This episode explores how populists effectively use constitutions to undermine and abolish constitutionalism. What legalistic tactics are often hiding behind culturalist arguments to subvert the rule of law? And how can law be better used in the service of liberal democracy?
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Shalini Randeria (SR): Welcome to "Democracy in Question," the podcast series that explores challenges democracies are facing around the word today. I'm Shalini Randeria, Rector and President of the Central European University in Vienna, Senior Fellow at the Albert Hirschman Center on Democracy at the Graduate Institute, Geneva.
This is the eighth episode of Season Six of "Democracy in Question," and I'm really pleased to welcome today Martin Krygier, professor of law and social theory at the University of New South Wales, in Sydney, Australia, where he's taught for more than four decades. Since 2011, he has been the co-director of the law faculty's Network for Interdisciplinary Studies of Law and also served as co-director of its European Law Center and the Australia Myanmar Constitutional Democracy Project. A Fellow of the Academy of Social Sciences in Australia, Martin has been awarded the Cavalier's Cross, Order of Merit of the Republic of Poland. He's had a long association with the Central European University where he's also Senior Research Fellow at our Democracy Institute in Budapest.
Martin works at the intersection of legal theory, philosophy, sociology and politics. He's primarily interested in questions of the rule of law and democracy and the challenges that these face today. Among his many books, let me just mention a few, "Philip Selznick: Ideals in the World," "Civil Passions," and "Between Fear and Hope, Hybrid Thoughts on Public Values," as well as a couple of co-edited volumes, "Rethinking the Rule of Law After Communism," and most recently "Anti-Constitutional Populism," which we will focus on today.
This isn't the first time that I am discussing populism, nor I'm afraid, will it be the last on this podcast. But Martin's writings provide us new insights on one of the main conundrums that defenders of liberal democracy face everywhere today. Populists effectively use the constitution, the written document, to undermine constitutionalism. That is the institutional restraints on arbitrary power, to use Sartori's famous distinction. What explains the remarkable success of what I have called soft-authoritarian leaders in subverting the rule of law, using and abusing the tools of law and the constitution. How do they use constitutions to undermine and abolish constitutionalism slowly? Incrementally? The answers to these questions involve, as we will see, trickery, cheating, paradoxes and a whole spectrum of legalistic tactics, often hiding behind culturalist arguments.
We'll focus today on the relatively recent phenomena of anti-constitutional populisms that Martin can help us understand the role of what he calls soft-populism and how the judicialization of politics can feed the repoliticization of the judiciary, the latest instance of which we are witnessing in Israel. I'll also ask Martin to talk about how law could be better used in the service of liberal democracy. Martin, welcome to the podcast, and thanks very much for making the time to join me this morning.
Martin Krygier (MK): Thank you, Shalini. I’m delighted to be here.
SR: The subject of your latest book, "Anti-Constitutional Populism," couldn't be timelier. Populism, of course, has been one of the most frequently invoked categories in political analysis in the last few years, and yet there is considerable variation, even disagreement, we could say, about definitions of populism. So, I think let's begin by clarifying these two terms. So, my question would be why did you choose the category of populism in the overall framework for this edited volume?
MK: First, I should announce the qualification. I'm less interested in having some universal definition which will apply to every regime that we call populism. It is not a natural kind. On the one hand, we give the name, very few so-called populist regimes these days call themselves populists, so, it's we who attribute it. There's no “Populist Manifesto” as there was a Communist Manifesto. It’s not as though we have one movement, what we do see, particularly in a number of regimes which have come to power in Europe, in Poland, Hungary, in Latin America, in the United States, in India and the Philippines, are regimes which bear a number of deep resemblances and, I think it's not unfair to say, if not an inexorable logic, that certainly tendencies which are related to those common features.
And why call them populists? Because they anchor their legitimacy not in religion, not in tradition, but in elections which they have won. That is, they've won several times, in Hungary, they've won since 2010, in Poland since 2015, in the United States, fortunately, Trump did not win, though he didn't believe that. But the anchor of their legitimacy is the claim to represent the people.
They are distinctive in that they distinguish typically, in all these regimes, between the real people, the ones they represent, and others who, in conventional categories, will also be called the people, the members of the country, they vote, and so on. These populists – and I don't want to agonize over whether it's a universal trait of populism, as we call it, or just regimes in power which manifest these characteristics – these populists claim to be representing some selection from the people and the selection is based on some deep alleged authenticity. And the others are distinguished either because they're not authentic, they're not sons of the soil and daughters of the soil, they are suspicious elites who are somehow unanchored from the population because they travel too much, they know too many languages, they have allegiances outside the country, they're not at home when they are at home.
For all these reasons, the regimes claim to be representing some authentic fundamental category. But they don't just represent them, or at least so they say, as a traditional democratic leader says, "I'm your representative, you voted for me, I do the things that I do for you in your name," there's something deeper alleged in these regimes. They claim that they don't just represent, they embody the people.
Hugo Chavez said when he ran for his second election in Venezuela, that the people who re-elect him will be re-electing themselves because he is them. A similar but converse sentiment was by Viktor Orbán, in Hungary, in 2002, when he lost the election and said, " The Homeland cannot be in opposition." So, the leader has a special significance. And the significance is not only that he embodies the people but the leader has the power to make the selection of the real people and distinguish them from the other people in the country. And so, Kaczyński in Poland talks about "worse sorts of Poles." And it's not just somebody saying, "I don't like them." It's Kaczyński, the leader of the movement, saying they're not the real deal.
And again, to finish, because these are among the resemblances, you're not just saying, "Well, these are our opponents, we disagree with them," common to these regimes, and you can see it dramatically in Trump, is that those who are not part of the real people are not just its opponents but its enemies. Fortunately, in most of these countries, in most, the identification of enemies has not been followed by the killing or, generally, the jailing of them by the excommunication.
SR: Let's turn to the second key term that you use, which is anti-constitutionalism. You point to an apparent paradox when you say that populists in power tend to display, and I quote you, "even flaunt close engagement with the law, principles of the rule of law and constitutionalism, and yet they are hostile to the underlying values and principles of constitutionalism and to institutional practices and principles that have been developed to serve those values." So, while profoundly unconstitutional, anti-constitutional actually, one should say, populism can have the appearance of being constitutional. And this trend has spawned a variety of concepts, people call it "abusive constitutionalism" or "stealth authoritarianism," "autocratic legalism." You have a very succinct formulation on this when you say, and I quote you, "Populists of such malicious intent are then at once constitutional in that they pay much attention to constitutional documents and institutions but subversively so, for their engagements take forms and have effects that are relentlessly hostile to the values, practices, and institutional constraints that were taken to be the raisons d'ȇtre of those institutions, principles and practices." Could you start by explaining why this entire trend represents such a formidable threat to liberal democracies?
MK: Sure. First, to untangle some of those terms, when Lenin took power, he said, not apologetically but proudly, that the dictatorship of the proletariat is government by force unrestrained by any laws. This was not an apology; it was a boast. This was necessary, this was appropriate, was the logic of the movement. Not every pre-contemporary regime acted that way. In Nazi Germany, people have talked of a dual state where, for some years, after the ascent to power of Hitler, the legal forms and more than forms had some salience. But what we see is, in many of the contemporary populist regimes, a real concern with apparent legalism and constitutions. And the reason why that combination is so common is because of the distinctive attention to legal forms that these regimes manifest.
Now, we, in our book, use a term "anti-constitutional populism." We want to hold on to the first adjective, "constitutional," because that does distinguish them, from many regimes where the army takes over, a revolutionary group takes over and it doesn't even pretend to take the law seriously. But we want to add to that the notion that these are anti-constitutionalists because the spirit of the engagement with law is fundamentally opposed to what I would need to argue is essential to constitutionalism as it has been conceived at least in liberal democracies and in many of these regimes until the new regimes turned on them.
Why do they do it? In Europe, it's easy to understand, they are playing cat-and-mouse games with the European Union where they have to persuade or at least pretend that they are in keeping with the law of Europe in order that they get the funds. More generally, I think, when regimes claim legitimacy and seek support on the basis of elections, it's important that they not manifest explicitly a kind of trashing of the existing legal and constitutional system. And nevertheless, trashing is what I think is involved.
SR: To home in on this point, one of your co-editors to the volume, Wojciech Sadurski, puts it that these changes that are being put into place are all incremental, they use legalistic tricks, seemingly constitutional tools, but they do it slowly and steadily. Often, as an article which you quote by Tarunabh Khaitan, the article on killing the constitution in India, puts it, "The rule of law is typically brought down by a thousand cuts, many of them small and often unseen," in your own words, "all done with the active assistance of the law replete with poker-faced legal argumentation, typically of a highly formalistic sort." So, one of the contributors to your volume, Lucia Corso, warns against this charade of populism infused with legalism because, as she says, it reduces the constitution to a criminal code in the hands of a prosecutor state. And you have called this yourself to be a veritable parody of constitutionalism, the intent behind such mimetic appropriation is clearly not mockery but it's autocratic abuse. The question for me, however, here is what kinds of preferred tricks do we see that populists and soft authoritarian leaders are using? Why is it that they still need constitutions in their toolkits? Isn't it much more cumbersome to use constitutional tricks than to just grab power without the use of these legal trickeries?
MK: It is more cumbersome. But it presents as many difficulties for the opponents of these budding so far, in some places soft, in other places hard autocrats because it's very hard for people who take laws seriously to know how to deal with it. So, again, if we come back to Europe, to Poland, to Hungary, there is no space for announcing at the same time: we have a right to European Union funds but we take no account of European law. So, it's important in this context to pretend to be playing the game. And these pretenses are often very sophisticated. And if they're cumbersome for the people making the pretense, they're also very difficult for those who seek to oppose them. Because, after all, it is thought by many people that law is a matter of forms, it's a matter of following the rules.
One book by a colleague of mine, called "Abusive Constitutional Borrowing," shows how often, in their defense, the new populists say, "But look, in Liechtenstein, in Luxembourg, somewhere that's how they do it." And for example, I'm in Australia where the government appoints the members of our High Court, which is equivalent, in large part, to the American Supreme Court or the Constitutional Tribunal in Poland, or at least has similar functions. Now, as it happens, ours is a highly, by comparative standards, apolitical court. And so, the Hungarians can say, "All we're doing when we try to destroy the judge's control over appointment is doing what the Australians do." Of course they don't say, "Because Australia," but they do seek comparisons of that sort.
And that's why I think the most difficult thing to understand, and for people who think about law to appreciate, is that what is at stake is not forms, but the ethos and spirit and motivation of the people who are manipulating the forms. I recalled the conclusion of a book by the Marxist historian, E.P. Thompson, called "Whigs and Hunters, The Origin of the Black Act." It's an article about the imposition, in the 18th century, in England, of capital punishment for a number of rather small-scale offenses. He was a Marxist, and most of the book is a traditional Marxist exposé on the harsh and despicable ruling class imposing power on poorer and exploited people.
The last 11 pages, to the shock of his Marxist comrades, are on the rule of law. And he calls the notion of the rule of law "a cultural achievement of universal significance." And I've been pondering, "What could he mean by that?" The notion of the rule of law, that's not a matter of particular forms, he didn't have any trust in the forms of England in the 18th century. "The notion," he said, "the notion that arbitrary power is something that needs to be tamed, that the rule of law means the tempering of power, that is a notion about law, it's not just a form of law." What we find in modern populist regimes is that this is a completely alien notion to the governors. They wanna use the law but not in any way allow themselves to have arbitrary power tempered.
And so, what is missing, what is apparent and what explains the attraction of law is that you can be looking as though you're doing things just the way they've always done but you're doing them with no regard for a fundamental value which inspires a lot of things, including constitutionalism. So, you can be using a weapon which was meant to have as its central function, the, if you like, civilizing of power, channeling of power, tempering and power. You're using it for exactly the opposite purposes.
Sometimes the way you will do that is to pretend, as Orbán has often pretended, to be pedantic about the law, to take the law terribly seriously. Sometimes you will, as you quoted the author who wrote about India, you will be constitutionally shameless because it doesn't matter to you, the law is simply your tool. You're not constrained not because the law, the rules are being dissipated but because you are ignoring, as Trump so notoriously does, all the unwritten conventions, understandings and norms, which alone can support a regime of law, which tempers power rather than simply allows it.
SR: So, Martin, one of the remarks you make is that, for the trained eye, it's easy to see through some of these deceptions and also to recognize legal abuse. And my colleague, András Sajó, who's a friend of yours I think as well, has termed this "ruling by cheating," in his book. And the point is here, no matter how hard the practitioners tried to keep up the semblance of legality, it takes a trained eye to discern this abuse.
And so, of course, the abuse seems to be remarkably effective in general in the societal and political effects it has because most of us don't have a trained legal eye. But what also seems to be another feature of this kind of autocratic legalism is cultural relativism that insists, if you like, in a post-modern fashion, on the incommensurability of locally-specific, culturally over determined traditions of understanding whatever the rule of law is supposed to mean. So, a lot of the rejection of notions of rule of law and constitutionality are also being routinely made in terms of the encroach on national sovereignty from the outside, they are pandering to foreign interests, or they are just a relic of Western imperialism. And my question to you would be what is the best way to counter and refute this kind of a culturalist argument being used by so many authoritarian and also populist rulers?
MK: These are fundamental questions. First though, I think that a trained eye is not enough because a trained eye often leads you to focus on legal rules, on legal institutions, on legal forms. And if you're trained enough, you'll say, "But look, they have all these things. They're respecting this or that." Whereas an untrained eye might say, "But they're screwing us. This is not what it's about." And I think that the untrained eye sometimes sees better. Because we take our views of what the rule of law is, a very now pervasive term, everybody disagrees about it, everybody thinks it's important, nobody knows exactly what it means. And if you identify the rule of law with any particular bunch of institutions, as is the common way to do it, then I think there is something legitimate that can be argued by Hungarian leaders, or Polish, "We don't have to do it that way. We have our own ways of doing it."
And look, not everybody does it that way. Again, we can find a legal system which doesn't have a constitutional court. Or we can find a constitution which doesn't have its court members appointed by the judiciary, as I've mentioned. And these differences, first of all, exist, we have tons of disparities in legal forms. And secondly, and perhaps more fundamentally, the history of rule of law promotion, which has grown like mushrooms since 1989, is not a history of success. Again and again people have wheeled in packages of legal forms to countries which they're supposed to liberate in terms of rule of law.
So, to that extent, I'm actually with the culturalists. If you take the rule of law to be identical to one package of legal forms or institutions or another, the odds are that this won't travel. And it may well be that the Hungarians could have other institutions. But what I insist is this: the rule of law is a solution concept. The rule of law is not like the Mona Lisa, it's not something we can just look at and say, "Oh, gosh, that's beautiful." It's more like plumbing. You don't like plumbing, you don't have an attitude to plumbing, but you certainly don't want what is likely to occur in your home if the plumbing doesn't work. So, the rule of law is an answer to a problem. So, what's the problem? Many generations, actually millennia, have said that a fundamental issue we have is the way that power is exercised and when we see power exercised arbitrarily, many people and many cultures have said, "It would be good to find a way of dealing with that." So, the rule of law is about trying to tame, I use the word "temper" power so it not be arbitrary.
Now, if you start there, then you come to Hungary or Poland and somebody says, "Well, it's different in Hungary and Poland." My question is, "Oh, is it good to have untempered power in Poland or Hungary? Is arbitrary power, for some reason, a good thing in Hungary whereas it’s… the English don't think it's a good thing in England?" I don't think that Orbán has ever said that. He said, "We’re not arbitrary. We have to lead, we have to do this or do that."
So, for me, the question about the rule of law is, "Do the tendencies we are looking at tend to increase the possibility of wielding the power arbitrarily?" I don't think you need a trained legal eye to ask that question. A circle is not square in Hungary, a circle is circle wherever it is. Arbitrary power is arbitrary wherever it is. And we know forms of it. We know there's a good reason to believe that, if power holders are unaccountable, they're likely to act arbitrarily. We know that, if they act in ways we can't predict because they act on the basis of secret understandings or they act in violation of the existing rules, this is a bad thing. If they act as though the people who are affected are not there, it's just like removing a dilapidated house, then those people will be acted against arbitrarily.
These are all ways of acting which we can see again and again in the regimes we're talking about and which their measures seek to make available to them, then I say, "I'm not interested in the forms, I'm interested in whether the achievement is being approached or corrupted, subverted." It seems to me this has been the point of talking about the rule of law. When we talk about the rule of law we're talking about opposition to arbitrary power.
And on that, I think, cultural arguments are impotent. Arbitrary power is bad, simple. And that's why I call it and why I think it's interesting that Thompson called it a cultural achievement of universal significance. You have to have this notion that arbitrary power is unhealthy for the society. You then try to institutionalize it in various ways, and those ways will differ.
SR: Most of the examples that are in the book, but also the ones you've been talking about, are all Eastern and Central-Europe examples of "new democracies." We've seen, however, some pretty anticonstitutionalist populist actors like Trump in the U.S. or even Boris Johnson, for that matter. Obviously, they didn't succeed as well in dismantling institutional ethos of constitutionalism, compared to their peers in Hungary or Poland or Venezuela, for that matter. But if I'm thinking, for example, of a succession of British Home Ministers targeting refugees and those seeking asylum with a barrage of measures, I don't even want to go into the discourses being used about refugees in Britain but just the measures, which clearly contravene humanitarian law, human rights law. And Australia has not distinguished itself on that particular account either. Don't you think we have a larger problem here than just the question of “Was there a failure of institutional transplantation of the rule of law into post-communist countries?”
MK: I think we have huge problems. An earlier guest that you spoke with, Tom Carothers, interestingly argued against attributing the pathological state of American democracy to the world. He argued that in many parts of the world it's not like that, America is special. So, it might be that we have a coincidence of many sorts of problems with pathological results. Probably it's more than that because there's so many similarities between Trump's ambitions and the ambitions of the people we've been talking about. They're so similar. And their antipathies are so similar, the hatred of independent institutions. The motivations are very similar.
I wrote a piece, a few years ago, published in 2019, called "The Challenge of Institutionalization," and I asked a question, which now might seem naive but I don't think it's completely naive, that question was, "Why has it been so easy for Kaczyński and Orbán to do what Trump equally wanted to do, but for him it was much more difficult?" Now, for a while it seemed as that was simply the wrong way of putting the question, and I think it needs a lot more sophistication than I gave it, but now some of the dogs are coming back to bite Trump in a way that it's very hard to see any dogs coming to bite Orbán and Kaczyński. And that has something to do not with the resilience, to some extent, of this notion that the institutions matter, which has still survived the onslaught, to some extent, in America whereas it's not very deeply rooted in the countries in the region.
The pathologies we're talking about, they are social, economic, and cultural, and profound, I think, dissatisfactions which threaten the rule of law, but not because of some failure in institutional design. If, for example, Pippa Norris is right, that there is a whole generation of people who feel they've lost the country because the norms have shifted. Pippa Norris claims that there is a profound cultural divide in the United States between people who feel that they've lost the familiar country and the familiar values that they were used to, and their opponents, often urban elites and educated, are no longer part of the same country. In Poland, it is the case certainly by electoral results. The Southeast thinks differently from the Northwest, these are fundamental social, economic, and political problems, which are challenges to many countries in the contemporary world. Trump, it's interesting, responded to this source of power not really by changing rules but by ignoring or subverting unwritten subcutaneous assumptions which, until they were questioned, seemed unquestionable. And then we discovered that, when they're questioned, they don't have huge possibilities of support if in the wider country there are many reasons why politicians and lawyers and others are subject to distrust.
So, I think we are facing a whole galaxy of dangerous and pathological tendencies which have important similarities. I think, if we had to explain them, Carothers is right that the explanation for the United States is going to be different from the explanation in Poland and Hungary, clearly it's gonna be different. But the manifestations, once you learn that this is a way you can get support and that this is the way these are techniques with which you can undermine certain ways of behaving, then these things can travel.
SR: Martin, let me ask about one other aspect, which many of the authors in the volume that you have co-edited, focus on, and that may be in retrospect, an unwarranted optimism about excessive faith in constitutional formalities and thin legal structures. Because, as you're pointing out now, constitutional checks are necessary but they're not going to be sufficient to protect democracy in the absence of shared democratic norms and societal consensus and, of course, remedies to several economic problems, which many of these societies are also beset by. But to come back to my question about Australia and Britain subverting so much of human rights law and humanitarian law on the question of refugees and those seeking asylum, do you think we were putting just too much faith in the existence of legal formalities and juridical independence, which would safeguard these rights, which we've seen, especially for the most vulnerable, those fleeing civil war, ecological disasters, not being able to get even access to, formally, correctly, the procedure?
MK: Two sort of separate responses. One, I think it's a mistake to blur the rule of law and everything that we would like to be just. It's a limited precious achievement. If we don't think of it as limited, then there's no need for the concept because we've got concepts of justice and social justice and equality and human rights and so on. So, I prefer to shift, when I talk about migration, the real evil there is a kind of failure to recognize the humanity and the predicament of so many people, and that's a moral failure of stupendous significance. And only part of it is related to the rule of law.
But on the rule of law I agree completely, and this has been a kind of schtick that I've had for a very long time talking about law, that one of the great difficulties we have in understanding and making good the values of the rule of law are this kind of legal formalistic parochialism common among lawyers. But then who else we gonna listen to about law if not lawyers? It's almost natural to do it but It's a mistake. There is an observation attributed...not attributed, he actually said it to an early 20th-century American lawyer, he said, "If you're thinking about something which is hitched up to something else and you can do it without thinking about the other thing, then you have the mind of a lawyer."
And lawyers do separate legal institutions, and that's the focus, like the man with a hammer for whom everything is a nail, a lawyer sees, if you're talking particularly about the rule of law, it's gotta be found in legal institutions. But it really is law and society 101, that law does nothing on its own.
And that's true in so many respects, and this has been something I've tried to write about a lot. First of all, if we think of law as the dispute-settling device, then, in every society, it doesn't do much of that because most things never get to a law. Then we might think about it as a signaling device. Law, the institutions send out signals, "This is allowed. This is not allowed. This is what's gonna happen to you. This is what's not gonna happen to you." And there are two things about those signals. Many of those signals have nothing to do with the forms of the law. So, if somebody says, "If you want a divorce, don't go to court, it's gonna be hell. Not because the law is hellish but because it's gonna cost a lot, it's gonna be aggravating, you're gonna get terribly upset." So, a lot of signals that the law sends are not the signals that it intends to send.
And then, when it sends a signal, that's the end of it. There are a lot of other signals. "What are the people who I live with thinking? What about the groups? " You're an anthropologist, you may well know of this wonderful legal anthropologist, Sally Falk Moore, she said, "What does anthropology offer us in understanding law?" What it offers up is that most of us are not standing as individual atoms just waiting for the law to tell us what to do. The law may still affect us but it has to penetrate all this dense stuff. So, in all of these respects, law is dependent on a whole range of things that it cannot possibly control.
And then, in reverse, you think, "Does that mean the institutions don't matter?" No, they do matter but they can't matter if they're not institutionalized. The regular running of legal operation, of the legal system, depends upon a kind of sync with a whole range of other things. And in many societies, including ones in Eastern Europe but also Latin America, a lot of people don't listen much to them or they don't trust it, they haven't learned from it. In some societies, the state is too weak to insist upon it. Through all sorts of reasons, which are not legalistic reasons, the law is hugely variable to influence anyone on the ground.
And so, in the cases that you mentioned, immigration, refugees, it's not that the rulers are arbitrary in the traditional sense, because, usually, they have legal authority to do what they do, it is that the social supports for the groups that are vulnerable victims are very weak and the law does nothing about that. And so, here, as in the topics we were talking about earlier, a social activation maybe by a sports commentator in England, is much more important often than a legal amendment. Mobilization, activation.
And again, you see it in Poland, the one thing I worry about when people talk about soft authoritarianism is that in Poland, much more than in Hungary, there has been a kind of mobilization, certainly among lawyers and judges, this is just as, in the most tragic of circumstances, Ukrainian nationalism has been bolstered by most terrific of attacks, then, mutatis mutandis, in Poland where nobody talked about the law, the cliche was, "Everyone lives around the law." Now lots of people talk about the law, and people win cases again and again, day after day, people win cases.
A friend of mine, who will remain nameless, is periodically repeatedly sued by the Polish government and Polish television station, criminally and civilly, and he hasn't lost a case. I tell him, "Every time you win, you weaken your case about authoritarian populism because they don't seem to be able to win a trick." So, it's a very complicated layered procedure. And to come back to an early question of yours, we don't know yet whether Orbán and Kaczyński didn't go by a more direct route because they didn't want to or didn't have the ambition or because they couldn't. Because Kaczyński doesn't want to lose a case. Ziobro, his procurator, keeps losing. He doesn't want that. But he keeps bringing them, hoping that he's gonna win them. And so far, social mobilization, in Poland's case, particularly legal mobilization, has been among the unpredicted things. One of them is the Renaissance of some sort of not law but legal consciousness, this cultural element that Thompson talked about. This seems to have been reignited by exactly the people who wanted to douse it, which is one optimistic little sliver out of a pessimistic story.
SR: Thank you for ending on an optimistic note because I was going to ask you, actually, to say, "Let's end with the Leninist question, 'What is to be done, Martin?”
MK: All I can, I think, say is that it won't be done by some new legal amendment, it requires social explanation and mobilization. Again, not of particulars, not of legal forms, not of a trained legal eye, but of what the social and political stakes are. And that sounds hopeless but it was what brought down communism in Poland. Somehow, in the midst, not of catastrophe but of a kind of weakened, demoralized, directionless government, people thought, "Well, it doesn't have to be like this." But it was people who thought it, it wasn't legal technicians who had the answers. Law is very important when people believe in it. It's not important when they don't. But when people believe in it, you still lead the law, that's the complication. Belief won't do it on its own. When law has support, when, for example, there are protests against the packing and sacking of judges in Poland, to the extent that they're large, effectual, government worry about them. If they're not, they try to either mow them down, but that hasn't happened in Europe, fortunately, or they worry about them.
And, we are, after all, in a situation where, in Poland, people are imagining that this government might fall. No one can predict it, that it will happen, but it's certainly on the cards. And if that does, there will be a change, at least in that one place. And sometimes failures can have ripple effects just as successes can.
SR: Thank you so much, Martin. Thank you for this really astute analysis of both the local specificities but also some generalities of these various manifestations of the phenomena of anticonstitutional populism. It's been a great pleasure talking to you today.
MK: Pleasure for me. And I'm sorry that I left you as much in the dark as we began.
SR: Martin Krieger provided us fresh insights on a conundrum that liberal democracies face today. Populists everywhere are effectively using the constitution, the written document to undermine and to abolish constitutionalism to use Sartori's famous distinction. The result is the systematic removal of institutional restraints on arbitrary power. But this is often difficult to detect and of course to contest as it is a slow and incremental process which damages democracy by a thousand small, often invisible cuts. It involves trickery and cheating, but also a range of legalistic tactics. These anti-constitutional populist leaders flaunt, however, their engagement with law only to subvert the very principles of the rule of law. Martin Krieger therefore asks us not to focus on the form, but on the ethos that motivates these leaders and their politics. He analyzed this relatively recent phenomena of anti-constitutional populism that can be seen in the politics and pronouncements of Trump in the United States, Victor Orban in Hungary, Kaczynski in Poland, where the leader claims not only to represent and to embody the real people, but also declares that those who are not considered to be part of the so-called real people are not simply political opponents, they are the enemies of the nation. Arguments of national sovereignty, but often also culturalist arguments are invoked to reject the rule of law as a so-called Western ideal, not suited to a specific non-Western context. Martin cautions against the simplistic notion that the rule of law is a universal that travels easily and can be transplanted anywhere. Irrespective of whether we like it, we need to recognize that the rule of law is an answer to a problem, the problem of how to temper arbitrary power, which is indeed a universal problem. The way in which the rule of law answers that problem can be institutionalized in different societies in different ways. Institutions do matter, but flagrant violations of rule of law, human rights, or humanitarian law by a government are often made possible not due to institutional pathologies, but due to tacit or explicit public support. Politicians may not be using arbitrary power when they curtail the rights of refugees or migrants, but they can do so because they have social and political support in their societies. The rule of law is a precious achievement. However, it's a limited one. When we fail to recognize the humanity of those who are vulnerable, those seeking asylum, for example, it is only partly a failure of rule of law. It is a much larger failure, a moral failure.
This was the eighth episode of Season Six of Democracy in Question. Thank you very much for listening and join us again for the next episode in two weeks’ time. My guest will be Daniela Schwarzer, Executive Director, Open Society Europe and Central Asia, who is a renowned expert on European affairs and Trans-Atlantic relations.
Please go back and listen to any of the episodes you might have missed. And of course, let your friends know about the podcast if you're enjoying it. You can stay in touch with the work of the Central European University at www.ceu.edu, and the Albert Hirschman Centre on Democracy at www.graduateinstitute.ch\democracy.