Conservative counter-constitutionalism
The momentous changes in East-Central EuropeFootnote 1 around the year 1989 have been widely understood as ‘legal revolutions’ or ‘legalistic revolutions’,Footnote 2 ushering in the transformation of the former communist countries into liberal-democratic regimes. Close to 30 years have passed since the regime change, and the opposite appears to be occurring in parts of the region. We are witnessing counter-revolution by law, or counter-constitutionalism.Footnote 3 Observers identify, in Hungary and Poland, in particular, constitutional ‘capture’ by populist forces as well as defiance of and attacks on judicial institutions in the name of popular sovereignty and with a strong critique of liberalism.Footnote 4 What seemed to have been robustly institutionalised (‘consolidated’) constitutional-democratic regimes now appear to be grounded in fragile political and judicial institutional systems that are rapidly being replaced by rather different configurations of illiberal, or what some even see as autocratic, political design.Footnote 5 The current constitutional politics of the populists go strongly against the tide of 30-odd years of building constitutional democracy according to the liberal, legal-constitutional blue-print and point to a radically different type of constitutionalism.
The scholarly analysis of these developments largely emphasises the opportunistic, instrumentalist, and destructive nature of the populist projects.Footnote 6 As argued by Kim Scheppele, for instance: ‘Populists, in short, are opportunists who, in practice, put themselves and their eternal hold on power above any democratic appeal that they may have in particular moments’.Footnote 7
The argument in this paper is that too much emphasis is placed on the ‘power-realist’ and ‘opportunist’ approach taken by populists and too little attention for the ideational foundations and forms of critique present in populist counter-constitutional projects,Footnote 8 their relation to long-standing conservative narratives on liberal democracy, and the distinctive telos of populist politics. As Ewa Dąbrowska argues in the case of Poland, ‘There is scant academic literature on the ideas behind the political change realized by PiS since 2015’.Footnote 9
The paper argues that the current developments in Hungary and Poland need to be understood as an anti-liberal project and a conservative reaction to the liberal-legalist domination of the post-communist transformation process.Footnote 10 Conservative intellectuals and civil society groups have been gathering strength since the early 1990s, have increasingly radicalised and have become significant political forces which mobilise society and provide intellectual support, expertise, and legitimacy to populist projects. As Balázs Trencsényi et al. argue:
The radicalization of conservatism, which characterized the political and discursive landscape of the region after 2000, can be properly understood only in relation to the liberal ascendance of the 1990s. This is not only because neoconservatives constructed their own identity in opposition to liberalism, but also because their efforts to define the political divide in terms of exclusive cultural-ideological dichotomies can be traced back to the postdissident discourse, defining liberal politics in terms of a broad consensus.Footnote 11
It is, in my view, crucial to analyse distinctive manifestations of right-wing populism as distinctive political projects that mobilise anti-liberal, conservative forces in society, and to elucidate such populist rhetoric and practice as attempts to dismantle liberal-constitutional institutions in the name of a conservative, illiberal project which resonates with similar political developments elsewhere.Footnote 12
The aim of the paper is to contribute to a more systematic analysis of the ideas underpinning conservative populism in order to analyse its critical stance towards liberal understandings of the law and liberal constitutionalism. Such an exercise is important for at least two reasons: it exposes potentially weak or contradictory dimensions of liberal-constitutional and legal ideas and institutions but equally highlights the weaknesses, problematic dimensions, and forms of closure within conservative reasoning itself.
The paper will discuss, first, theoretical critiques of liberalism, taking as a significant example the works of Ryszard Legutko, a political theorist and a Member of the European Parliament for the Polish Law and Justice party (PiS). Second, I will identify the populist project of PiS in Poland (and to a lesser extent that of Fidesz in Hungary) as a conservative, counter-constitutional project which dismantles liberal institutions but equally attempts to institutionalise alternative constitutional orders. Third, I will discuss the populist critique of the liberal understandings of constitutionalism, the rule of law, and human rights, focusing on the PiS project of a Fourth Republic in Poland, and, fourth, I will engage with the populist critique of legal fundamentalism – understood as an excess of liberal legal norms – as a key dimension in the conservative, populist project of PiS.
A general critique of liberalism
While many observers regard the Hungarian and Polish populists as opportunistic, cynical, and power-grabbing politicians, it is difficult to deny that there is a distinctive normative and ‘ideological’ thrust to the discourse and policies of the Fidesz and PiS governments. The analytical state of the art reflects a classical distinction in the social sciences in which (predominantly) realist approaches emphasise power politics and its rational/materialist/interest bases, whereas interpretative approaches stress the substantive, ideational, and justificatory dimensions of politics. In this paper, I stress the importance of the second approach. It is my contention, following some of the insights in the recent literature in the fields of political science and sociology,Footnote 13 that the root of the populist constitutional projects in Hungary and Poland, and possibly elsewhere in East-Central Europe, lies largely in its ideational basis of anti-liberalism and conservatism.Footnote 14 Populists single out liberalism as the main enemy and display it as ‘evil and threatening’.Footnote 15 Anti-liberalism forms, in this, a core dimension of the ideational foundations of conservative populism. Returning to Trencsenyi et al.:
The new [conservative] ideological paradigm which questioned the legitimacy of the posttransition regime, while inheriting some elements from the anticommunist discourses of the early 1990s, targeted not only the inheritors of the communist power structures, but also those former dissidents who maintained that the fight against the vestiges of the communist regime was not their main priority. Many of the discursive patterns of the transition period […] could be incorporated into the new anticommunist ideological frameworks. While these concerns were originally advanced by liberal or moderate conservative authors, they were eventually transformed into arguments in favor of some combination of populism and authoritarianism. […] Political struggle was not framed in terms of a competition within a democratic procedural framework, but as a clash of fundamentally incompatible Weltanschauungen that aimed at changing the outlook, and often the very composition, of the political community once for all. Hence, any means, including the subversion of the procedural structures and constitutional rules, became legitimate to prevent the victory of the opponent.Footnote 16
For Polish conservatives,Footnote 17 liberalism – with its promotion of modernity and Western civilisation, and grounded as it is in moral decline, consumerist thinking, and negatively understood pluralism and multiculturalism – is undermining culture, religion, and national identity.Footnote 18 In Hungary, a similar conservative mindset is at the forefront of public debate as well as in politics.Footnote 19 In the words of Frank Furedi, the ‘political outlook of Fidesz is best described as a synthesis of conservative nationalism and Christian democracy’.Footnote 20
The focus on populist constitutional projects in Hungary and Poland reflects the contemporary prominence of those projects, but should not hide significant differences between the developments in the two countries. The nature of political and social forces in the two countries appears to be somewhat different. In Poland, the religious-conservative dimension and the role of the Catholic Church are more prominent, and both conservative and anti-populist liberal forces are strongly represented in civil society. In Hungary, in contrast, the ethno-nationalist, and less religious, dimension is most prominent, both politically and in greater society (e.g. ‘Civic Circles’), whereas anti-populist civil forces remain fragmented and weak. Factors that make the Hungarian and Polish trajectories, however, similar include the fact that both countries were front-runners in the process of democratisation, not least due to prominent manifestations of dissidence before 1989 and the fact that both countries were considered consolidated liberal democracies early on. A further significant and contrasting factor is that both countries were slow in adopting a new constitutional framework; in Hungary, the amended 1948 constitution remained formally in force until 2011 and in Poland, the new constitution was adopted only in 1997. Bruce Ackerman, for instance, has recently argued that the late adoption of the Polish Constitution and its limited societal support are main factors that serve to explain the current situation.Footnote 21 A further element of similarity (which is, in fact, the main focus of this paper) is the emergence of a strong critique of the liberalism and liberal-constitutional design of the post-1989 orders endorsed by politically conservative majorities, as evidenced by the ‘backsliding’ in those countries.
Before discussing the legal and constitutional dimensions of the conservative populist critique in greater detail in the second part of this paper, I suggest that it is useful to explore the general critique of liberalism raised by conservative thinkers. One comprehensive source – taken here as an exemplary instance of theoretical exploration of the conservative-populist critiqueFootnote 22 – is the work of Ryszard Legutko, who is both a political theorist and a Member of European Parliament for PiS. In particular, the recent book The Demon in Democracy (as well as other works by the same author, not least the short essay ‘What is Wrong with Liberalism?’) form a fruitful starting point for the analysis of the ideational bases of conservative populism.Footnote 23
In The Demon in Democracy, Legutko crafts an extensive argument in which communism and liberalism are depicted as overlapping in their ideological and politicising dimensions. That argument should not be taken lightly, because, as I will try to show in the second part of the paper, some of the conservative lines of argument are reflected in the political discourses and practices of the PiS party and hence reverberate in, or even affect the nature of, the populist project.Footnote 24 While I do not claim that conservative ideas are the only factor influencing populist politics in cases like Hungary and Poland, my contention is that we cannot understand those populist projects without paying systematic attention to conservative ideas and values. As Jeffrey Isaac argued in a debate on ‘illiberal democracy’, it is important to take populist declarations seriously and to attempt to understand what is meant by terms like ‘illiberal democracy’ in order to analyse the contested meaning of democracy. In a further step, he suggests ‘unpacking’ such terms in order to trace their ‘likely practical ramifications’ (as I try to do below with regard to PiS’ political project).Footnote 25
Legutko is surely not the only conservative intellectual who has provided ideas for the conservative populist project. In Poland, Marek Cichocki, Marcin Król, Dariusz Gawin, Lech Morawski, Zdzisław Krasnodębski and others are recognised as prominent intellectuals, whereas in Hungary inter alia András Lánczi and György Schöpflin, as well as constitutional court judges Béla Pokol and István Stumpf, perform a similar role.Footnote 26 The argument here is that Legutko and other like-minded intellectuals-cum-political/judicial elites have been playing an important role in legitimating and articulating the ideological underpinnings of the populist project, and have been at the basis of the upsurge in conservative ideas and related societal networks.
Legutko is a clear example of this; he has played an important role in the development and promotion of conservative ideas in Poland since the early 1990s. Rafał Matyja refers to Legutko as one of the ‘founding fathers’ of new Polish conservatism and a leader of conservative ‘meta-politicians’ – in other words, a critical figure allegedly at a distance from ordinary politics.Footnote 27 In the view of Trencsenyi et al., Legutko ‘exemplifies the evolution from a liberal conservative position in the 1990s towards straightforward anti-liberalism after 2000’.Footnote 28 Legutko has participated in various centres and think-tanks of conservative thought, published regularly on related themes, and founded the conservative cultural magazine Arka (later Arcana). He ‘perceived it as a strategic task to change the dominant political ideology in Poland and to imbue the new Polish democracy with their [conservative] values’.Footnote 29 In 2005, Legutko started to play a direct role in politics when he became the minister of education in the first PiS government (2005–07) and vice-marshall of the Senate. In 2009, Legutko entered the European Parliament. Currently, he is the co-Chairman of the European Conservatives and Reformists (ECR) parliamentary group.
Let us now turn to the critique of liberalism expressed by conservative populist thinkers. Liberalism is often understood in rather loose terms in the populist critique, and is frequently equated with neoliberal ideas about market forces as well as cosmopolitan ideas regarding European integration, human rights, and ’open society’. It is counterposed against native culture, historical ‘roots’, and the traditions of the local community. Legutko, for one, discerns a common dimension in the various expressions of liberalism, ranging from ‘radical free market capitalism to certain forms of the welfare state, from Ludwig von Mises to John Rawls, from Reaganomics to the European Union’.Footnote 30 In this liberal narrative, the first aspect that Legutko criticises is its alleged lack of weight.Footnote 31 In his understanding of liberalism, as expressed in an earlier essay, a ‘liberal is someone who takes a rather thin view of man, society, morality, religion, history, and philosophy, believing that this is the safest approach to organizing human cooperation’. In Legutko’s view, liberals are ‘united in their conviction that thinness of anthropological, moral, and metaphysical assumptions is the prerequisite for freedom and peace’.Footnote 32 He continues,
The lack of weight which one feels whenever one reads liberal works is an obvious consequence of the thinness of liberal assumptions, from which one cannot derive any profound insights.Footnote 33
The liberal approach is thus a ‘thin’ one, in that it understands thicker, non-procedural or more substantive ideas as a matter of private or group preference which ought not to be part of public politics. The argument that liberalism lacks weight is a variation on the well-known critique of liberalism as a formal-procedural idea which portrays liberalism as a dispassionate, instrumentalist view of politics.Footnote 34 According to Legutko, this also means that liberalism – in its ‘sterility’ – has little if anything to say about substantive, human moral questions; indeed, liberalism is ‘comparably simplistic and equally impoverishing’ [as was communist thought].Footnote 35 For Legutko, liberalism succumbs to a certain degree of hubris when it suggests that liberalism is a ‘higher’ solution for societal problems. Indeed, it places itself in the role of ‘architectonic organizer of society’ and wants to ‘dominate by performing the roles of the guardians of the whole of the social system and the judges of the procedural rules within the system’.Footnote 36 The contextual meaning of this view of liberalism is a strong critique of the dominant role of political and economic liberalism in post-communist transformation, criticising both the individualist and imitative/mimetic dimension of the former and the strong market-orientation of the latter.
A related problem is that of inauthenticity. While liberal rules are of a procedural, universalist, and inclusive nature, this comes at the cost, according to Legutko, of ‘being more and more remote from reality’.Footnote 37 In my view, the paradoxical nature of the argument against liberalism consists of the view that liberalism is both lacking in weight and omnipresent; it is penetrating and politicising society at an increasing rate. As I argue below, it is this part of the argument, in particular, that is crucial to an understanding of the populist approach to law and constitutionalism. The impact of liberalism on society is that it increasingly undermines ‘social hierarchies, customs, traditions, and practices that existed prior to the emergence of the new system’ [i.e. liberal democracy].Footnote 38 A key problem for conservatives is liberalism’s drive to egalitarianism, which renders ‘all social hierarchies [as] immediately problematic because they were, obviously, not natural’.Footnote 39 The egalitarian drive in liberalism means that no part of society is safe from liberalism’s political interference:
People might generally agree that they are all equal before the law, but this will not dispel the concerns of a dedicated egalitarian, who will argue that this principle is too abstract to be sufficient in every instance. After all, even if we respect equality before the law, other types of inequality and domination continue to exist and their existence is morally repugnant and cannot be tolerated. He will then add that the persistence of inequality and domination has its origin in their being moored in people’s customs and habits, which – as can be expected – considerably thwarts the principle of equality before the law.Footnote 40
This communitarian critique of liberalism emphasises the tendency to root out all forms of inequality, thereby destroying social communities: ‘Because egalitarianism weakens communities and thus deprives men of an identity-giving habitat, it creates a vacuum around them’.Footnote 41
This argument is consequential for the populist approach to the law. The anti-liberal critique argues that human rights – as legal norms that promote equality – are problematic in their undermining of the common good. Human rights become, in this reading, ‘arbitrary claims, ideologically motivated, made by various political groups in blatant disregard of the common good, generously distributed by the legislatures and the courts, often contrary to common sense and usually detrimental to public and personal morality’.Footnote 42 The argument is clearly a conservative one by which human rights are portrayed as protecting previously marginalised but now privileged groups against the interests of the traditional community and the ‘ordinary people’. One is reminded of Hirschman’s ‘perversity thesis’,Footnote 43 i.e. the populist claim that the liberal project achieves the opposite of what it promises (liberation). Rather than leading to a free society for all, the rule of law and liberal constitutionalism result in the dominance of distinct groups within society and their ‘oppressive’ cosmopolitan, (neo)liberal, individualist culture, to the detriment of large parts of society, understood as the ‘ordinary people’ with their local culture and mores.
Human rights and law, in general, are perceived as not neutral, but rather as instruments of particular groups in society. In contradiction to Legutko’s remarks about liberalism’s lack of weight, liberalism (which Legutko understands here as very similar to communism) is equally understood as a comprehensive political project which uses law and human rights to politicise society and subject the entire collective to liberal norms. After communism, liberalism emerged as a ‘new wave of a new ideology’.Footnote 44 This led to a rapid displacement of old ideas by the new liberal ideology or the ‘newest tides of modernity’.Footnote 45 Liberalism – the project of a constellation of liberal, left-leaning, and pro-EU social forces – endorses a vigorous programme of ‘political correctness’ that aims for the emancipation of society from all manner of exclusion and repression. Legutko claims, however, that this causes it to evolve into a project with a totalitarian drive or a form of ‘dictatorship’ which obliges citizens to ‘participate in the great collective enterprise, where everyone cooperates with everyone else at all levels and under all circumstances’.Footnote 46 Liberalism leads to the politicisation of society or a drive to ‘organize the entire fabric of society, communities became a natural object of, first, critique, and then, open attack, because they were seen as power structures of an alien nonliberal and nondemocratic nature’.Footnote 47 Law and human rights are utilised by liberals to effectively promote this programme and, by means of the expansion of rights (women’s rights, cultural rights endorsing multiculturalism), all of society becomes ‘formatted’ according to liberal ideas of freedom and tolerance. As I argue below, this politicisation of society by means of the expansion of human rights can be referred to as ‘legal fundamentalism’. As argued by Legutko:
It is the state that should incessantly work to impose and improve cooperation policies by removing all real and potential barriers, creating a favorable legal environment, and reshaping public space and education in such a way that the people’s minds internalize the rules of politically correct thinking.
Such undertaking carries a high price. When the state takes over responsibility for the rules of cooperation and their enforcement on all layers of society, there will be no limits to its interference in people’s lives. The laws it enacts must of necessity be increasingly more detailed and intrusive because what threatens those rules and has to be curtailed is believed to be hidden deeply in social practices and human consciousness. The slippery-slope argument, so often used by liberals, is particularly pertinent here. The logic of liberalism is that whatever seems to be the most obviously nonpolitical, sooner or later will become political. The logic of democracy – with its notions of participation, inclusion, and representation – only strengthened this tendency.Footnote 48
Let us now turn from theoretically informed arguments and explore how some of the theoretical tenets elaborated above are manifested in the discourse and practice of the ‘populist counter-constitutional revolution’.
Populist counter-constitutionalism
The conservative, populist forces now so prominent in Hungary and Poland are reacting directly to the liberal and legal-constitutional project of the 1990s. Populist critique and legal practice are a reaction to what is seen as the dual domination of liberal and post-communist forcesFootnote 49 in the post-1989 political landscape. One significant dimension of the manifestation of populism is its conservative, right-wing nature. In Poland, for instance, the media often refer to PiS’ political project as a ‘conservative revolution’, ‘affirmative conservatism’, or the ‘new Right’, thus echoing labels used by German conservative forces in the 1920s while stressing that liberalism is the main enemy.Footnote 50
The somehow difficult to refute populist argument is that the post-1989 transformation has seen an unbalanced emphasis on formalistic liberal institutions, rights, and norms, and an aggressive institutionalisation of a liberal understanding of law in such institutions as the constitutional courts, as well as an embedding of the national order in wider European and international legal regimes. Conservative populists see the liberal predominance as problematic yet ingrained in the institutions and constitutions created in the transformation processes. Counter-constitutional reform is hence an essential ingredient of the populist political programmes. In Kim Scheppele’s words, ‘[c]ounter-constitutions are alternative visions of constitutional order, grounded in different understandings of what a constitution is and should be, understandings that reject the taken-for-granted constitutional vision already in place’.Footnote 51 As Scheppele argues, in the case of Hungary, ‘[d]iscontent with politics in Hungary translated into discontent with a constitution that seemed to legitimate this dreadful state of affairs [of a malfunctioning democracy and economy]’,Footnote 52 and hence alternative representations of a constitutional order, often referring back to notions of a ‘historical constitution’,Footnote 53 have steadily gained ground in the post-1989 period in Hungary. In Poland, too, in a not dissimilar manner, competing visions of constitutionalism, including a conservative understanding of the constitutional order, have been a continuous presence in the post-1989 era.Footnote 54
To understand these constitutional counter-revolutions organised by Fidesz in Hungary and PiS in Poland, it is important to have a firm grasp of the legal and constitutional attitudes of the populists in power and the way such attitudes translate into political practice. Only then can we understand the form and shape that the emergence of illiberal democracy has taken and the telos of the populist constitutional projects in East-Central Europe.Footnote 55
The general idea is that populism and (the rule of) law are antipodes. I would argue, however, following Jan-Werner Müller in his recent What is Populism? that this is too simplistic and unhelpful. Rather than dismissing and dismantling it outright, populists use law for their own purposes in the form of counter-constitutional projects. Populists justify their legal actions by taking issue with legalisticFootnote 56 or liberal understandings of law and constitutionalism while claiming to provide an alternative.
Right-wing populism displays a critical attitude towards the status quo, a form of legal scepticism aimed against liberalism and legal-constitutional structures which I have defined as legal resentment.Footnote 57 Resentment appeals to anti-elitism as well as anti-pluralism and equates the political opposition with the enemy of the people.Footnote 58 It displays the post-1989 political project of the liberal opposition – a robust rule of law, independent institutions, and a pluralistic (civil) society) – as detrimental to the will of the ‘real’ people or nation and as corroding community norms and traditions. And thus, in constitutional terms, populists claim that legal constitutionalism leads to an excess of power in judicial institutions; strong constitutional courts and an emphasis on (international) legal norms undermine ‘authentic’ popular rule in the name of the nation and national values. The argument made by Legutko and others is that ‘power has increasingly drained from elected bodies to courts, transnational organizations, domestic bureaucracies, and other nonaccountable institutions with wide regulatory powers’.Footnote 59 Populists decry this depoliticisation or loss of political power; they perceive an unjustified weakening of the executive and parliament in the post-1989 liberal design of constitutional democracy accompanied by unjustified political ‘meddling’ by unaccountable constitutional courts. The populist constitutional ‘crusade’ inspired by resentment and its unshakeable mission of ‘good change’ in the name of the true people is meant to undo the injustices resulting from liberal-democratic politics.
Below, I will link the anti-liberal, conservative mindset to the populist counter-constitutional projects in Hungary and Poland, emphasising the critique of the neutrality of law and the distinctive dimensions of what I refer to as ‘legal fundamentalism’, i.e. the claim that liberal understandings of the rule of law and human rights have penetrated politics and society to an excessive degree.
The populist critique of the rule of law
The populist critique of the rule of law and liberal constitutionalism engages with certain central dimensions of the idea of liberal-constitutional democracy, i.e., the neutrality of law, the emphasis on the rule of law understood as the idea that all forms of exercise of political power are subject to clearly established legal norms and procedures, the promotion of the protection of minorities and avoidance of exclusion by means of human rights, and the delegation of the guardianship of the legal-judicial edifice to specialised courts.
The neutrality of the law
The populist critique of liberalism, or what I refer to as legal resentment, departs from a wholesale critique of the liberal understanding of the rule of law and the liberal emphasis on the apolitical, neutral nature of law. Populists deny the idea of a strong separation between law, on the one hand and politics and morality on the other, that liberalism presupposes. They counter the idea of the constitution as a higher law by promoting a political notion of the constitution. The populist understanding of law refutes the notion that it has a superior or aprioristic nature that allows it to take precedence over politics or democracy, and emphasises the always already political nature of law. Populists tend to view the idea of a neutral, universalist, individualist, and secularist understanding of law as bordering on ‘nihilism’ and as denying the ‘essence of humanity and the human being’.Footnote 60
As we saw earlier, Legutko, political philosopher and Member of European Parliament for PiS, argued in a piece entitled ‘What is Wrong with Liberalism?’ that liberals take on the role of ‘architectonic organizer of society’. Liberals ‘always want to dominate by performing the roles of the guardians of the whole of the social system and the judges of the procedural rules within the system’.Footnote 61 Their neutrality ‘is impossible to maintain; one cannot be an organiser of everything while at the same time refraining from imposing substantively in specific cases’.Footnote 62 Legutko, in line with widely-held populist opinion, sees the emergence of liberalism in post-1989 Central and Eastern Europe with great scepticism and suspicion.
Populist leaders in both Hungary and Poland endorse forms of what they have coined ‘illiberal democracies’ based on collectivist, traditional, and Christian values. For populists, the law is never neutral or universal. Instead, the law is inseparable from extra-legal sources such as religious values, the societal community, and sovereign power. As such, for populists, the law always needs to be an expression of the ‘national interest’ and collective, traditional and religious values which express the nation’s uniqueness. Kornel Morawiecki, the interim speaker of the Sejm, the Polish lower house, and father of the current prime minister, has explicated this as follows: ‘The good of the nation is above the law. If the law conflicts with that good, then we’re not allowed to treat it as something that we can’t break’.Footnote 63 And in the words of president Andrzej Duda (on the far-reaching reform of the Polish Supreme Court in June 2017, which strongly undermined its legal independence),
The reform of the [Supreme] Court contributes to create a really good future for our Fatherland in the form of a lawful and strong state, a state which respects and protects the ordinary man.Footnote 64
If the law, as populists claim, is always an expression of politics – and hence the rule of law is a myth – the liberal claim of the neutrality of law becomes an ideological mystification. This is what PiS claims in its ‘vulgar’ political attacks on Tribunal judges and international institutions. Early on in the crisis, PiS questioned the impartiality of the judges of the Constitutional Tribunal, thus justifying its own constitutional project which sought to radically ‘restructure’ the existing constitutional state. The Tribunal, still headed at the time by Chief Justice Andrzej Rzepliński, was portrayed as having close links to, or as having closely collaborated with, the former government of the liberal Civic Platform (PO) (now in the opposition).Footnote 65 The current ruling party has expressed equally sceptical remarks on the neutrality of the Supreme Court, which has indeed been subjected to far-reaching judicial reform since the summer of 2017. In the words of Kaczyński:
In our view, the courts are a bastion of post-communism in Poland. At their head is the Supreme Court, which has gained great renown for protecting people who have served the old system, but which has also issued many problematic judgments. At the same time, it is a breeding ground for leftist thinking and subjected to foreign forces.Footnote 66
Foreign actors and institutions are not thought of as part of a positive, universalist and democratic, global programme of the rule of law and human rights but, to the contrary, are displayed as problematic allies of left-liberal and post-communist (former communist) forces which seek to undermine national unity and sovereignty. For conservative populists, both the left-liberal dissidents and the former communists turned social democrats are – not least due to compromises between them – responsible for a transformation process in which external actors have been allowed to play an excessive role. International judicial institutions, not least of which is the advisory body known as the European Commission for Democracy Through Law, or Venice Commission of the Council of Europe, have been criticised in this regard for their allegedly biased and distorted opinions. In recent years, for instance, the Venice Commission was frequently asked to provide external and ‘neutral’ expert advice on, inter alia, domestic processes of constitutional amendment and reform in Central and European countries, including Poland. The reaction by PiS to the Venice Commission’s Opinions has been, in comparison, unusually harsh, in particular in its scepticism regarding the Commission’s neutrality. In a response by PiS to the draft Opinion on the Act on the Constitutional Tribunal, produced by the Venice Commission in July 2016, a range of allegations was made with regard to the partisan nature of the Commission and its relations with opposition members and former judges allegedly close to the former government. Similar allegations had been already made in an earlier report written by Polish constitutionalists at the request of the PiS government in March 2016.Footnote 67 This report, too, extensively denounced what it saw as intimate ties between the former President of the Tribunal and members of the Venice Commission delegation.Footnote 68 By ‘unmasking’ the political entanglements of judges, the populists attempt to portray the liberal neutrality of law and the international institutions that endorse this liberal vision, as a myth.
PiS criticises judicial actors for defending particular rather than general interests. But there is clearly also a deeper claim. This is the outright rejection of the idea of a neutral and higher law as a depoliticised framework for politics as well as the denunciation of liberalism and individual human rights as part of an ideological project which undermines national traditions, values, and unity (the last of these is discussed later in the paper).
Jarosław Kaczyński, the éminence grise of PiS, once claimed, regarding a judgment of the Constitutional Tribunal, that law is always an expression of a ‘specific political direction’.Footnote 69 The populists denounce the mere possibility of a neutral, impartial rule of law as pure fiction. Hence, in order to make law ‘transparent’, populists need to ensure that it explicitly reflects the will of the national majority – and not the implicit or hidden will of some internal (liberal) minority or external faction of foreign actors. Perhaps the most extensive exposition of the populist rule-of-law argument can be found in the aforementioned expert opinion written by a team of Polish constitutionalists in reply to the Opinion of the Venice Commission of March 2016. The experts identify two different understandings of the ‘concept of the state’, with either an emphasis on the ‘political community’ or on the ‘significance of the legal order’. They also make a distinction between two political languages, one of ‘participatory democracy’ and one of ‘constitutional democracy’. The first view emphasises the ‘so-called political nation’ and its sovereignty (the Polish governmental position), whereas the other recognises the ‘legal order as a domain which is not only superior (primary) in relation to the political community and binding for it and all its public bodies, but also a domain which legitimises the functioning of this community and its public bodies’ (allegedly, the position of the Venice Commission). In the latter case, the law, in particular, the constitution (rather than the political community itself), is sovereign, and the state is transformed into an ‘anonymous entity’. In contrast, according to the experts, the Polish Constitution does not reflect the liberal model of the sovereignty of the law. The constitution is not a ‘self-contained source of legitimacy’, but rather identifies the ‘political nation’ as sovereign. Indeed, so the experts claim, the Polish Constitution of 1997 does not even mention the notions of ‘liberal democracy’, ‘representative democracy’ or ‘constitutional democracy’, but rather stresses popular sovereignty.Footnote 70 They make the somewhat outlandish claim that the Polish Constitution endorses ‘participatory democracy’.
The populists thus problematise the liberal, legalistic idea of the rule of law and claim that it is alien to the East-Central European region. The liberal idea of neutrality and the procedural nature of law is equated with a Western or Western European socio-cultural and legal model being imposed on East-Central Europe although it is not befitting of the region. For Kaczyński, there is an incompatibility between Polish culture and the Western model.Footnote 71 The alternative, ‘authentic’ model grounded in the sovereign nation is what comes naturally to the region. This is also the view promoted by Viktor Orbán, the leader of the Hungarian Fidesz party, in what he calls ‘illiberal democracy’:
[T]he new State that we are constructing in Hungary is an illiberal state, a non-liberal state. It does not deny foundational values of liberalism, as freedom, etc. But it does not make this ideology a central element of state organization, but applies a specific, national, particular approach in its stead. (emphasis added)Footnote 72
Legal fundamentalism
There is a further critique of the liberal understanding of law similar to but not entirely overlapping with the critique of law’s neutrality and universality, which criticises the politicisation and juridification of society as such. This critique of ‘legal fundamentalism’ takes on the excessive expansion of law into all domains of society.Footnote 73 One could alternatively refer to the notion of the ‘legal colonization of the lifeworld’, indicating a ‘flood’ of legal norms into wider society.Footnote 74 Contemporary right-wing, populist engagement with law in East-Central Europe includes a reaction to what is portrayed as legal fundamentalism or an excessive juridification of society. Populism is to an important extent driven by the opposite idea, i.e. a significant reduction in the presence and status of public and constitutional law throughout society and prioritisation of informal local norms, traditions and conventions, rather than formal legal norms.
In Poland, some affinity with this the idea of legal fundamentalism might be found in the expression of ‘impossybilizm prawny’ or legal impossibilism. This notion, introduced by PiS politicians, refers to the constraints faced by the executive in bringing about extensive reform, and rejects excessive legal formalism. Legal impossibilism is a ‘synonym of the embarrassing and irrational legal formalism, which allegedly prevents the adoption of certain and socially desirable regulations and constitutes a brake on progress’. In contrast, the counter-constitutional revolution promotes the ‘legislative omnipotence’ of the legislator.Footnote 75
A primary facet of the populist critique on ‘legal fundamentalism’ is the observation that legal constraints obstruct governing in the name of the people. Kaczyński, claiming to be inspired by his mentor Stanislaw Ehrlich during communist times, has frequently referred to ‘legalism’ as a great obstacle to change in Poland. In a 2010 speech entitled ‘Is Poland a state of the rule of law?’,Footnote 76 Kaczyński argued that the 1997 Constitution jumped the gun when it stipulated that ‘The Republic of Poland is a democratic state with the rule of law’ (in Article 2) since old, communist structures still remained in place. Furthermore, the Constitution created a legal system with distinctive rules of amendment that made a change towards a different political system more difficult. In addition, Kaczyński argued, the interpretation of constitutional norms by judicial institutions entailed the protection of acquired rights, de facto protecting members of the old system.Footnote 77 In his 2016 autobiography, Kaczyński identified the actual transition starting in 1989 as the root of the problem:
After the fall of communism, should we limit ourselves, firstly, to the return of democratic laws and civic freedoms along with the building of fundamental democratic institutions, such as the holding of elections; and secondly, to the reconstruction of fundamental economic categories, including money as the measure of value and the market with its institutions? Both of these operations have already been conducted in a very imperfect manner. Or is it also necessary to build a new state apparatus together with a new legitimization, and, even more difficult, to create a new social hierarchy? One must strongly emphasize that these operations, which have basically been neglected, make those that have already been completed less real. For without them there is simply no chance of a properly functioning democracy and a properly functioning market.Footnote 78
For Kaczyński – seemingly echoing views of Ehrlich – a key dimension of the impossibility of deep social and political change is the existing, complex of rules and balance of power that make up the liberal-democratic state and which obstructs decisive majority rule and the promotion of a ‘citizen-friendly state’. Legal impossibilism is, however, not an observation that can be made only with regard to the post-1989 liberal-democratic state; it has earlier origins in the observations on the creeping process of juridification under communism as shown, not least, by the creation of a Constitutional Tribunal in the early 1980s and the increasing attention for and expansion of human rights:
There are no conditions in Poland for a state of law and a law-governed state to exist in Poland. Let us now reflect on the consequences brought about by the application of rules derived from the concept of ‘state of law’ in our country. In Poland, during the last twenty years, some elements of a state of law have been built. These elements, however, lead to some rather specific consequences, which can be connected to the consequences of the absence of law. By the 1980s the process of ‘juridification’ of the communist system had already begun. Many things were regulated which had not been regulated before. Certain institutions were established, including the Constitutional Tribunal, the ombudsman, the administrative courts. This process was very far-reaching. A situation came about, in which no decision could be taken without a legal basis. This limited the rational freedom of decision-making by the persons who hold various public offices.Footnote 79
Legutko’s assumption of elective affinity between liberalism and communism becomes relevant here. It is, according to the populists, the internal drive towards political and societal control common to both ideologies that renders them suspect. Formalistic law becomes, in their view, a key mechanism to extend the control of the minority and its distinctive liberal ideology.Footnote 80
A second dimension of the critique of the liberal model is that judicial institutions engage in illegitimate lawmaking. In particular, the Constitutional Tribunal is accused of unduly creating law: ‘By means of interpretative judgments, the Tribunal creates constantly new rules or modifies the content of existing rules’.Footnote 81 As argued by Mazur, PiS has put the ‘Constitutional Tribunal on the bench of the accused’, as it is identified as a key player in the construction of the so-called Third Republic, the democratic political system that emerged from 1989 onwards.Footnote 82 According to PiS, the Tribunal took on the role of ‘co-legislator’, thereby importantly shaping the political system. The Tribunal (in its set-up up until 2016) is accused of promoting one-sided, ideological views, setting limits on the state that were not merely legal in nature, but also entered the terrain of axiological and ideological matters.Footnote 83 A key thrust of the judicial reforms undertaken by PiS has been to bring the Constitutional Tribunal into line, and thus make it a ‘government enabler’.Footnote 84
A third dimension of the critique of legal fundamentalism is its excessive penetration of liberal norms and rights into society. Liberal legal norms and human rights, in particular, are viewed with suspicion by the populist project which is based on the ‘rejection of liberal emancipatory politics – both in the narrow policy sense and as a symbol of a progressive vision of the future’.Footnote 85 The thrust in populist, conservative projects is against the wide expansion of individual human rights protections, understood as vehicles for the promotion of equality in, for instance, gender relations, sexual minority rights, and reproductive rights.Footnote 86 According to Kaczyński, the liberal worldview separates liberal elites from wider society as the former is not rooted in the latter.Footnote 87 Liberalism and its legal language are understood, furthermore, as destructive to the ‘natural’ communities of the nation and its most important component, the family.
A final dimension of the critique on legal fundamentalism is hence the observation that abstract law undermines the community mores and traditions. In the words of Lech Morawski, one of the PiS-appointed Constitutional Tribunal judges,
a term ‘liberal state’ refers to a strictly (pure or orthodox) liberal state [of] which [the] political system is based on the individualistic concept of rights as a trump card against community (R. Dworkin) and the concept of economy entirely based on the Weberian criteria of economic rationality such as profit and economic efficiency (cf “famous” L. Balcerowicz’s reforms).Footnote 88
If the law is considered superior to the political community and ‘legitimises the functioning of this community and its public bodies’, it (detrimentally) prioritises abstract law over (the traditions and mores of) a political nation.Footnote 89 The liberal idea of the rule of law and liberalism’s drive towards promoting equality through human rights are dismissed or at least portrayed as not befitting of the domestic context and traditions of East-Central European societies. Again, in the words of Morawski,
the government and its supporters argue, and rightly so, that the strictly liberal model is incompatible with the Polish tradition and constitutional identity. It should be strongly emphasized that Polish constitutionalism from the very beginning – starting with the Constitution of the 3rd of May 1791 and ending with the current constitution of 1997 – has not been based on strictly liberal values, but on republican ones. As opposed to the parliament and the vast majority of citizens, the supporters of pure liberalism do not want to accept the republican way of interpreting our Constitution.Footnote 90
East-Central European societies have strong collectivist and religious traditions which, according to the populists, have a universal significance in their own right. As Görgy Schöpflin, a member of the European Parliament for the Hungarian Fidesz party, stated a few years ago, the liberal paradigm suffers from ‘universalist pretensions and overweening self-confidence’. According to Schöpflin, Hungary ‘rejects liberal universalism and insists that Christian values are as valid as secular liberal norms’.Footnote 91
If, however, the populists reject the diffusion of liberal, individualist human rights in Polish society, this does not mean that they merely intend to dismantle the human rights regime. In contrast to their own denunciation of rights as forces for the politicisation and juridification of society, populists extensively seek to redefine human rights and utilise them for their own political aims. Populists ‘hijack’ human rights by using them to promote the (traditional) family, pro-life policies and the protection of the nation (e.g. from immigrants).Footnote 92
Concluding remarks
A central dimension of the manifestation of populism-in-government in Hungary and Poland is its conservative anti-liberalism. In theoretical terms, conservative anti-liberalism, in particular, has been explored in this paper in relation to Ryszard Legutko’s views which, even if in some ways on the radical side, are clearly shared by a range of significant and politically active intellectuals in the region. In theoretical, ideational terms, liberalism is criticised for its lack of weight and moral substance, lack of authenticity and distance from social communities, and its ultimately ideological nature. Such arguments are clearly part of a wider conservative worldview which prioritises the ethnonational community, historical traditions, and a homogeneous understanding of ‘the people’. While populist political projects are frequently – and with good reason – portrayed as destructive, instrumentalist, opportunist, and abusive of political power, it ought to be equally recognised that there is some type of ‘script’ – intended here as a set of ideational justifications linked to institutional objectives – grounded in conservative, nationalist, and religious ideas behind the experiences in Hungary and Poland.
The populist counter-constitutional projects are aimed directly at decades of institutionalisation of liberal, constitutional democracy that unfolded after 1989. The populist projects thus attempt to institutionalise alternative political orders grounded in notions of national and popular sovereignty, political realism, collectivism, the protection of national identity, and welfarist social programmes.Footnote 93 Such political projects have been part and parcel of the post-communist transformation projects.Footnote 94
The populist assault on liberal-constitutional democracy and the rule of law in East-Central Europe is not going to disappear any time soon. In the case of Poland, ongoing populist activity on a variety of fronts – including the ongoing saga of the Act on the Supreme Court and the conflict with the European Commission in the context of the rule of law framework – hints at the ambition (in emulation of HungaryFootnote 95) to further undo the achievements of the post-1989 legal-constitutional project and to build an alternative, counter-constitutional order in its stead. While there is abundant literature on the East-Central European threat to the rule of law and constitutional democracy from a formal-legal and institutional perspective, the highly pertinent socio-cultural and symbolic dimensions of the democratic and constitutional transformationsFootnote 96 still need further investigation. My concern in this paper has been, in particular, the populist critique of liberal or legal constitutionalism as the dominant model for the institutionalisation of post-communist democracy. My argument has been that by dissecting the critique of the liberal rule of law and constitutionalism made by the populist counter-constitutionalists and by weighing the merits (if any) of such critique, an important contribution can be made to engage in a more in-depth and historical understanding of counter-currents against liberalism and ultimately in rethinking/re-imagining constitutional democracy in the contemporary European context. Such engagement with the populist critique is urgent, and may in some ways help to provide significant insight into the failings of the liberal or legal-constitutional model often overlooked by self-indulgent promoters of liberalism and the rule of law.
As a final note, it appears to me that neither a too narrow espousal of a formalistic-legalistic notion of constitutional democracy nor an embrace of the hyper-majoritarian and exclusionary idea of populist constitutional democracy ultimately offer a promising and robust way out of the current predicament,Footnote 97 the former because it neglects certain shortcomings (e.g. sociological legitimacy, civic participation, societal engagement)Footnote 98 and the latter because of its clear authoritarian tendencies and roughshod denial of rights to various minorities while dramatically failing to offer a convincing, more inclusionary and less estranging idea of constitutionalism.
