Introduction
The re-election of President Trump to a second term has reignited serious concerns about the future of liberal-democratic governance. It has become abundantly clear that democratic decay, which was already becoming a major research theme across a wide range of disciplines, is now a global challenge, second only to climate change or geopolitical conflict.Footnote 1 The fact that many democratic systems show similar signs of deterioration raises important questions about the resilience of their constitutional foundations. Recent scholarship increasingly stresses the importance of the unwritten, informal constitution in this respect.Footnote 2 As Austria’s top constitutional judge, Christoph Grabenwarter, explained in 2018, ‘the best rules may not be sufficient if mutual respect between state organs is lost and with this the respect for the constitution and its core guarantees’.Footnote 3 There is thus a growing awareness that constitutional resilience is a matter, not just of written constitutional rules but also of informal norms such as traditions, customs and conventions.Footnote 4
This increased focus on constitutional resilience, which was originally regarded mainly as the ability of constitutional systems to maintain constitutional normativity against external shocks such as crisesFootnote 5, is currently also taken to include internal democratic challenges.Footnote 6 A major challenge in this respect is the global rise of populism. Notable scholars such as Mattias Kumm regard populism as a serious threat in the light of democratic resilience.Footnote 7 The danger, according to Kumm, lies not in the fact that populists necessarily advocate unwise policies or that their confrontational political style is at odds with political mores. Rather, it concerns the challenging of core notions of modern constitutional democracy, such as pluralism, legitimate opposition, the idea of procedural legitimacy, persistent dissent and democratic participation of minorities. Populists focus on securing sufficient homogeneity to achieve a uniform will of ‘the people’ by excluding as part of ‘the people’ minorities on religious, ethnic, racial or cultural grounds.
We do not disagree with the latter proposition that populism challenges these fundamentals of the liberal democratic polity. Indeed, this has attracted ample scholarly attention.Footnote 8 Yet our purpose here is to challenge the (more widely held) assertion that the populist style of seeking out confrontation with the mores of political elites within the democratic polity is, as such, unproblematic. Sure, there are many traditions or unwritten mores of political practice that could be disregarded without any democratic objection. Dragging a new Speaker of the House of Commons to his Chair by other MPs, as is the custom in the UK parliament, can hardly be called fundamental. There is, however, one specific category of ‘political mores’, the so-called ‘constitutional convention’, which is an indispensable way of implementing a constitution’s adherence to core democratic values.Footnote 9 These rules of constitutional behaviour, which are neither the result of the legislative process nor judicial interpretation but are usually considered binding by and upon those who operate the Constitution, increasingly attract scholarly attention.Footnote 10 The function of these constitutional conventions is to give specific meaning and substance to basic underlying principles such as democratic accountability, separation of powers and interinstitutional respect. Our central question would thus be to what extent the rise of populism as a political current has implications for the resilience of democratic systems in which the political process depends at least partially on the existence of constitutional conventions. Put differently: is any populist aversion to existing ‘political mores’ really unproblematic, from a constitutional perspective?
Examples of such conventional disregard by populist political actors can be found pretty much everywhere. The American President Trump is, of course, notable for his flouting of the informal rulebook. Whether these norms prohibited presidential meddling with criminal investigations, regulated the constitutional appointments process or prescribed openness about his tax returns, the presidential disdain for them was never obscured during the Trump years.Footnote 11 But this is hardly an American phenomenon. In the United Kingdom, traditionally the home of political constitutionalism, Prime Minister Boris Johnson displayed a political style which has been described as ‘revolving around a consistent and strategically groomed willingness to flaunt the rules, break conventions and engage in offensive behaviour’.Footnote 12 The 2019 prorogation crisis is a case at hand. The attempt of the Johnson government to sideline Parliament by proroguing Parliament for an unusually long period of five weeks, which just happened to coincide with the United Kingdom’s scheduled withdrawal from the EU, arguably violated several constitutional conventions.Footnote 13 And neither is this a particularly Anglo-Saxon development. Constitutional democracies across Europe display similar narratives. The Dutch populist leader of what is currently the largest political force in Parliament, Geert Wilders, is fairly open about the fact that he wants ‘nothing to do with informal parliamentary agreements’.Footnote 14 Similar sentiments can be traced in new democracies such as the Czech Republic, where then President Miloš Zeman maintained that constitutional conventions were ‘totally idiotic, because if they were truly constitutional, they would have been grounded in the constitution in some way.’Footnote 15 Last but not least, convention trashing seems, at least at first sight, not limited to right-wing populism. There is no shortage of examples of left-wing populists rejecting constitutional conventions, from Podemos openly rejecting both the perceived neutrality of the monarchy and a tradition of consensus politics in Spain, to France’s Jean-Luc Mélenchon adopting a confrontational style towards independent institutions, and the South African Economic Freedom Fighters throwing out the parliamentary rulebook.Footnote 16 Yet, some instances may also be found where populist actors do the opposite: strategically invoking constitutional conventions when doing so serves their interests.Footnote 17 This raises the question: are populists simply pragmatic opportunists when it comes to constitutional conventions, or are they fundamentally hostile to them on ideological grounds, merely instrumentalizing them when convenient?
This possible tension between populism and convention is relatively understudied. As we discuss below, there are some valuable conceptual and empirical studies in political science, signalling links between the populist style and what is now regularly called ‘bad manners politics’ or the ‘high-low axis’.Footnote 18 However, these studies usually focus on rhetoric and argumentative style, rather than on the divergence from unwritten constitutional norms. Moreover, legal literature has yet to flesh out the nexus between conventions and the rise of populism. The first, as far as we can see, to highlight this difficult relationship was Nicola Lacey. When analysing the relationship between populism and the rule of law, she pointed to what she called ‘convention-trashing’.Footnote 19 Lacey argued that the fullest expression of constitutionalism ‘depends on a set of attitudes that cannot be captured or completely enforced by rules, however elaborate.’Footnote 20 Only a small number of subsequent publications have addressed the subject explicitly,Footnote 21 although the importance of unwritten norms is sometimes stressed.Footnote 22
So, how are we going to approach the issue? In order to determine the resilience of a constitutional democracy, the two relevant factors to look at are, according to Christoph Grabenwarter, the degree of stability of a given system and ‘the aggressiveness of its surroundings’.Footnote 23 This article takes the latter factor as its point of departure. Building on Kumm’s notion that populists embrace a confrontational political style and uncouth rhetoric at odds with political mores, we seek to theoretically underpin this picture by engaging in a conceptual analysis of both populism and constitutional conventions. In conducting the conceptual analysis, this paper mainly connects two bodies of literature. First, it draws from the rich body of legal scholarship on the nature, background and characteristics of constitutional conventions. Second, political science scholarship on what counts as populism will be analysed. The third and last part of our inquiry considers the implications with respect to the stability of the constitutional system and the sustenance of key constitutional principles. To this end, we develop the notion of the populist transgression of constitutional conventions. Having charted different situations in which transgressions take place, we conclude that the populist transgression, unlike other forms of transgressions, is particularly detrimental to the constitutional convention as a concept, because of its rejective and outsider perspective. We then flesh out some of the ways in which transgressions may affect the very existence of a convention, focusing specifically on the extent to which independent mechanisms are in place by which constitutional conventions can be enforced and protected.
Constitutional conventions as guardians of constitutional resilience
Our argument here rests upon two pillars. The first boils down to the assumption, which we flesh out below, that populism seems at odds with the very idea of a constitutional convention. The second concerns the impact of this assumption on constitutional resilience. Before moving on to our analysis of the relationship between populism and conventions, we therefore first clarify the concept of the ‘constitutional convention’, and its function in the infrastructure of constitutional resilience.
Constitutional convention as a concept: Between law and practice
Constitutional conventions are regularly associated with common law democracies, such as the United Kingdom. Yet many other systems display similar forms of informal norms of political morality, even though their function in the constitutional system differs starkly.Footnote 24 In the United States and Germany, both prominent examples of written constitutionalism, the importance of informal rules is increasingly recognized.Footnote 25 Similarly, informal norms appear in most (other) European jurisdictions.Footnote 26 Acknowledging that there may be serious cultural divergences between different constitutional cultures, it is still possible to adopt a minimal, working definition of a constitutional convention that roughly applies to many of the jurisdictions we discuss here. A well-known definition treats constitutional conventions as ‘that subset of informal norms that regulates the public behavior of actors who wield high-level governmental authority, thereby guiding and constraining how these actors “exercise political discretion”’.Footnote 27 Constitutional conventions typically concern the interdependencies of major government institutions. This renders them constitutional conventions rather than just conventions.Footnote 28
Unlike classic legal rules, constitutional conventions are not the result of a legislative process,Footnote 29 but rather of a ‘gradual and unself-conscious’ development.Footnote 30 Typically qualified as ‘the embodiment of constitutional custom’,Footnote 31 constitutional conventions arise from practice: a series of precedents agreed to have given rise to a (binding) norm. However, conventions may also arise as a result of deliberate processes.Footnote 32 Political actors may, for example, even without clear precedents, create or alter constitutional conventions by agreement, and they may even do so unilaterally.Footnote 33 However, constitutional conventions attain their status only when these agreements or declarations facilitate a chain of actions and expectations that involve not only the issuing actor(s) but also third parties.Footnote 34
Constitutional conventions are considered to occupy a position between political practice and constitutional law.Footnote 35 However, the line between constitutional conventions and mere practice is blurred. One way of distinguishing convention from practice, which originates from the common law world, concerns the so-called ‘Jennings-test’:Footnote 36 It involves three steps: focusing on historical precedent, the extent to which political actors believe that they are bound by the norm and whether the norm has a proper rationale.Footnote 37 Modern approaches have expanded the test to include a necessary connection between convention and underlying constitutional principles.Footnote 38 In this view, what sets constitutional conventions apart from other traditions or mere practice is their nexus with legally recognized constitutional principles.Footnote 39 To the extent this is the case, conventions can be said to be binding. Rather than a mere description of current beliefs among constitutional actors, conventions provide prescriptive standards of behaviour independent from those beliefs.Footnote 40
This ‘principle-centered’ approach is both widely recognized and useful for present purposes. It allows us to distinguish ordinary or ‘administrative’ conventions from the more fundamental, ‘constitutional’ conventions that play a role in securing democratic resilience.Footnote 41 As T.R.S. Allan argues, any interpretation of a convention ‘must appeal to its role within a polity, providing an account of how it contributes to good government or some aspects of political morality.’Footnote 42 Constitutional conventions thus form a broader reflection of underlying principles.Footnote 43 This is a quality they share with written rules, as they are both, to some extent, dependent on constitutional principles for their validity and enforcement.Footnote 44 Given that norm-setting is the major function of constitutional conventions, their violation would also constitute a violation of the underlying values involved.Footnote 45
The importance of conventions for resilience
It is precisely this nexus between constitutional conventions and principles that renders the convention indispensable in terms of democratic and constitutional resilience.Footnote 46 As set out in the introduction, constitutional resilience refers to the extent to which the functions of the state and, more broadly, constitutional normativity are maintained in the face of crisis. Originally focused on the ability of constitutions to withstand external shocks, this concept has been extended to include resilience in the face of internal democratic challenges. Thus, constitutional resilience arguably includes the ability to absorb deliberate attempts to undermine fundamental values, while retaining the same basic structure and ways of curbing the illegitimate exercise of power.
Constitutional conventions are often about self-restraint in the exercise of powers and about respect for the constitutional role and functions of other branches of the government.Footnote 47 Levitsky and Ziblatt refer to this self-restraint as institutional forbearance, ‘the idea that politicians should exercise restraint in deploying their institutional prerogatives’.Footnote 48 It is widely accepted that institutional forbearance is fundamental to the proper functioning of democracy. Systems featuring unwritten constitutions depend largely on networks of constitutional conventions embedded in political culture.Footnote 49 The unwritten nature of the constitution would allow for the development of a shared constitutional language while at the same time maintaining flexibility in the interpretation of its content.Footnote 50 Yet conventions are also crucial for the functioning of (predominantly) written constitutions.Footnote 51 They ‘make the legal constitution work’.Footnote 52 Moreover, unlike rigid formal constitutional rules, they do so in ways that secure agile government practice.Footnote 53 Conventions furthermore contribute to the functioning of democracy by providing ‘behavioural scripts’ that allow political actors to show their democratic commitment, reinforcing mutual trust among politicians.Footnote 54 This ‘behavioural script’ also provides an organizing function by ensuring some degree of order and stability through the conventional regulation of political processes.Footnote 55 Finally, constitutional conventions bridge the gap between the formal text of the written constitution and reality. This is important from the perspective of democratic constitutionalism: whereas formal legal processes permit public action that is generally considered to contradict specific time-sensitive democratic values, constitutional conventions ensure the operation of those processes in accordance with those values.Footnote 56
This is not to say that a resilient system does not allow for conventions to be ignored or even occasionally openly contested. Already at the start of this century, American constitutionalist Mark Tushnet coined the term ‘constitutional hardball’: ‘political claims and practices (…) that are without much question within the bounds of existing constitutional doctrine and practice but that are nonetheless in some tension with existing pre-constitutional understandings, the latter of which are defined as the “go without saying” assumptions that underpin working systems of constitutional government’.Footnote 57 Although hardball was often thought to be destabilizing, Tushnet stressed that constitutional stability was just one of several values within a political system: ‘constitutional orders change, and sometimes they should change’.Footnote 58 Constitutional hardball may thus be a method of inducing potentially desirable constitutional change. Tushnet even argues that it is almost always a signal of some disorder in the existing constitutional system, associating hardball with the transformation from one constitutional order to another. For one, this means that hardball should be distinguished from regular modifications of constitutional conventions, which do their work within a given constitutional order. Moreover, the departure from a set of unwritten norms can only be defended on the basis of either existing or newly adopted constitutional principles, the type of principles of which constitutional conventions are the expression.
Constitutional conventions thus contribute to the development of a shared constitutional language and allow for the maintenance of stability. In systems where they operate alongside a written constitution, they make the constitution work by fleshing out its abstract text and providing flexibility. As Fotiadou & Contiades have also argued, this flexibility allows constitutions to adapt in the face of crises.Footnote 59 It is this enabling of constitutions to adapt to challenges that constitutional conventions provide constitutional resilience.Footnote 60
Populist style meets constitutional convention
The term ‘populism’ is used rather loosely in public discourse. It evokes connotations with emotional or simplistic political discourse.Footnote 61 From radical-right leaders such as Geert Wilders, Marine le Pen and Donald Trump to left-wing Syriza in Greece and Bernie Sanders, all have been labelled ‘populists’. And although populism has been a political buzzword for decades, it is still a contested concept.Footnote 62 So much so that one may well question whether the concept has undergone stretching to such a degree that it has lost its analytical utility.Footnote 63 This raises the question whether our analysis of populism is not ultimately useless by the mere fact that there is no consensus on what it actually means to call political actors populists.
We think not. Admittedly, there is reasonable disagreement about the exact scope and content of the term populism. However, there is increasingly a sense of consensus about its basic features.Footnote 64 Moreover, while different approaches exist, these may be complementary rather than contradictory.Footnote 65 The fact that ‘there are different interpretations concerning the manifestation of populism is not necessarily problematic, as long as there is a consensus about the concept’s attributes. It seems reasonable to argue that populism can occur in various forms (e.g. style, strategy and ideology) and that its expression is not confined to a delineated set of political actors’.Footnote 66 We therefore briefly map the main approaches in political science. We subsequently clarify our own approach to populism.
Approaching populism
Populism features a multitude of approaches. It covers a spectrum ranging from what has long been known as the ‘popular agency approach’, well-known from the work of Lawrence GoodwynFootnote 67, and so-called ‘Laclauan’ approachesFootnote 68 to socio-economic approaches.Footnote 69 What these approaches have in common is that they are either predominantly normative or operate at the macro level of society’s democratic governance. These theories are less useful to discern specific features of the type of populist day-to-day politics on which we focus here. For present purposes, a more empirical analysis of populism, coupled with a conceptual approach, is warranted. There is no shortage of empirical approaches. Currently, probably the dominant empirical approach to populism concerns the ‘ideational approach’ as advocated by political scientist Cas Mudde.Footnote 70 He considers populism as:
a thin-centered ideology that considers society to be ultimately separated into two homogenous and antagonistic groups, ‘the pure people’ and ‘the corrupt elite’, and which argues that politics should be an expression of the volonté générale (general will) of the people.Footnote 71
Mudde considers populism as a ‘thin-centered’ ideology because it usually appears in combination with other ‘thick’ ideological elements.Footnote 72 Populism in this approach is firstly characterized by its dualist and Rousseauian attitude. Viewed through this lens, it might be maintained that populism should not be considered as undemocratic, because of its insistence on viewing politics as an expression of the people’s general will.Footnote 73 However, populism’s dualist attitude dividing society into opposing actors does render it anti-liberal democracy, in that it rejects the liberal idea that majoritarian democracy must be counterbalanced by institutional and systemic protection of individual and minority rights.Footnote 74 Scholars, such as Müller,Footnote 75 RummensFootnote 76 or Urbinati,Footnote 77 question whether democracy without liberal safeguards can exist. They contend that the anti-liberal character of populism automatically creates a threat to democracy, mainly due to the populist rejection of the tendency of pluralism, legitimate opposition and their generally poor record of respect for liberal democracy’s institutions that happen to get in their way.Footnote 78
Despite the popularity of Mudde’s approach, the ideational approach raises some concerns.Footnote 79 To begin with, the ‘chameleonic’ nature of populism raises questions whether it is so ‘thin’ that it has lost its conceptual utility.Footnote 80 Moreover, although the ideational approach is useful in enabling classification, i.e. to distinguish populists from the crowd, it approaches them as an ‘either/or’ category, a binary between populist and ‘mainstream’ politicians or, in different words ‘as a property’ of the actor, rather than of a specific message.Footnote 81
It is, in the context of the present inquiry, important to recognize that populism is not a matter of certain individuals but can, to varying degrees, be present in the repertoires of many political currents. This is important because, as we will see, the demise of constitutional conventions cannot be solely attributed to a certain group, but rather to emerging practices across the polity. What we are concerned with here is not the effect specific people have on the constitutional system, but the effect of certain attitudes and modes of politics. These will, of course, be present strongest in the discourse of politicians who, for practical purposes, may be identified as ‘populists’. But they can, to some extent, also be discerned in the practices of others. An approach of populism as a matter of degree is therefore preferable.
This can be accommodated. Combining ideational with more discursive and performative elements led to the emergence of an approach of populism as a political style. This approach is performative in the sense that it works from the constructionist premise that ‘the people’ is an empty signifier performatively constructed by a political actor framing itself as its representative.Footnote 82 In this way, populism is conceptualized as a mode of politics grounded in a ‘representative claim’ materialized by a distinctive set of practices and performances.Footnote 83 Instead of a ‘classifier’, the term populism becomes a ‘descriptor’.Footnote 84
Although the roots of the style approach are older, and its body of literature decidedly richer, we focus on the work of Benjamin Moffitt as the most elaborate description of populism as a political style. Moffitt focuses on ‘the repertoires of embodied, symbolically mediated performance made to audiences that are used to create and navigate the fields of power that comprise the political, stretching from the domain of government through to everyday life’. Footnote 85 Conceptualizing populism in this way, Moffitt argued, not only enables a gradational approach, it also aids to understand populism in the broadest possible way, taking in discursive, rhetorical and aesthetic features. Moreover, it allows exploration of the relationship between populism and democracy ‘in a clearer way, considering perhaps how populism attempts to cut through the complex messiness of contemporary politics and, indeed, how this political style may present an immanent critique of certain forms of democratic politics’.Footnote 86 Viewing populism as a political style may also be helpful because of its focus on behaviour. Ideas themselves cannot explain their consequences, nor do they aid the formulation of hypotheses about how populism connects to the weakening of liberal democracies.Footnote 87 Since we aim to explore the relationship between populism and constitutional conventions, we use the political style approach to identify populism’s core characteristics.
The populist style is marked by three characteristics: ‘appeal to “the people” versus “the elite”’, ‘crisis, breakdown or threat’ and ‘bad manners’. Footnote 88 The appeal to the perceived contrast between ‘the people’ and the ‘elite’ is central to grasping the other two elements, and it illustrates clearly the connections between the style approach and other approaches such as the ideational approach. This element draws on the construction of ‘the people’ as a central notion.Footnote 89 It is often used in three different contexts. First, as a source of legitimate sovereign power.Footnote 90 Second, ‘the people’ in the populist vocabulary may also refer to ‘the common people’, a group ‘objectively or subjectively excluded from power due to their socioeconomic status.’Footnote 91 Hence, reference to the common people is often a critique of the dominant elitist culture. This links to an anti-establishment movement against (democratic) institutions. Third, ‘the people’ may be used to refer to the nation, defined in terms of national community – a homogeneous, usually idealized form of society that is now widely known as ‘the heartland’.Footnote 92 This heartland is set against some ‘Other’, a category serving as the embodiment of a threat to the sovereignty of the people by depriving it of its rights, values, identity and voice.Footnote 93 The ‘Other’ can either be an elite, but it may also be some ‘alien’ (ethnic) minority group.Footnote 94 As vague as the concept of ‘the heartland’ generally remains in the populist logic, it is usually fairly clear who is excluded.Footnote 95 By vowing to return sovereignty to the people, the populist style is focused on restoring this heartland. In this way, ‘populists play on the idea of communities which have lost what they once had and will lose everything if they do not find their voice now and make it heard − rather than remaining as the silent, oppressed majority’.Footnote 96 It is here that Moffitt’s second element, the constant sense of crisis, breakdown and threat (the idea that ‘soon it will be too late’) turns up. The evocation of crisis leads to a desire to act decisively and immediately, enabled through simplification of the political debate.Footnote 97
This sense of crisis, and the perceived necessity to act vigorously in order to restore the heartland, may at least partly explain the third core characteristic of the populist style: ‘bad manners politics’ – the disregard for ‘appropriate’ modes of acting in the political realm.Footnote 98 The insistence on exceptional policies and modes of politics after all requires, and thus justifies, the breaking of taboos. Moreover, ‘bad manners’ also serves to underline the connection of the ‘ordinary’ populist leader and the common people.Footnote 99 It is this aspect of populism that is central to our present inquiry, and we flesh it out in the following section.
‘Bad manners’: Populism as a transgressive style
The conceptual link between what we now call ‘bad manners politics’ and the populist style is hardly new, although it has undergone considerable developments. Already in 1999, Canovan pointed at the ‘tabloid style’ of combining coarse language with simple solutions and a fundamental distrust of compromise, complicated procedures ‘and technicalities that only experts can understand’.Footnote 100 This style, aimed at appealing to ordinary people, drew on the assumption that (procedural) complexity is a self-serving racket perpetuated by professional politicians. Mudde has aptly characterized this as ‘politics of the stammtisch’: a highly emotional discourse that is shaped by anti-intellectualism and technocracy.Footnote 101
The first, however, to formalize this conceptual link between populism and stammtisch politics was Pierre Ostiguy. Suggesting that the traditional left-right axis was insufficient to describe populist parties, he introduced an additional ‘high-low’ axis, based on the specific (cultural) ways in which politics is performed. For Ostiguy, ‘high and low concern ways of relating to people; as such, they go beyond “discourses” as mere words […]. As a way of relating to people, they also encompass the way of making decisions’.Footnote 102 The high-low axis, which runs orthogonal to the left-right axis and thus does not depend on traditional ideology, is divided into two subdimensions: socio-cultural and political-cultural. The first is concerned with manners, demeanours, conversation and tastes. The high road displays politicians attempting to appear suave, well-behaved, proper and well-mannered, but they may also appear stiff, distant or boring. Moreover, high road politics also tends to use (at times even overtly) rationalist or ethically oriented discourse.Footnote 103 Low-grid politics involves politicians using folksy or raw language, tastes and manners. The second (political-cultural) subdimension of the high-low divide refers to forms of leadership and advocated modes of political decision making.Footnote 104 Whereas the high road takes to institutionally mediated models of authority, rules and procedures (with some displaying a preference for bureaucratic or legalistic forms of decision-making), the low road is personalistic. It favours strong, decisive leadership which derives its authority, not from procedures or laws but from ‘the people’ themselves and which features a leader who ‘gets things done’.Footnote 105
Ostiguy’s high-low axis was an important analytical tool, yet it raised questions. Although there is no shortage of populists adopting a vulgar style, some populist politicians can hardly be said to appear ordinary or common.Footnote 106 It thus seems that the high-low axis is conceptually overbroad. It assumes too much and accounts too little with respect to actors who are generally categorized as populists. What Ostiguy called ‘flaunting of the Low’ should therefore not be considered a style in itself, but rather a specific expression, a variant, of a broader enterprise aimed at creating distance between the populist leader and other ‘mainstream’ political actors.Footnote 107 One clear strategy of creating contrast is by rejecting the ‘high’ norms of elite politics. ‘Performatively breaking the conventions of politics’ is thus a way of creating the kind of authenticity that mainstream politicians perceivingly lack.Footnote 108 This focus on norms is, for instance, visible in Benjamin Arditi’s powerful image of the populist as the drunken dinner guest:
He can disrupt table manners and the tacit rules of sociability by speaking loudly, interrupting the conversation of others, and perhaps flirting with them beyond what passes for acceptable cheeckiness […] Populism plays the role of the awkward guest. It is a paradoxal element that functions both as internal moment of liberal democracy and as a disruption of the gentrified domain of political performances.Footnote 109
This image forms the basis for the concept of ‘bad manners’. Unlike Ostiguy, who suggested that the high-low axis constituted a fully-fledged alternative to other approaches focusing mainly on the antagonistic binary relationship between ‘the people’ and the elite, Moffitt pragmatically included ‘bad manners’ as a version of ‘low road politics’ into his definition of populism, but only as one of three aspects of the populist style, stressing the close links to an appeal to the people and the element of crisis. ‘Bad manners’ for Moffitt is also more norm-oriented than Ostiguy’s conception of ‘the Low’. Ultimately, according to Moffitt, populist insistence on breaking the conventions of politics is about effectively creating the appearance of ‘ordinariness’ and distinguishing themselves from ‘the elite’.Footnote 110 ‘Bad manners’ in this respect is thus defined as ‘populist leaders apparent disregard for “appropriate” ways of acting in the political realm.’Footnote 111 This definition is deliberately flexible because it may be manifested in numerous ways depending on what may be considered bad manners in any specific polity.Footnote 112
It is important to note that the concept of ‘bad manners’ is by no means limited to written or unwritten (quasi) legal norms such as constitutional conventions. Quite the contrary: much like its conceptual ‘flaunting the low’ sister, the concept was developed as part of a holistic, performative approach to populism, which aspires to move beyond ideational, discursive or strategic approaches to populism by including cultural and aesthetic dimensions. Thus, the type of norms that the concept ‘bad manners’ relies on may include political or societal ‘taboos’ (mentioning the unmentionable, claiming to say ‘what everyone thinks’), dress codes and basic norms of interpersonal respect in debate. Examples of ‘bad manners’ may include the use of disrespectful or offensive language and blatant disregard for traditions. More importantly, ‘bad manners’ can be expressed through political incorrectness or accusations of misbehaviour.Footnote 113 However, in the broadest possible sense, ‘bad manners’ may also just mean ‘acting or presenting in more “colourful” ways than one would expect from politicians’.Footnote 114 President Chavez of Venezuela dancing in his own TV show, U.S. presidential candidate Herman Cain releasing campaign videos of rabbits being catapulted in the air: hardly the kind of decorum that is normally associated with ‘respectable’ politics. Footnote 115 In short, we might say that the concept of ‘bad manners’ refers to norms in the broadest possible sense and includes ‘conventions’ beyond those in the constitutional sense.
At the same time, the concept of ‘bad manners’ does include the type of norms that lawyers tend to be familiar with: traditions, unwritten law and constitutional conventions. This is illustrated by Sithembile Mbete’s account of the South African Economic Freedom Fighters use of ‘bad manners’ politics.Footnote 116 The party engaged in a number of practices challenging existing norms, ranging from its ‘revolutionary dress code’ and its adoption of military language (both socio-cultural norms) to its disdain for parliamentary rules (legal-political norms).Footnote 117 Whether it concerns its use of the parliamentary rulebook to hijack proceedings or its challenging of the legitimacy of these rules, both were manifestations of a species of ‘bad manners’.Footnote 118
Much of the work on populism now signals populism’s tendency to break taboos and its disregard for ‘appropriate’ ways of acting in the political realm.Footnote 119 Moreover, the concept of ‘bad manners’ is an instructive analytical tool for our present inquiry. Yet it is not without flaws. Its reliance on a normative binary between ‘good’ and ‘bad’ manners politics for instance. Whether one calls it ‘the low’ or ‘bad manners’, there is an assumption of a moral high ground, and it is occupied by existing elites. Moreover, Moffitt’s use of the concept of ‘bad manners’ seems underdeveloped in the sense that it assumes a static relationship between the actor and the norm. His account is one-dimensional: it enables us to see who is a populist by identifying the violation of a given norm. Yet ‘bad manners’ is not just a property or a practice, it is also a process. A process that may have implications for the norm in question. By violating the norm, its contents may change, depending on the attitudes and actions of other actors and the audience. This is particularly the case for (constitutional) conventions, which, after all, are often unwritten and open to interpretation. Put differently, hostility to ‘usual practices of the political game’ may yield a transformative potential. This may not be important for Moffitt’s goal of establishing what constitutes populist conduct, but it does raise questions when, as in our case, the perspective is not the populist conduct as such, but rather the interaction between actors and norms. Recognizing that ‘bad manners’ is a dynamic process in which a norm is not just violated but can also be simultaneously altered or even destroyed allows for a broader perspective. It may, for instance, explain why some populists, particularly when (firmly) in power, are less hostile to conventions and tradition than expected. Indeed, pragmatist populist actors may even actively invoke certain traditions.Footnote 120 It is just that these are different traditions from the ones that mainstream elites would consider to be part of ‘appropriate politics’.Footnote 121
The concept of ‘bad manners’ is therefore fruitful, but it needs development. Building on Moffitt’s work, communications scholar and political scientist Théo Aiolfi advanced the notion of the ‘transgressive style’: ‘the violation of a norm of political relevance, whether that norm is directly political, socio-cultural, ethical or legal. As such, transgression is a versatile concept that encompasses a multiplicity of disruptive practices situated in the specific political context where they take place’.Footnote 122 Originally a sociological concept, transgression is generally taken to mean ‘that which exceeds boundaries or exceeds limits’.Footnote 123 In the socio-legal context, transgressions are more specifically referred to as ‘intentional and purposeful actions that publicly breach the dominant norms’.Footnote 124 These norms being defined as ‘standards of appropriate behaviour for actors with a given identity’.Footnote 125 For present purposes, we confine ourselves to norms that regulate the constitutional process, whereby the relevant actors are occupants of, or seeking, political office.
Transgressions are context-sensitive. They capture a wide range of disruptive practices that cover a potentially infinite number of norms, whether explicitly codified by written law, recognized as unwritten law or (constitutional) convention or grounded in implicit customs such as the dress code in parliamentary assemblies or the level of language used during a rally.Footnote 126 Drawing on the work of Georges Bataille, Aiolfi stresses the symbiotic relationship between norm and transgression:
While a transgression only makes sense in the context of the norm that it breaks, the opposite is also true: a norm only exists because there is a way to transgress it. Without the possibility for it to be broken—the eventuality of an “anormal” situation—a norm would not even be conceivable. In other words, every norm contains within its very definition the potential for its own transgression: a norm only “[exists] for the purpose to be violated”. Footnote 127
As sociologist Chris Jenks puts it: ‘human experience is the constant experience of limits (…). Constraint is a constant experience in our action, it needs to be to render us social’. However, ‘any limit on conduct carries with it an intense relationship with the desire to transgress that limit’.Footnote 128 Transgression is thus a component of the norm itself, and transgressive behaviour as such does not deny limits or norms, rather it exceeds ‘and thus completes them’. In this view, the concept of transgression constitutes a dynamic force: it prevents stagnation by breaking the rules while simultaneously reaffirming the existence of those rules, thus ensuring a degree of stability.Footnote 129 Aiolfi thus concludes that: ‘transgressive attempts paradoxically reinforce the existence of the norm. That said, repeated transgressions can become “normalized”, thus displacing, or even replacing the old norm with a new one’. Footnote 130
An important aspect of transgression is contestation. Transgression is not just the crossing, but rather the deliberate contestation of a line. Transgression should therefore be distinguished from so-called ‘secret violations’, in which case the actor involved violates a given norm but sustains the image of norm compliance.Footnote 131 Thus, when the government of Boris Johnson excessively lied to Parliament, in order to cover up for repeated violations of its own Covid-19 rules (the so-called ‘Partygate’ Scandal) – thereby violating a convention of ministerial responsibility – it did not contest the existence or the scope of those norms, rather it attempted to maintain the impression of a compliant government.Footnote 132 That is not an instance of transgression. Yet when President Donald Trump refused to distance himself from his private business, citing the formal rule that presidents are exempt from conflict-of-interest rules placed on federal officials, he nonetheless violated the unwritten conventional norm that presidents act as if these rules apply to them.Footnote 133 By explicitly and openly holding on to his business, President Trump not only violated, he contested this unwritten norm. Similarly, his flouting of the constitutional appointments process by relying heavily on acting officials rather than having them confirmed by the U.S. Senate arguably ignored the norm that temporary appointments should be the exception rather than the rule. Of 757 positions requiring confirmation, the Trump administration omitted a nomination in 133 cases. Again, it was the norm as such that was implicitly questioned: ‘I like “acting”’, the President told reporters, ‘It gives you great flexibility’.Footnote 134 And when the appointment of two officials was considered unlawful, the administration contested this finding.Footnote 135 Both of these cases illustrate what transgressions look like.
A second aspect of transgression is that it is a performative act: a process through which actors convey and define their identities.Footnote 136 This implies the existence of an audience that is crucial both for the transgression itself (without any indignation by other actors, or excitement with the public, no transgression would emerge) but also for the continued existence and the operation of the norm. Put differently, a transgressive act does not just contest the norm, it presupposes a reaction to the transgression. When this reaction fails to materialize, the norm in question is not enforced, either by judicial or political institutions, or (informally) by the general public. In short, the norm is eroded, may even have ceased to exist.
Populism meets constitutional convention
Viewing populism through the lens of a transgressive style allows us to analyse its relationship towards constitutional conventions as the legal-constitutional species of ‘appropriate politics’. Having fleshed out the concepts of constitutional convention and populism, we now summarize our argument that a causal link exists between populism and the erosion of unwritten systems of constitutional conventions. The main arguments that support this hypothesis are set out below. We then seek to build the foundations of a model aimed at differentiating various forms of transgressive populist behaviour.
Constitutional conventions are likely to incite populist aversion, largely because of their origins as rules of ‘the elite’. Conventions regularly embody tradition, and they often date back many decades. In established democracies such as the United Kingdom and the Nordic countries, many existing conventions go back to the 18th and 19th century – a time in which politics was still largely a matter for the aristocracy and the upper-middle class.Footnote 137 The model was ‘one of democratic elitism, whereby electors periodically chose between competing political elites, and day-to-day checks […] depended on ministers and civil servants knowing how to behave. If something was “not the done thing”, they [did] not do it’.Footnote 138 And although politics democratized on the waves of 20th century emancipation, politics remained largely a matter for the upper middle or educated classes.Footnote 139
It is here that the tension with populism arises. The use of ‘bad manners’, of which convention-trashing is a part, is instrumental in the populist effort to distance itself from ‘the elite’. Moreover, the fact that constitutional conventions are rules of elites sits rather badly with populism’s insistence on popular sovereignty.Footnote 140 Both the creation of constitutional conventions and their interpretations are the products of an interactive yet informal process, and not of a formal democratic decision-making process such as would be the case with legal rules.Footnote 141 They are ‘a matter for ministers, civil servants and palace officials’ since these have access to knowledge about precedents.Footnote 142 Given its Rousseauian approach to representative politics, populism is hostile to constitutional conventions, since these are not an expression of the ‘general will’, but remain a matter for the few. Conventions as norms that regulate the orderly and stable relations between institutions can thus largely be viewed as part of the constitutionalist perception of republicanism, with its insistence on the separation of powers rather than on the Rousseauian version of democracy that populists adhere to.
‘Good chaps no more’: Effects on constitutional resilience
Our analysis revealed that the rise of populism has inherent implications for the future of constitutional conventions in liberal democracies. So what? Is this not just part of the ‘normal’ process of political change? Who says these are changes for the worse? In order to properly evaluate these questions, we need a deeper understanding of the nature of populist transgressions of constitutional conventions and their effects on the stability of the legal-political system of which these conventions are a vital part. To that end, we first flesh out a typology of possible transgressions (4.1). Not every transgression poses a serious threat to the Constitution. Yet some evidently do. We then focus on the viability of constitutional conventions, outlining the main mechanisms aimed at protecting existing constitutional conventions (4.2). Our analysis yields that the system can be vulnerable, but that this depends substantially on contextual factors: the populist’s audience (i.e. other political actors or the electorate), the nature of and the response to the transgression. Moreover, as we will see, the modification or erosion of a convention might not in itself be constitutionally illegitimate, particularly given its function of ensuring flexibility in the promotion of constitutional values.
The nature of transgression: A typology
How to evaluate the transgression of a constitutional convention? As set out above, the idea of transgression is not necessarily problematic for the existence of a norm. Indeed, transgression plays a pivotal role in establishing and confirming a convention. The exception enables us to see the rule. Moreover, transgressions can also be crucial to the necessary processes of modernization. Who would deny that Linda Brown and her parents were justified in applying to a so-called ‘white school’ despite unjust norms of school segregation, thereby triggering the 1954 U.S. Supreme Court judgement in Brown v. Board of Education?Footnote 143 And yet, it is equally clear that some transgressions are a threat to the stable and effective functioning of the constitutional system. So, how to filter benign transgressions from those endangering constitutional resilience?
The concern for populist transgression of informal norms has already been subject to conceptualization. In 2018, Josh Chafetz and David Pozen offered a typology based on two axes.Footnote 144 Taking the perspective of constitutional change, they first showed that this could occur through downright destruction of a convention (by explicitly repudiating it), by what they called ‘decomposition’ (the gradual change over time of a norm, by way of interpretation), and finally displacement of the norm by a written legal rule (codification). They then distinguished three types of transgressions, each leading to either destruction, decomposition or displacement. On the one hand, norms could be substantively contested. For instance when a Republican senate majority first refused to consider President Obama’s judicial nominee for the Supreme Court, citing a convention that the Senate no longer acts on presidential nominations for a Supreme Court vacancy in a presidential election year, and then four years later saw no reason not to proceed with the nomination of outgoing President Trump’s candidate, citing the inapplicability of this convention when the President’s party commanded a majority in the senate.Footnote 145 This illustrates that the substance of the norm can be a matter of dispute. Examples of more blatant disregard of conventions concern President Trump’s insistence that his Vice President could and should make full use of a supposedly discretionary power as President of the Senate, to unilaterally reject the electoral votes of his opponent when certifying their counting in the SenateFootnote 146 and his decision to dismiss the FBI Director responsible for investigating potential criminal behaviour by the President and his inner circle thereby violating the informal rule that the President respects the independence and discretion of federal criminal law enforcement.Footnote 147
Chafetz and Pozen identify a second category of transgressions, in which not the substance of the norm but the person of the transgressor takes centre stage. This happens when a political actor (implicitly) claims that the norm in question does not apply to them. Both President Trump and Prime Minister Johnson have, at times, hinted at some Schmittian notion that conventional rules of politics do not apply to them due to their supposedly pivotal role in history.Footnote 148 Lastly, the authors identify what we might call the ‘override’ category of transgressions. In these cases, the transgressor cites specific contextual circumstances or a higher norm in order to justify the derogation from ordinary constitutional conventions. The invocation of crisis and popular sovereignty in the context of the Brexit process under the Johnson administration is a case at hand. In a slightly different context, the refusal of Dutch cabinet minister Rita Verdonk to step down after what was at the time considered to be an implicit parliamentary motion of no-confidence can also be illustrative. The minister did not deny the existence of a conventional rule of parliamentary confidence. And although she offered no justification for her decision not to step down, her conduct was later defended with reference to the exceptional constitutional circumstances of the case.Footnote 149
Chafetz and Pozen’s main argument is that the gradual destabilization of norms by way of decomposition is more worrisome than direct transgressions, at least under certain socio-political conditions, which can be summarized as the well-functioning of democratic institutions, distribution of power, a strong press, etcetera.Footnote 150 They showed that President Trump’s frequent flouting of informal norms was consistently met with firm resistance from other actors and vigorous public debate. The norm flouter, they argued, is forced to offer justifications, leading to sustained public deliberation, something that is less likely to be sparked by norm decompositions. Explicit norm flouting thus generates its own resistance.
This is an important and valid point. Yet it is incomplete. The argument solely considers the temporal element of constitutional change and ignores the substantive aspect. Take, for instance, the constitutional convention that members of the German Federal Constitutional Court are traditionally recruited by and from the ranks of the two major political parties (Christian Democrats and Social Democrats).Footnote 151 In a gradually changing electoral world, there is little reason why the political institutions charged with appointing judges to the court would not subtly change this convention to become more inclusive. There might even be a democratic impediment to such a course. Decisive is not the procedural way in which the convention evolves, but its changing relationship to its underlying constitutional principles. This is what we might call the substantive aspect of change.
There is, however, a more fundamental reason why the decomposition-is-more-worrisome-argument is not the whole story. The thesis fails to recognize the crucial connection between compliance and the socio-political conditions necessary to sustain resilience. These conditions presuppose a culture in which certain norms are, at least to some extent, shared. This is particularly the case for norms that specify the rules of the game. Sure, these norms can be contested. Yet the degree to which they are, and the willingness of the polity at large to accept them, largely determines the stability of the system. Put differently, although it is true that any transgression organizes its own resistance, an endless sequence of transgressions seriously jeopardizes the willingness of other actors to defend the norm in question – particularly when this involves political costs. This is all the more so when, as with constitutional conventions, these norms are pictured as fundamentally elitist and at odds with the interests of the electorate. Why would any of us keep honouring the outcome of elections when our opponents can freely deny them without suffering any serious electoral consequences?Footnote 152 These electoral consequences depend on public attitudes that are, in turn, shaped by the actions of office-holders.Footnote 153 As political scientist Lisa Gaufman and political geographer Bharath Ganesh remark in a recent book about Trumpism:
Trump’s carnival is a celebration of the transgression of all the rules and norms of democracy. However, these transgressions and violations go well beyond Trump on the debate stage or his Twitter or Truth Social account. His transgressions encourage others to do the same. In this sense, carnival is a participatory culture of transgression […].Footnote 154
In short, the flouting of a norm therefore has an impact on public attitudes with respect to that norm. Again, this need not be a bad thing. Public deliberation about the future of norms should sometimes be triggered by their deliberate transgressions. Our claim here is only that the destruction/decomposition thesis is incomplete, and that the Chafetz–Pozen typology needs further refinement. Whereas their argument proceeded from the perspective of the norm itself, we seek to add the perspective of the transgressor. Motives, after all, matter.
As we noted before, not every instance of non-compliance is a transgression. What defines the latter is the performative aspect. As norms generally reflect ‘collective expectations for the proper behaviour of actors with a given identity’, a performative violation of a norm (a transgression) constitutes ‘a public process for conveying and defining an actor’s identity’.Footnote 155 This means that the identity of transgressors, as the way in which they perceive themselves and their relationship to the norm, is crucial for evaluating the potential impact of the transgression on the sustenance of the norm itself. It would thus be helpful to enrich the typology of transgressions with the dimension of self-identity. International relations scholar Miles Evers offers a useful starting point here. He distinguishes between both the insider/outsider perspective of the transgressor and the regulative/constitutive aspect of the norm.
The first distinction refers to the extent to which actors involved view themselves as insiders to the legal-political system. Actors with an insider self-identity consider themselves jointly responsible for the system of which the norm in question forms part. Transgressors ‘who identify as insiders recognize that their behavior does not conform to the expectations […] of other insiders’, but they view this as modernizing.Footnote 156 Outsiders, on the other hand, picture themselves as disempowered by the dominant norms set by insiders and excluded from the political system. Transgressors who identify as outsiders ‘will use their noncompliant behavior to attract condemnation from insiders and to prove their substatus to others’.Footnote 157 The second axis focuses on the substantive nature of the norm violation: does it affect the norms regulative, or rather its constitutive aspect? In the first case, the prescriptive standards of behaviour of the norm are assailed. The transgressor may, for instance, engage in highly polarized personal attacks against a fellow MP in violation of an unwritten norm prohibiting the use of offensive or accusatory language in parliament. Constitutive violations, on the other hand, concern the fundamental standards that define the categories and identities between different actors.Footnote 158 The question here is to whom the norm applies, or who can claim its protection.
This led Evers to identify four types of transgressions: adaptation of a norm, its rejection, inclusion and exclusion. Adaptative transgression concerns situations in which insider-actors attempt to change what until then was considered appropriate behaviour for insiders. The transgressor takes full responsibility for the system of norms, but signals that a change is needed. The classic example concerns female U.S. senators wearing pants on the Senate floor to challenge patriarchal expectations of what female senators should look like. Similarly, when the current king of the Netherlands, William-Alexander, assumed the throne in 2013, fourteen left-wing MPs and senators refused to take the conventionally required oath of loyalty to the monarchy, arguing that such an oath was archaic and violated their democratic right to call for constitutional reforms.Footnote 159 The MPs involved did not challenge the legitimacy of the monarchy as such, nor did they view themselves as outsiders. They simply argued for a different, in their view, more modern constitutional understanding of the current relationship between the monarchy and parliament. We might consider this as an insider attempt to adapt the constitutional norm.
Compare this to another instance of the general left-wing preference for republican forms of government. The social populist party Podemos is well-known for its hostility towards the Spanish monarchy. During a visit of the Spanish king Felipe to the European Parliament in 2015, and later when he opened the Spanish legislative session in 2016, MPs of Podemos openly challenged the conventional norm of monarchal neutrality, refusing to greet the king or applaud after his speeches, staying seated during the national anthem and wearing casual sweatshirts with dismissive texts on it.Footnote 160 Podemos leader Pablo Iglesias later explained his party’s classic dilemma: while not wanting to stay away – thereby risking to alienate large sectors of the population who felt sympathetic towards the king – the party still wanted to avoid that ‘Podemos appears surrounded by the parties of “the Caste”, respecting the institutional framework (…) So what did we do, in this uncomfortable, contradictory scenario? We went, with our usual aesthetic – causal dress and so forth, disregarding their protocol’.Footnote 161 This stance may usefully be contrasted with the previous ‘Dutch’ rejection of the oath of loyalty to the monarchy. Whereas the Dutch Social Democrats opted for adaptation from a position of shared responsibility for the system, Podemos chose to reject from the position of the outsider. This is what might be called a rejective transgression. It takes place when outsiders violate the regulative aspect of a norm to embrace their exclusion from the political system and imbue it with positive meaning. Actors thus attempt to distinguish themselves from insiders by acting in ways expected of outsiders. It has become clear that populist uses of vulgar and pejorative language are not intended to modernize parliamentary procedure, but rather serve the purpose of creating the image of an outsider.Footnote 162
A similar exercise can be performed with respect to violations of the constitutive aspect of a norm. Inclusionary transgressions occur when outsiders commit actions that are considered to be the privilege of insiders. Take civil rights activist Rosa Parks, who, in 1955, refused to give up her seat for a white man on a bus in Montgomery, Alabama, thus resisting the laws of segregation. This transgression serves either the purpose of reducing divisions or widening the scope of entitlements flowing from the norm. Similarly, exclusionary transgressions provoke collective rethinking of the boundaries between insiders and outsiders, yet their goal is not to reduce divisions but rather to create new ones. In this case, actors construct a divide between different political participants or groups in order to strengthen their status as insiders, thereby violating an already existing norm. The Dutch Freedom Party has, for instance, on multiple occasions opposed the appointment of dual nationals to political office, citing perceived conflicts of loyalty to the state. In response to objections that this position violated constitutional principles of equal access to public offices, the PVV casually acknowledged that its position was contrary to those norms but noted that these should be changed.Footnote 163 The transgression of these norms clearly served the purpose of creating a new binary between ‘true’ Dutch citizens and ‘Others’ with different ethnical roots. Similarly, the introduction of the so-called muslim travel ban, enacted by President Trump in his first term, may be considered a similar exclusionary transgression of human rights.Footnote 164
Populist transgressions and conventions
The Evers typology usefully supplements Chafetz and Pozen’s conceptualization, in adding the dual perspectives of the transgressor and the nature of the transgression. It sheds light on the interrelationship between transgressions and the required cultural conditions for creating constitutional resilience. So, where does populism fit into the proposed typology? It certainly seems to display a preference for, what Chafetz and Pozen call, the destructive type of transgressions. Given that populism is a performative style, transgression needs an audience and a performative act. Outright repudiation of a norm works better in this respect than gradually changing the norm by decomposition. Moreover, decomposition implies an insider perspective: engaging in its interpretation presupposes taking some degree of joint responsibility for the norm. Decomposition, therefore, usually overlaps with the adaptive variant of transgression in the Evers typology. Given populism’s insistence on taking the outsider perspective, it seems logical to assume that populist transgressions fall squarely in the rejective/destructive type of transgressions.
Unlike Chafetz and Pozen, however, we would deny that these destructive transgressions are any less dangerous to the constitutional system because they would invite their own resistance and facilitate public deliberation. Whereas adaptive (insider) transgressions serve the purpose of attracting public deliberation about a specific norm, things are different when actors take the outsider perspective. These transgressions are meant to create division rather than to foster debate about the norms’ future. This means that any reaction to the transgression does not meet with any meaningful justification or deliberation, but rather with more transgressions. And while it is true that norm rejections may evoke resistance from other institutions, this resistance itself only serves the purpose of creating distance and reinforces the image of a powerful elite forcing its will upon the people’s representatives. In the long run, the political costs involved with resistance may turn out to be less attractive. This is troublesome from the perspective of constitutional resilience because norm transgression is a structural aspect of populism as a political style. Whereas insiders occasionally attempt to provoke discussion about a certain norm, bad manners politics is a continuous effort to flout the system through its norms. It is this structural element that poses a serious threat to the resilience of any constitutional system.
This structural element is also problematic with respect to so-called override-transgressions: those cases in which the transgressor accepts the norm as such but argues that specific circumstances or a higher norm requires its override. This is particularly relevant for constitutional conventions, given that they usually offer the system some flexibility in dealing with contemporary challenges. Under a normal state of affairs, political actors accept adherence to a convention as the rule while simultaneously leaving room for divergence in exceptional situations. The override in itself is therefore not necessarily problematic in terms of resilience. The problem is that populism displays an ongoing element of crisis, which, as we have noted, is always imminent in its repertoire. This makes the constitutional convention particularly vulnerable. And with it, the resilience of the constitutional system.
The turn to resilience: Whither constitutional convention?
We have argued that populism as a political style is generally hostile to constitutional conventions. In the previous section, we have identified structural reasons why this poses a potential problem for the proper functioning of conventions in the constitutional system. The question remaining is whether and to what extent this affects the system’s resilience. As we noted before, a key component of constitutional conventions is that they are at least partly dependent on the conviction of political actors for their existence as binding norms. This implies that the transgression of a conventional norm may (although not necessarily) have consequences for its future existence. Without proper justification or an effective defence of the norm by other actors, it will cease to exist.Footnote 165 This leads to the ancient dilemma that any constitutional system that relies on political actors to shape the constitution on the basis of institutional interests can become unstable.Footnote 166 In any case, it requires political actors to either display a strong constitutional ethos – which, as we have signalled in the previous sections, is in stark contrast with the populist style – or it requires a political set-up in which the enforcement of a convention is ensured by organizing institutional self-interest amongst different political factions (or, as Tushnet would have it, second-order calculations about the consequences of disregarding the norm). In Madisonian words, ‘ambition must be made to counteract ambition’.Footnote 167 That is hardly a recipe for stability.
One might question whether that is problematic. We already cited Tushnet’s assertion that stability is just one of several constitutional values. Democracy, human rights or surviving a national crisis may also be legitimate concerns. Constitutional hardball is sometimes a legitimate game to play; it may even be a mode of resilience itself. The thing is that not every instance of hardball, not every threat to the stability of the constitutional system, is legitimate. The argument we have developed in the previous sections is that this legitimacy rests upon two pillars. First, as we have noted in above, true constitutional conventions do not just rest upon political practice. They are the expressions of a shared constitutional principle. Therefore, the legitimacy of engaging in constitutional hardball ultimately depends on the balancing of such a principle against other (arguably overriding) constitutional principles.Footnote 168 Conventions of constitutional forbearance were occasionally thrown overboard in 18th and 19th-century European parliaments, in order to establish new (unwritten) rules of parliamentary confidence, which in turn provided the necessary democratic legitimacy of unelected executive officials. As Tushnet argues, constitutional hardball occurs when a constitutional order is either on the brink of developing into a new order or when it is fundamentally in danger. Given the populist continuous insistence on crisis, it is plausible that populist actors couch their instances of transgression in terms of necessary constitutional hardball. And of course, sometimes they do have a point. Why should Podemos adhere to conventions pertaining to the role of the monarch in the political system when they perceive such a role as fundamentally undemocratic? These instances may therefore be both legitimate and not, as such, problematic. What may, however, be a real threat to constitutional resilience is the fact that crisis is an inherent, continuing feature of populism, so that constitutional hardball becomes the rule rather than the exception.
Secondly, we repeat that motives matter. While it is certainly possible that occasions of hardball are constitutionally acceptable, these instances presuppose an insider perspective. Balancing constitutional stability and the principle involved in maintaining the convention against other constitutionally legitimate interests presupposes a minimum degree of insider perspective. These instances of constitutional hardball are, therefore, in terms of the model we presented, adaptive transgressions. As we already discussed, the type of populism we outlined here departs from a totally different angle, which is much more destructive of the system. As became clear, the mere existence of a practice does not, as such, constitute a convention. Conversely, one might argue that the mere violation of a norm does not destroy it. That would require, first of all, the transgressor’s intent to deny the norm itself, and – more importantly – a normative justification.Footnote 169 Some authors stress the constitutional necessity of ‘objectivizing’ conventions: these exist, ‘irrespective of the personal views of the actors involved’.Footnote 170 Others maintain that conventions are a prescriptive standard of behaviour independent from the current beliefs of political actors.Footnote 171 The Jennings-test, mentioned previously, reflects this by requiring not just the subjective element of an internal conviction that the institution is bound by a conventional norm, but also a rationale for said norm.Footnote 172 As long as there is consensus about the rationale of a convention, it is, therefore, at least capable of surviving.
However, the mere fact that a rationale for the norm exists, as such, ensures neither its continued existence nor its effectiveness. Constitutional conventions rely on enforcement, just as any other norm. The fact that conventions are usually beyond the judicial realm is relevant here.Footnote 173 This is not to deny that there is a trend towards a greater judicial role in the (indirect) protection of constitutional conventions.Footnote 174 Yet these developments remain the exception rather than the rule.Footnote 175 This raises the question whether legislatures should codify existing conventions, in order to have them enforced. There are signs that some jurisdictions have taken that path.Footnote 176 While codification has some disadvantages (the main ones being that it takes away some of the celebrated flexibility of conventions, and that codification does not in itself ensure the existence of independent enforcement mechanisms)Footnote 177 there are also obvious advantages. For one, there is less risk of disagreement about the existence of the norm as such. Moreover, the formal publication of the norm may facilitate its enforcement either by other institutions or the general public. Last but not least, codification may enhance the norms’ legitimacy.Footnote 178 As described above, constitutional conventions are prone to populist disregard due to their elitist origins and informal character. While, unlike most written rules, constitutional conventions will remain elitist in origin, codification of conventions would get rid of their informal nature. This is particularly significant given the Rousseauian character of populism, which favours direct expressions of the general will over inherited, unwritten traditions. In this light, codification may bolster the legitimacy of constitutional conventions by aligning them more closely with the populist ideal that politics should be an expression of the general will of the people. Having said that, unless courts decide at some point to stretch the judicial realm into areas regulated by constitutional conventions, enforcement and resilience remain largely a matter of individual constitutional ethos.
Concluding remarks
This paper considered the connection between constitutional conventions and populism in the light of the resilience of democratic governance. A conceptual analysis of the two concepts reveals a plausible inherent tension between them. This explains and further confirms the image pointed out in recent literature, that populists seem hostile to constitutional conventions.Footnote 179 Current literature is largely silent about the rationale for this perceived hostility, and we have attempted to fill that gap. Populists, we contend, are wary of elitism, whereas constitutional conventions, particularly in the older democracies, are the offspring of the political and economic establishment. However, a deeper understanding of populism indicates that there are additional reasons for the populist hostility towards conventional rules of politics. For one, the creation of constitutional conventions by custom, agreement or declaration goes against the populist conception of popular sovereignty because it lacks direct participation of ‘the people’. Moreover, as performative theory demonstrates, populists also use conventions, traditions and other norms of ‘appropriate politics’ as a way of creating distance with others. By transgressing norms and by displaying ‘bad manners’, they seek to stand out from the crowd.
Is this problematic? To some extent, it is. Conventions generally depend on a minimum of constitutional ethos. They become vulnerable when this ethos is subject to erosion. Given that independent enforcement mechanisms tend to be absent, it is vital that political actors operate in a context of either a shared sense of constitutional morality or of self-interest. Compliance with constitutional conventions would be in the self-interest of political actors because of the reduced likelihood of unfavourable political developments in the future, due to the same limits being imposed on rivals and because non-compliance with constitutional conventions would have negative electoral consequences. As we have witnessed, this context is, to some extent, absent in the case of populism. Populists have a diverging sense of constitutional responsibility, and their political strategy is designed to achieve electoral success through transgression, rather than being ‘punished’ for any disregard of constitutional convention. All this puts the system of constitutional conventions seriously at risk.
Still, we maintain that transgression of a convention does not automatically imply its demise. Constitutional conventions may be considered as part of a legal-constitutional framework of principles upon which they are based. Transgression of a convention may affect the underlying principle, but it does not have to. And although judicial review remains exceptional, courts sometimes do enforce constitutional conventions implicitly, by referring to these underlying principles.Footnote 180 However, whether such a declaration will prevent the political actor from violating the convention in question is still dependent on the political pressure that results from the declaration and the extent to which this pressure would influence the political actor to change her or his course of action.
What are the consequences of this for the resilience of liberal constitutional democracies? Such resilience requires core constitutional values to be maintained throughout a crisis. To that end, it requires the capacity to limit the possibilities of undermining fundamental values. The ‘populist Zeitgeist’ seriously compromises, even if it does not completely destroy, the system’s ability to protect these values as expressed through constitutional conventions. As Blick and Henessy conclude, whenever ‘general standards of good behavior […] can no longer be taken for granted, then neither can the sustenance of key constitutional principles.’Footnote 181 Hence, when the system of constitutional conventions is put at risk, so is the maintenance of the fundamental democratic values of which they are an expression.
Further research is needed to empirically establish, for instance through ‘large-n’ studies, the extent to which conventions are vulnerable to populist override. Moreover, empirical research can also usefully contribute to the refinement of the present findings. An important question remaining is whether there are crucial differences between the different currents of populism in this respect. Are there differences between left- and right-wing (ethno-nationalist) populism in this respect? Much of the present literature we have built our analysis on describes populism as largely an oppositional political force. However, populism has now established itself in the heart of government power in many parts of the world, which begs the question whether populist actors in government are really as fundamentally hostile to unwritten norms as they seemed to be in opposition. Some of the examples we discussed seem to indicate that they are, but that conclusion is only tentative and is in need of testing. Another strand of research might follow up on the question of how the different branches of government may contribute to the ‘resiliencing’ of constitutional conventions. This involves the duties of civil servants in a democracy but also reopens classic debates about the proper role of courts with respect to constitutional conventions, particularly in the context of populist politics. Moreover, it forces us to expand these debates to other non-judicial mechanisms that could independently enforce constitutional conventions. Last but not least, both legal and empirical scholarship should confront both the extent and the normative evaluation of possible trends to codify constitutional conventions. In the long-forgotten words of the late Harvard political theorist Charles McIllwain:
When these conventions lose their effectiveness there will be a demand for law and the conventions will either be turned into laws or disregarded altogether.Footnote 182
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