ernesto Laclau, On Populist Reason (2005).

76 Paul Blokker, Populist Constitutionalism, in Routledge Handbook on Global Populism (Carlos de la Torre ed., 2018).

77 See Carl Schmitt, Constitutional Theory 125–126 (2008). 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.

78 Cas Mudde & Cristóbál Rovira Kaltwasser, Exclusionary vs. Inclusionary Populism: Comparing Contemporary Europe and Latin America, 48 Government and Opposition 147 (2013).

79 Also, Ruth Gavison calls to celebrate populism as the “core of democracy rather than condemn it as anti-democratic.” She refers to Michael Kazin, The Populist Persuasion (2017) as a persuasive analysis of populism as an authentic political movement. See Ruth Gavison, What Is the State of Democracy? How to Defend It?, ICONnectblog, August 26, 2017.

80 Mudde & Kaltwasser, supra note 6, at 81.

81 Id., at 83. Similarly, Tjitske Akkerman argues that not populism, but authoritarian nationalism, is the real threat to democracy. See Tjiske Akkerman, Authoritarian Nationalism, Not Populism Is Real Threat to Democracy, Social Europe, Aug. 9, 2017.

82 Mudde &amp; Kaltwasser, supra note 6, at 88.

83 Jan-Werner Müller, The Problem with ‘Illiberal Democracy’, Project Syndicate, January 21, 2016.

84 Jan-Werner Müller, What Is Populism? (2016).

85 Müller, supra note 55. Müller distinguishes the deeply problematic populist constitutionalism from a legitimate form of popular constitutionalism. Regarding the distinction, he refers to Corey Brettschneider, Popular Constitutionalism contra populism, 30 Constitutional Commentary 81 (2015).

86 Alon Harel argues that in Israel, populism rests on the essentialist characterization of citizenship. See Alon Harel, The Triumph of Israeli Populism, ICONnectblog, Aug. 22, 2017.

87 Paul Blokker, Populism as a Constitutional Project. Paper presented at the workshop ‘Public law and New Populism’, NYU School of Law, 2017. Mark Tushnet in his article published in this issue also acknowledges that some populists such as Viktor Orbán do seem to be in the process of transforming their regimes into authoritarian ones, but according to him the ultimate outcome of the process is still unclear. See Mark Tushnet, Varieties of Populism, in this issue.

88 Paul Blokker, supra note 87. Besides the proposition that a dictatorship can be democratic, 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” communist regimes used constitutions to legitimize 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.

89 Paul Blokker, Varieties of Populist Constitutionalism: The Transnational Dimension, in this issue.

90 See, e.g., the classical work of Charles McIlwain: “Constitutionalism has one essential quality: it is a legal limitation on government; it is the antithesis of arbitrary rule; its opposite is despotic government; the government of will instead of law […] all constitutional government is by definition limited government.” Charles H. McIlwain, Constitutionalism: Ancient and Modern 21-22 (1947). 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. Stephen Holmes, Constitutions and Constitutionalism, in Oxford Handbook of Comparative Constitutional Law 189-216 (Michel Rosenfeld & András Sajó eds., 2012). Similarly, Gábor Attila Tóth claims that specific markers of authoritarianism, such as hegemonic voting practices, imitation of institutional checks, superior executive or restricted fundamental rights make certain constitutional conceptions incompatible with the concept of constitutionalism. Gábor Attila Tóth, Constitutional Markers of Authoritarianism, Hague Journal on the Rule of Law, first view, September 10, 2018. Oran Doyle in the parallel special issue finds the understanding of constitutionalism as simply the practice of government under a constitution also appropriate, and consequently considers populist constitutionalism not as a contradiction. See Oran Doyle, supra note 58.

91 Mattias Kumm, Demokratie als verfassungsfeindlicher Topos, Verfassungsblog, Sept. 6, 2017.

92 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 Mark Tushnet, Varieties of Constitutionalism, 14 Int’l J. Const. L. 1 (2016). Similarly, Gila Stopler defines the state of the current Israeli constitutional system as ‘semi-liberal constitutionalism’. Cf. Gila Stopler, Constitutional Capture in Israel, ICONnect, August 21, 2017.

93 Tom Ginsburg & Alberto Simpser, Constitutions in Authoritarian Regimes (2014).

94 See for instance Alexander Somek, Authoritarian Constitutionalism: Austrian Constitutional Doctrine 1933-1938 and Its Legacy, in Darker Legacies of Law in Europe: The Shadow of National Socialism and Fascism Over Europe and Its legal Traditions (Christian Joerges and Navraj Singh Ghaleigh eds., 2003); Turkuler Isiksel, Between Text and Context: Turkey’s Tradition of Authoritarian Constitutionalism, 11 Int’l J. Const. L. 702 (2013); Mark Tushnet, Authoritarian Constitutionalism, 100 Cornell Law Review 391 (2015). Somek deals with Austria before the Anschluss, Isiksel with Turkey, while Tushnet tries to generally pluralize the normative understanding of non-liberal constitutionalism, differentiating between an absolutist, a mere rule-of-law, and an authoritarian form of constitutionalism, Singapore being the main example of the latter.

95 Steven Levitsky & Lucan A. Way, The Rise of Competitive Authoritarianism, 13 Journal of Democracy 51 (2002).

96 Li-Ann Thio, Constitutionalism in Illiberal Polities, in Oxford Handbook of Comparative Constitutional Law 133 (Michel Rosenfeld, & András Sajó eds., 2012). Contrary to my understanding, Thio also talks about ’constitutionalism’ in illiberal polities.

97 There are two subcategories distinguished here: The Iranian subcategory, where Islam is granted an authoritative central role within the bounds of a constitution; and the Saudi Arabian subcategory, where Islam is present, without the formal authority of modern constitutionalism.

* Gábor Halmai is Professor and Chair of Comparative Constitutional Law, European University Institute, Florence, Italy, . The author highly appreciates the very useful comments and suggestion to an earlier version of this paper provided by Paul Blokker, Bojan Bugaric, Oran Doyle, Erik Longo and Andrea Pin. The usual disclaimer applies: The author bears the responsibility for any fault. Ever since the Hungarian approach of populism became a fashionable topic, I have been giving presentations at conferences and publishing articles on the case of Hungary. One of these papers, titled Is There Such A Thing As ‘Populist Constitutionalism? The Case of Hungary, has been presented and published in China (11 Fudan Journal of the Humanities And Social Sciences 323 (2018)). In a blogpost, I addressed the issue of the use of religion and nationalism by the populist Hungarian government (FIDESZ and Faith: Ethno-Nationalism in Hungary, Verfassungsblog, June 29, 2018), while in another one I wrote about some joint characteristics of populism in East Central Europe (Populism and Constitutionalism in East-Central Europe, Comparative Jurist, Nov. 22, 2017). The present text builds on these various works.

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