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ABSTRACT
The birth and spread of the term ‘populist constitutionalism’ shows that one of the distinctive features of modern populism is that it has specific constitutional ambitions insofar as it seeks to achieve its political goals through constitutional means. The constitutional ambitions of populist politicians, which are considered by many scholars as a feature of modern populism, often make it inevitable for courts to respond, in the course of constitutional review, to challenges to traditional constitutional values and institutions. Courts can respond to these claims in different ways. For example, they can engage in an activist stance, resisting the attempts that endanger the established constitutional order, they can defer to the changing constitutional policy of the political branches, or, possibly, they can try to keep their distance from political struggles. The study, based on the results of our comparative international research, examines how populism influences the methods of interpretation in the jurisprudence of constitutional courts and other relevant high courts,whether they have developed new interpretative instruments, or have used the classical ways of constitutional interpretation when facing populist aspirations. The article contributes to the present-day scholarly discourse on the effects of populism on constitutional justice in Europe.
Acknowledgments
We thank János Mécs, junior research fellow, for his assistance.
Disclosure statement
No potential conflict of interest was reported by the author(s).
Notes
* This article is based on international research conducted in the framework of the project “Democratic Efficacy and the Varieties of Populism in Europe” (DEMOS) funded by the European Union’s Horizon 2020 research and innovation programme under grant agreement No. 822590. The findings of our research were published in Fruzsina Gárdos-Orosz and Zoltán Szente (eds.), Populist Challenges to Constitutional Interpretation in Europe and Beyond, Routledge, 2021. We thank János Mécs junior research fellow for his assistance.
1 See for example: Paul Blokker, ‘Populism as a Constitutional Project’, International Journal of Constitutional Law 17, no. 2 (2019): 535-553. It should be noted, however, that some opinions, as far as authoritarian populism is concerned, do not attach particular importance to formal rules because they believe that these regimes use primarily informal means. See. Steven Levitsky and Lucan A. Way, Competitive Authoritarianism: Hybrid Regimes After the Cold War (Cambridge: Cambridge University Press 2010), 78−81.
2 Some argue that constitutionalism also makes sense without a liberal character. See Mark Tushnet, ‘The Possibility of Illiberal Constitutionalism?’, Florida Law Review 69, (2017): 1367−1384; Tom Ginsburg and Aziz Z. Huq, How to Save a Constitutional Democracy (Chicago: The University of Chicago Press, 2018). Under some views populist constitutionalism can even be understood as a coherent political theory. See Oran Doyle, ‘Populist Constitutionalism and Constituent Power’, German Law Journal 20, no.2-3. (2019): 164. Another strand of the literature claims that illiberal constitutionalism is an oxymoron. See for example Gábor Attila Tóth, ‘Constitutional Markers of Authoritarianism’, Hague Journal on the Rule of Law 11, (2019): 37−61; Gábor Halmai, ‘Populism, Authoritarianism and Constitutionalism’ German Law Journal 20, special issue no.3 (2019): 296–313.
3 Pablo Castillo-Ortiz, ‘The Illiberal Abuse of Constitutional Courts in Europe’, European Constitutional Law Review 15, no.1. (2019): 70.
4 Formal modalities of constitutional interpretation are primarily aimed at standardising the process of interpretation, and constitutional changes in this way can be achieved mainly by alternating different methods; in this form of interpretation the same results can be reached only by reinterpreting the content of substantive constitutional values. Fruzsina Gárdos-Orosz and Zoltán Szente, ‘The art of constitutional interpretation’, in Populist Challenges to Constitutional Interpretation in Europe and Beyond, eds. Fruzsina Gárdos-Orosz and Zoltán Szente (New York: Routledge, 2021), 40.
5 Oliver Lepsius, ‘The Problem of Perceptions of National Socialist Law or: Was there a Constitutional Theory of National Socialism?’ in Darker Legacies of Law in Europe. The Shadow of National Socialism and Fascism over Europe and its Legal Traditions, eds., Christian Joerges and Navraj Singh Ghaleigh, (Oxford: Hart Publishing, 2003) 38−39.
6 Wojciech Brzozowski, ‘Whatever works: constitutional interpretation in Poland in times of populism’, in Populist Challenges to Constitutional Interpretation in Europe and Beyond, eds. Fruzsina Gárdos-Orosz and Zoltán Szente (New York: Routledge, 2021), 176.
7 Cas Mudde and Rovira Kaltwasser, Populism: A Very Short Introduction, 2nd ed. (Oxford: Oxford University Press, 2017), 5.
8 Gárdos-Orosz and Szente, ‘The art of constitutional interpretation’, 37-40.
9 On the major explanatory factors of the differences in constitutional interpretation in the various constitutional polities, see Jeffrey Goldsworthy, ‘Constitutional Interpretation’ in The Oxford Handbook of Comparative Constitutional Law, eds., Michael Rosenfeld and András Sajó (Oxford: Oxford University Press, 2013), 706–717.
10 Donald P. Kommers, ‘Germany: Balancing Rights and Duties’, in Interpreting Constitutions: A Comparative Study, ed., Jeffrey Goldsworthy (Oxford: Oxford University Press 2007), 323.
11 See, for example, this doctrine in Indian constitutional law. Sudhir Krishnaswamy, Democracy and Constitutionalism in India: a Study of the Basic Structure Doctrine (Oxford: Oxford University Press 2009).
12 For an overview of the concept of populist constitutionalism, see: Zoltán Szente, Populism and populist constitutionalism’, in Populist Challenges to Constitutional Interpretation in Europe and Beyond, eds. Fruzsina Gárdos-Orosz and Zoltán Szente (New York: Routledge, 2021), 3-28. and Mark Tushnet and Bojan Bugarič, Power to the People. Constitutionalism in the age of Populism. (Oxford: Oxford University Press, 2022.) 56‒77.
13 Oran Doyle, ‘Populist constitutionalism and constituent power’, 165.
14 David Landau, ‘Abusive Constitutionalism’, UC Davis Law Review 47, no. 189 (2013): 541.
15 Mark Tushnet, ‘The Possibility of Illiberal Constitutionalism?’, Florida Law Review 69, (2017): 1367, 1368, 1371.
16 Théo Fournier, ‘From rhetoric to action, a constitutional analysis of populism’, German Law Journal 20, special issue 3, (2019): 362-381.
17 Manuel Anselmi, Populism: An Introduction (New York: Routledge, 2018), 87.
18 Neil Walker, ‘Populism and constitutional tension’, International Journal of Constitutional Law 17, no.2. (2019): 529.
19 Valerio Fabbrizi, ‘Constitutional Democracy in the Age of Populisms: A Commentary to Mark Tushnet’s Populist Constitutional Law’, Res Publica 26, no.3. (2019): 433, 438.; Bojan Bugarič, ‘Central Europe’s descent into autocracy: A constitutional analysis of authoritarian populism’, International Journal of Constitutional Law 17, no.2. (2019): 599.; Kolja Möller, ‘Populismus und Verfassung. Der autoritäre Populismus als Herausforderung für die liberale Demokratie‘, Zeitschrift Für Politik 66, no.4 (2019): 433‒435; Paul Blokker, ‘Populist Counter-Constitutionalism, Conservatism, and Legal Fundamentalism‘, European Constitutional Law Review 15, no.3. (2019): 536‒537.
20 Bojan Bugaric and Alenka Kuhelj, ‘Varieties of Populism in Europe: Is the Rule of Law in Danger?’, Hague Journal on the Rule of Law 10, no.1. (2018): 27, 69.
21 Jan-Werner Müller, ‘Populism and constitutionalism’, in The Oxford Handbook of Populism, eds. Cristóbal Rovira Kaltwasser and others, (Oxford: Oxford University Press, 2017); Bugaric and Kuhelj, ‘Varieties of populism in Europe’, 20, 26.
22 Landau, ‘Abusive Constitutionalism’ 533.; Kim Lane Scheppele, ‘Autocratic Legalism’, The University of Chicago Law Review 85, no.2. (2018) 562.
23 Bugaric and Kuhelj, ‘Varieties of populism in Europe’, 27; Landau, ‘Abusive Constitutionalism’, 539; Takis S. Pappas, ‘Populists in Power’, Journal of Democracy 30, no. 2. (2019): 70, 71‒72.
24 Blokker, ‘Populist Counter-Constitutionalism’, 545; Landau,‘Abusive Constitutionalism’ 532.
25 Halmai, ‘Populism, authoritarianism and constitutionalism’, 310; Cesare Pinelli, ‘The Rise of Populism and the Malaise of Democracy’, in, Critical Reflections on Constitutional Democracy in the European Union eds., Sacha Garben, Inge Govaere and Paul Nemitz, (Oxford: Hart Publishing, 2019), 42.
26 Kim Lane Scheppele, ‘The Rule of Law and the Frankenstate: Why Governance Checklists Do Not Work’, Governance 26, no. 4. (2016): 560; Rosalind Dixon and David Landau, ‘1989-2019: From democratic to abusive constitutional borrowing’, International Journal of Constitutional Law 17, no.2. (2019):490.
27 Pappas, ‘Populists in Power’, 72, 74.
28 Pappas, ‘Populists in Power’, 73; Landau, ‘Abusive Constitutionalism’, 200.
29 See, for example, Gábor Attila Tóth, ‘Constitutional Markers of Authoritarianism’; Gábor Halmai, ‘Making of ‘Illiberal Constitutionalism’ With or Without a New Constitution: The Case of Hungary and Poland’, in Comparative Constitution Making, eds., David Landau and Hanna Lerner (Northampton: Edward Elgar Publishing, 2019) 302-303.
30 Konrad Lachmayer, ‘Formalism and judicial self-restraint as tools against populism? – Considerations regarding recent developments of the Austrian Constitutional Court’, in Populist Challenges to Constitutional Interpretation in Europe and Beyond, eds. Fruzsina Gárdos-Orosz and Zoltán Szente (New York: Routledge, 2021), 88.
31 Ibid. 90-91.
32 Gianmaro Demuro and Riccardo Montaldo: ‘The populist reforms in Italy and the instrument of the constitutionally conforming interpretation’, in Populist Challenges to Constitutional Interpretation in Europe and Beyond, eds. Fruzsina Gárdos-Orosz and Zoltán Szente (New York: Routledge, 2021).
33 Law Decree no. 113 of 2018; Law Decree no. 53 of 2019.
34 Demuro and Montaldo, ‘The Populist Reforms in Italy’, 166.
35 Judgment No. 194 of 2019 of the Italian Constitutional Court.
36 Demuro and Montaldo, ‘The Populist Reforms in Italy’,170.
37 Alexandra Mercescu, ‘Non sequiturs in constitutional adjudication. Populism or epistemic deficit?’, in Populist Challenges to Constitutional Interpretation in Europe and Beyond, eds. Fruzsina Gárdos-Orosz and Zoltán Szente (New York: Routledge, 2021) 208.
38 Ibid. 206.
39 Ibid. 99-105.
40 Zdeněk Kühn, ‘The Czech Constitutional Court in times of populism ‒ From judicial activism to judicial self-restraint’, in Populist Challenges to Constitutional Interpretation in Europe and Beyond, eds. Fruzsina Gárdos-Orosz and Zoltán Szente (New York: Routledge, 2021) 102.
41 Francisco Balaguer Callejón, ‘Constitutional interpretation and populism in contemporary Spain’, in Populist Challenges to Constitutional Interpretation in Europe and Beyond, eds. Fruzsina Gárdos-Orosz and Zoltán Szente (New York: Routledge, 2021) 222.
42 Ibid. 228-229.
43 See John McEldowney, ‘Populism, UK sovereignty, the rule of law and Brexit’, in Populist Challenges to Constitutional Interpretation in Europe and Beyond, eds. Fruzsina Gárdos-Orosz and Zoltán Szente (New York: Routledge, 2021).
44 R (Miller) v Secretary of State for Exiting the European Union [2016] EWHC 2768 (Admin) and [2017] UKSC 5.
45 R (Miller) v The Prime Minister and others [2019] UKSC 41.
46 McEldowney, ‘Populism, UK sovereignty’, 233.
47 Ibid. 247-249.
48 Apostolos Vlachogiannis, ‘Constitutional identity as a populist notion? The Council of State and the forging of the Greek constitutional identity through the crisis’, in Populist Challenges to Constitutional Interpretation in Europe and Beyond, eds. Fruzsina Gárdos-Orosz and Zoltán Szente (New York: Routledge, 2021), 135.
49 See Fruzsina Gárdos-Orosz, ‘Constitutional interpretation under the new Fundamental Law of Hungary.’ in Populist Challenges to Constitutional Interpretation in Europe and Beyond, eds. Fruzsina Gárdos-Orosz and Zoltán Szente (New York: Routledge, 2021), 143-159.
50 Decision no. 22/2016. (XII. 5.) of the Hungarian Constitutional Court.
51 See Articles N (1), R (3) and (4) of the Hungarian Fundamental Law.
52 Brzozowski, ‘Whatever works’,176.
53 Ibid. 184.
54 Ibid. 185.
55 Djordje Gardasevic, ‘Popular initiatives, populism and the Croatian Constitutional Court’, in Populist Challenges to Constitutional Interpretation in Europe and Beyond, eds. Fruzsina Gárdos-Orosz and Zoltán Szente (New York: Routledge, 2021), 112-114.
56 Ibid. 118. The initiative aimed to ‘prescribe that in territories of local self-government, state administration and judicial units, the official use of a national minority language and script could be implemented only if members of a national minority made up at least half of the population in such units’.
57 Ibid. 124.
58 Zoltán Szente and Fruzsina Gárdos-Orosz, eds., New Challenges to Constitutional Adjudication in Europe. A Comparative Perspective. (New York: Routledge, 2018).
59 Anna Gamper, ‘An ‘Instrument of Government’ or ‘Instrument of Courts’? The impact of political systems on constitutional interpretation and the case of populism’, in Populist Challenges to Constitutional Interpretation in Europe and Beyond, eds. Fruzsina Gárdos-Orosz and Zoltán Szente (New York: Routledge, 2021).
60 Ibid. 60.
61 Ibid. 60-61.
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Notes on contributors
Zoltán Szente
Zoltán Szente is a Professor of Law at the National University of Public Service, Department of Constitutional Law and Comparative Public Law and is a Research Professor at the Institute for Legal Studies of the Centre for Social Sciences, Budapest. Since the mid-1990s, he has been a member (since 2013 the Vice-Chairman) of the Group of Independent Experts (for monitoring local and regional democracy), Council of Europe. Professor Szente is a co-founder of the Research Group on Constitutional Interpretation of the International Association of Constitutional Law. He has published widely on Hungarian and comparative constitutional law, constitutional theory, parliamentary law, local government and European constitutional history in Hungarian, English, German, Russian and Croatian.
Fruzsina Gárdos-Orosz
Fruzsina Gárdos-Orosz is director and senior research fellow of the Institute for Legal Studies, Centre for Social Sciences of the Hungarian Academy of Sciences and also associate professor in constitutional law at the ELTE Law School. She worked at the Hungarian Constitutional Court between 2003-2007 and 2010-2014 as law clerk in different positions. She has published extensively on the development of the Hungarian constitutional system, the constitutional complaint procedure and on the competence of the constitutional court in comparative perspective.