How We Got Here
Transition failures, their causes, and the populist interest in the constitution
Note: this is a “think piece” written for a Princeton University workshop on Authoritarian Constitutionalism, held on October 13-14 and organized with German and Turkish scholars. It should be fully developed in a subsequent essay. Nevertheless, if you wish to make use of any idea therein, please refer to this as the original source.
Introduction: Two Questions
How is it possible that, after the exhilarating start of democratic transitions in the late 1980s and 1990s, today authoritarian-populist options seem to be emerging in many new, as well as old, democracies? Why does populism, that in most of its historical varieties has been anti-institutional and anti-procedural, turn to constitution-making and constitutional rhetorics as one of its main arenas of contestation?
The answers to these questions are related. In the following, in the form of six theses, I start with what I mean by “populism”. Next, I wish to point to the two deficits of liberal democracy that provide the context for the rise of populist politics. These deficits have been intensified in many of the new democracies. I continue by stressing populism’s own deficits as the reason for turning to the constituent power. I end with a consideration of what liberal democrats can do to address the causes of the populist temptation, and deal with the likely crises of populist governments and regimes.
Thesis One: Populism is what Populist theory says it is
This is a bit of a joke, since outside of Ernesto Laclau there is really no populist theory. But there is Laclau (On Populist Reason), and in the tradition of critical theory and immanent criticism going back to Marx’s critique of political economy, I will start out with his definition. Anything that does not fit most of its elements, for all intents and purposes here is not populist. Beyond operating within a tradition there is a real point to this, because today’s main challenge to democracy comes from projects (movements and regimes) that very well fit the 6 criteria which are:
- Appeal to “the people” and “popular sovereignty” as empty signifiers, uniting heterogeneous demands and grievances (for example, the populist fiction of E. Morgan Inventing the People; the myth of M.Canovan The People)
- The claim that a part of society can stand for and represent the whole
- The construction of frontier of antagonism (=the friend-enemy couplet of Carl Schmitt in The Concept of the Political);
- Unification through strong identification with a leader, or rarely a unified leadership group (for example, the embodiment model criticized by Lefort in Democracy and Political Theory, Habermas in Between Facts and Norms; the general will of C. Mudde in Populism);
- Rhetorical types of argumentation and justification, de-emphasis or neglect of rational argument;
- Insistence on a strong notion of politics, or “the political” and a disinterest in mere “ordinary” politics or policy.
Again, what does not fit into this ideal type, satisfying at least most of the criteria, is not populist. Of course, not all who appeal to popular sovereignty, emphasize the political role of a part of society, have strong notions of conflict and opposition in politics, or use rhetoric or have leaders are populists. That is why the definition insists on the six elements, and not just one or two of them (even the three elements emphasized by Mudde, corresponding to 1, 3 and 4, miss a very key element: the part/whole dimension.)
Most importantly, populism should not be confused with the politics of civil society or an emphasis on social movements. This is more difficult, because civil society is a space where populist projects and ideologies can and do emerge; and because social movements almost always have a potentially populist side or component. But modern civil society is by its nature plural, and populist initiatives are anti-pluralistic. Thus they are “in” but not “for” civil society to use an old Marxian distinction.
Moreover, social movements, from the workers to the Greens, also inevitably have a realist side, as the distinction between Realos vs. Fundis (realist vs. fundamentalist Greens in Germany) revealed. Thus, within movements, one can thus be a populist affirming one side, and a democrat defending and promoting the other. Sometimes, populist leaderships or rhetoricians dominate a social movement. Because of this, it is not wrong to identify a social movement as a possible, but rare form of populist mobilization. Unfortunately, there can be non-populists who nevertheless sympathize with movement fundamentalism, who thereby become conscious promoters of populist mobilization and generally unhappy catalysts for the emergence of populist regimes.
Finally, then, populism can refer to a form of mobilization, a government, a regime, a political “vanguard” group, or even a “leader” who lacks many followers or a regime. Thus it is reasonable to refer to populism as a style rather than an ideology, with the obvious proviso that what is at stake is our lives, rather than just a theatrical performance.
Thesis Two: Populism Responds to Real Problems: the Two Deficits
In spite of the reliance on rhetoric and irrational appeals, populism does respond to real problems and should be located in contexts where these become especially salient. The first of these is the famous democracy deficit, and the second could be called, to maintain the parallel, a deficit of welfare. There is also an obvious cultural or status based source of populisms, the increasing anxiety of previously privileged or favored constituencies (like lower middle class white males in the United States). But because this cannot, or should not, be directly ameliorated, or treated in a derogatory manner (Clinton’s “deplorables”) I will leave it out of consideration. (I do hope that addressing the political and economic deficits can mitigate the feeling of loss of those whose historical status expectations will be, and must be, disappointed for good empirical and normative reasons).
The democracy deficit lies, as many have argued, in the historical gap between the representatives and the represented in liberal democracy. That gap could be reduced in the past by universal suffrage, the emergence of new parties, the activity of civil society organizations, an open public sphere, the extension of the system of rights, federal devolution, and occasionally the introduction of elements of direct or local democracy. But recently, it has been increasing because of the general growth of executive power at the expense of legislatures, political corruption and the role of money in the electoral process, the weakening of political parties, the rise of “media democracy,” the instrumentalization and commercialization of the public sphere, the transformation of civil society into a network of formal organizations, the reduction of direct democratic practices into plebiscitary ones, and the growth of powerful regional or international organizations less democratic in form and operation than were many nation states.
When out of power, populism, insisting on genuine popular sovereignty, registers this growing gap, attacks the beneficiaries as the enemy, and claims to overcome the democratic deficit by generating a form of power that is identical or can be identified with the will of the real people, however it is understood.
Moreover, making the populist case is facilitated by the welfare or welfare state deficit. Historically, social democracy and forms of economic redistribution were proofs that the gap between representatives and represented is not, or need not be, impossibly great, since elected officials can and do respond to popular needs and demands. Unfortunately, the predictions from the 1970s concerning the coming crisis of the welfare state, by O’Connor, Offe, Habermas and Bell, turned out to be correct for most countries, whether because of problems of bureaucracy, demography or, most likely, globalization. Unfortunately, the reflexive continuation of the welfare state advocated by many of these thinkers never took place. (On this see my 1992 book with Jean Cohen, Civil Society and Political Theory).
Recently, the new wave of immigration seems to have put additional burdens on welfare services and redistribution, even if the actual consequences of the entry of new populations, at least in the United States, could be considered potentially beneficial for social policy. Whatever the case and the reasons, large numbers of people do think their standards of living and even forms of life are under grave threat, and the inequality growing almost everywhere, as well as the austerity policies of governments in the context of un or under-employment give them very good reasons for this perception.
When in power, populism, as has been noted, may adopt “neo-liberal” tax and budget cutting policies. This all too common outcome, does not stop populist mobilization, of not only the left but also right wing versions, from advocating for the defense and extension of welfare policies, at least for those considered part of the “real people”. Even when in power, there is the option for populist governments of attributing continued inequality and austerity to outside pressure and influences, as well as internal sabotage. Thus, only addressing the democracy deficit through radical measures and especially, the complete identification with a leader or a leadership can, in the populist view of things, overcome the welfare deficit.
Thesis Three: The Democratic Transitions in Part did fail
The application of the previous two theses to understanding the democratic transitions of the 1990s is obvious. By choosing what I once called in Civil Society, Constitution and Legitimacy “imitation” as against “innovation,” the political forces triumphant in the first free post Communist elections opted for forms of political ordering and economic policy that were already under the burdens of the two deficits elsewhere. This was understandable initially, since representative democracy and market economy were great steps beyond one party regimes, and command economies. Yet the consequence was that the stress on forms of self- management, plural forms of property and even civil society in the earliest forms of democratic mobilization, were left behind — even in Poland where advocacy of these was the strongest. Adenauer’s slogan of “no more experiments” was the usual response to the demand for innovation. Even where there was something new, as in the case of the round table negotiations, the democratic spirit of this for constitution making was not insisted on, preserved, nor built upon. Constitutionalism was soon said to be the jurisdiction of the apex court, and the democratic form for the making of new constitutions was either neglected as in Hungary; or came to be represented by populists as it was at one time in Poland by Walesa.
Populism was present from the outset during the democratic transitions. As was shown by the research group led by Alain Touraine (Solidarity: Poland 1980-1981, 1984), even the great movement of Solidarity was torn between a unitary populist component, and a civil society oriented pluralist one. In Hungary few people noticed the rhetorical advantages of those who denounced the round table agreements, as the betrayal of the nationalist revolution, first by István Csurka and eventually Viktor Orbán. Similar movements became strong in all the central European countries, especially where the ex-Communist Party became the main left alternative, even as its members generously helped themselves to capitalist property in the so-called nomenklatura, or spontaneous privatization.
This indeed happened everywhere except in the Czech Republic. Socialist parties with that heritage but adopting Western influenced austerity policies even when the economic transition was already behind them, were not the most plausible defenders of social rights and social policies. Nor were parties liberal in the European economic sense plausible candidates to deal with the many dysfunctional side effects of the transition to a market economy: uncontrolled privatization, inequality, corruption and the decline of already very deficient forms of welfare. The space for economic populism was open, as the previously Thatcherite FIDESZ presciently realized, re-orienting its image and rhetoric.
Thesis Four: Populism Has Its Own Deficits
Fortunately, or unfortunately, populism has its own serious weaknesses that show themselves especially clearly when it is in power. Therein lies the hope for democratic renewal, but, equally, the danger of a full authoritarian and repressive turn, and the construction of a new regime. It follows from its very definition, and especially from the idea of the empty signifier that populism is a “thin centered ideology”, or, as C. Mudde expressed it, a parasitic one that needs host ideologies to be sustained. Socialism, nationalism, sometimes “neo-liberalism” and even religion, as we have stressed with J. Cohen in a forthcoming Constellations piece, are examples of such hosts, and even a typically left-right combination of the ideologies can play the role.
This leads to several problems however. First, since socialism, so-called neo-liberalism, and nationalism have rational cores, association with them exposes the populist to various types of “delivery deficits” whichever version of the host is relied upon. This in turn leads to failure and exposes the rationality deficit as well as the sociological emptiness of populism. Results opposite to what have been claimed are achieved, there are dysfunctional side effects, and most social demands brought together under the empty signifier are disappointed. We already see this with Donald Trump, who is a populist leader though not (yet) with a populist government, nor especially, a regime. But the inequality that grew significantly in Hungary under the Orbán regime is even more powerful evidence (see B. Krémer, ”The Social Policy of the Maffia State and Its Impact on the Social Structure”).
With religion the problem is partially different. Populism, as understood here, has a strong political theology, with a deus absconditus at its pinnacle, namely “the people”. Yet, at least for the “Abrahamic” religions, there must be only one God. “The people” of populism is clearly an idol, or a god both false and non-existent. Moreover, religion too can have rational ideas built into its symbolic structure, e.g. concern for the poor, preservation of peace and so on. These too can be severely disappointed under populist regimes. Finally, depending on the religious tradition, religious leaderships are not easily integrated into a secular structure of domination, and this can lead to conflicts between clerics and the leader and his group.
Thus, a host ideology represents a vehicle by which populism can try and even succeed achieving hegemony as a movement, but can present serious problems once populism is in power. Conflicts with carriers of the host ideology can become the bases of a new “antagonism”. Here lies the danger to democracy.
Populism begins as a challenge to the undemocratic features of either authoritarian regimes or really existing forms of democracy. For this reason, in spite of the undemocratic potential of each element of its definition, most populisms make democratic claims. In a way democracy, though not liberal democracy, is itself a host ideology of populism, necessarily combined with one or more of the others. Most populisms that come to power insist on elections as well as forms of direct democracy, like plebiscites, and even when they come to power in coups the claim is to save democracy and free elections and referenda from oligarchic deformation and manipulation. But when there is social resistance and even mobilization against those in power, and especially as conflicts with the host ideologies and their carriers emerge, free and fair democratic elections become a threat, and authoritarian options easily come to be favored by populist governments.
The attacks usually start with institutions of liberal democracy, already rejected by populists, such as the courts, and they continue with organs of communication, and finally the electoral institutions themselves involving manipulation of electoral rules or occupation of electoral supervisory commissions or the exclusion of foreign monitors and exit polls, or all of these combined. Of course, how easy it is to subdue, occupy or marginalize courts, the media, oppositional parties and electoral supervision will vary according to the institutional structure inherited by the populist government, its international environment, as well as the presence or absence of strong counter-movement. But only when these efforts are successful can we speak of a populist or populist-authoritarian regime. Generally the establishment of such a regime requires constitutional change, formal or at least informal, and it can come at any time during the tenure of a populist government depending on ideological considerations as well as the level of its anticipation of potential problems ahead.
Thesis Five: Populism Seeks to Occupy the Space of the Constituent Power
It is logical for populist governments to reach for the constituent power, and try to produce new documentary constitutions. Here lies one key distinction of populism and fascism, one that the populists themselves have insisted on since Peron (who initially flirted with fascism (see, for example, historian Federico Finchelstein’s recent work on fascism and populism.) Since the English, American and French revolutions, n liberal democratic theory there has already been a key place for the distinction of ordinary constituent and extra-ordinary constituted powers. When the claim of popular sovereignty for representative government became weak, one option was always a turn to the constituent power as its true locus. (Grimm: Sovereignty) The people remained a hidden god, but one that was said to appear in the “now times” (Jetztzeiten: Benjamin) or revolutionary moments (Arendt) of history. Thus populism, seeking also a strong concept of “the political”, has now (re)discovered the Schmittian link between friend/enemy and verfassunggebende Gewalt, at least on the theoretical level of a Laclau or the legal one of a Colon-Rios (see Weak Constitutionalism). Not remaining only a matter of theory, this corresponded to the level of action where new constitutions have indeed been made by populists, in Peru (1993), Venezuela (1999) and Hungary (2011), just to name three examples.
The political reasons for this have always been clear. First, the idea of the popular will embodied in a leader or a group is inconsistent with any genuine separation or division of powers. Where populists came to power under constitutions that had such elements, these had to be eliminated or vitiated. This was above all a matter of diminishing the power and independence of apex courts. Where, however, a populist government did not have the necessary majority, court packing using ordinary statutes was a possible, if less foolproof option (Poland).
Second, while the technical job could be and often has been accomplished by mere amendments (Russia), the intensification of mobilization behind a populist government could be better achieved either by amendment packages ratified in plebiscites (Turkey) or the making of new constitutions (Peru, Venezuela, and Hungary). After such mobilization, the anticipated gap between representatives and represented, or leaders and led could be explained away by ultimately basing it in the supposed will of the popular sovereign.
Third, and most importantly perhaps, authoritarian populists, when they encounter popular resistance can respond by trying to generate a more clearly authoritarian constitution, as did Maduro recently in Venezuela. By this time it may be too late, as we have seen. It is much better to anticipate, as did Chavez and Orbán, and use their initially high level of support to produce a new constitution linked to strong ideological claims, but with at best domesticated and reduced versions of classical liberal elements. Of course it is very possible, as both these populist leaders showed, to combine all three strategies: court packing and intimidation, amendments and the making of new constitutions. But the double goal is always the same: to demonstrate the higher democratic credentials of populists than liberals, and to allow them to repress, intimidate and marginalize dissent and opposition under supposedly constitutional provisions and with the acquiescence of packed courts.
Thesis Six: Populism Can be Defeated, But Only If…
In spite of the panic we often experience among academics with respect to the new populist authoritarians, whether Trump, Orbán or Erdogan, they are not all-powerful. While they do tend to construct self-regulating or self-maintaining systems or regimes (as in B. Magyar’s “Mafia State” in Post-Communist Mafia State: The Case of Hungary), they cannot control their external political or internal social psychological environment any more than any other modern regime. Even with repression and intimidation there will be both external and internal challenges, and the response of more repression and intimidation can reach a legitimation threshold where the regime cannot function at all as in the case of Venezuela currently.
The resulting conflicts and their outcomes will be determined by local circumstances, and it is not my job to anticipate what very diverse political actors are or will be capable of doing. On the bases of historical experiences, we can predict that while some populist-authoritarian regimes may survive for an extended period, others will be brought down by elections, possible as long as a new authoritarian regime type is not fully consolidated. Elsewhere there will be color revolutions or coups, and possibly even international interventions undertaken, wrongly or rightly. It may even be possible in some contexts to again accomplish the task of democratization through negotiations, and the making of new liberal democratic constitutions, this time in genuinely democratic processes. My concern here is on what democratic actors should focus on in order not to fail, nor to repeat the populist experience under new leaderships.
There are already calls for new populisms of the left to oppose the ones on the right. Such calls are either misleading, when the authors have in mind only a version of social democratic reformism, or disastrous when they are promoting a genuine populist project. It thus remains very important to treat left and right populisms as ultimately the same phenomenon, as Laclau’s notion of the “floating signifier” indicates. While he at least advocated a strong left populism as the only way to block floating to the right, success in such endeavor would depend on who has the more charismatic leaders, the most successful libidinal appeal, and the most impressive theatrical rhetoric. This should not be our way, unless we wish to completely surrender, as he did (going further than even Chantal Mouffe) the idea of rationality and genuine societal improvement.
So more populism should not be opposed to populism. This does not mean that we should disregard the problems, the deficits as I called them that enabled their rise. While addressing them is first and foremost the task of political actors, there are important tasks also for constitution makers who will face not only the task of undoing the damage of populist constitutionalism, but also making sure that the opportunity for such deformation will be greatly reduced on the constitutional level.
Yes, representative democracy has serious gaps in representation that should be addressed. At the very least these should be reduced in constitution making that is indeed possible without returning to myths of the unitary popular constituent power. Where new constitutions will have to be made, as in Venezuela, Hungary and Turkey, the emerging post sovereign paradigm should indicate the principles and the methods required to achieve multi-leveled democratic legitimacy even after revolutionary breaks (see my two books Post Sovereign Constitution Making and Adventures of the Constituent Power). In any case we should not leave constituent politics to the populists, nor imagine that we can do away with the distinction of the constituant and constititué (see articles by D. Dyzenhaus and H. Lindahl in Walker/Loughlin Eds. The Paradox of Constitutionalism).
Moreover, we should also have more interest in the mechanisms of normal politics, than many important recent theorists such as Arendt and Lefort. The democratic deficit on that level can be in part reduced through returning to the old strategies of extending suffrage, promoting participation, strengthening parties, strengthening the legislatures, regulating the world of media, extending federal arrangements through devolution, and extending the access for civil society and citizen initiatives. On the regional level, especially in Europe, some of these strategies still have a great deal of space for application.
On the level of the states themselves, new measures may be needed. These are certainly not exhausted by the list included by Rosanvallon under what he called counter-democracy (in Counter Democracy), but he pointed in the right direction of the reflexive application of principles of monitoring, control and accountability to the formally democratic process itself. Enhancing the democratic legitimacy of the apex courts, by shorter terms and fairer methods of appointment, along with extension of their jurisdiction to include amendment review, should have an important place among counter-democratic democracy enhancing strategies.
While a new proceduralism rooted in civil and political society rather than the state is part of the answer to populism in dealing with the problem of representation, it cannot in itself address the welfare deficit. To most people who are sometimes open to populist demagogy this social-economic dimension is more important than political forms, and indeed supplies the only evidence that counts as to the democratic accountability of these forms. With the already present crisis of the austerity-oriented Washington consensus, there may be a better chance to establish the reflexive continuation of the welfare state and post-regulatory forms of regulation than when the problems with the traditional forms of these were first diagnosed. In the United States at least, the main terrain of such concern remains health care and insurance reform, though dealing with the problems of un- and under employment and retraining (including the costs of higher education) may yet become equally important.
Yes, Machiavelli may have been right when speaking of reforms: before the crisis it is too early to get actors to agree to them, and when the crisis is there it may be too late. But given the strength of the main capitalist economies today, and for the moment liberal democracy in many of them, we may very well be still located between these two endpoints. Even more than in the case of democratic forms, the welfare deficit today requires regional and even international solutions. Nothing will work in Europe for example if the peripheries within the Union are subjected to more austerity.
Dealing with this problem will require more rather than less Europe, but also a more democratic one. Nothing will work however if the movement of peoples from poor and war torn areas, to wealthy and relatively peaceful ones continues or intensifies, and countries can refuse their fare share of the burden of accommodating refugees. It thus depends on the economic and security policies of the wealthiest nations whether they themselves can remain wealthy and free in the longer term. Populist answers whether anti-immigrant or anti-Islam will only exacerbate the deficits and the dilemmas. But we do not yet have the democratic answers to deal with the same problems. Here lies the intellectual and political task for not only the future, but already for the immediate present.
Andrew Arato is the Dorothy Hart Hirshon Professor in Political and Social Theory in the Sociology Department at the New School for Social Research.