In this episode of the Liberal Europe Podcast, Leszek Jażdżewski (Fundacja Liberté!) welcomes Professor Wojciech Sadurski, Challis Professor of Jurisprudence at the University of Sydney and a Professor of the University of Warsaw, Centre for Europe. He is a member of several supervisory or program boards, including the International Association of Constitutional Law, ICON-S, and the Institute of Public Affairs (Poland). They talk about democracy, populisms, and their different faces in light of the current crises.
Leszek Jażdżewski (LJ): How can we define ‘populisms’ and how do they differ from ‘popular politics’?
Wojciech Sadurski (WS): Many people refuse to use the word ‘populism’, claiming that it is very ambiguous, very opinionated, and unfairly dismissive of the movement it describes. Some even claim that when we do not like a particular movement we label it as ‘populist’, and if we like it, then we use the term ‘popular’. I have attempted to escape this problem by adopting an unashamedly institutional approach – primarily because I am a constitutional scholar more than anything else. Therefore, I am much more interested in institutions – and especially in constitutional approaches in narratives and discourses.
The dominant approach to populism in the contemporary scholarship is related to the discourses preferred by populists. However, I think that this is an unstable and undetermined approach. What I consider to be ‘populism’ in power (as opposed to those who are struggling to gain prominence) are the movements or states that, on the one hand, cherish and cultivate the democratic electoral pedigree. They originate from reasonably incontestable elections that are free and largely fair – at least when they come to power for the first time. They share aspirations and actions of every democratic government or a democratic party.
On the other hand, however, and this is what distinguishes them from what we may call ‘consolidated’ or ‘genuine’ democracies, is that once in power, they undermine real separation of powers – up to a point of abolishing them. They aim at full concentration of power in the hands of usually one man. I am using a gendered word, because today these are almost without no exception men.
Secondly, they try to manipulate the law suit their day-to-day political agenda. They do not respect the rule of law – something that to some extent attempts to constraint the politics. So, I am thinking of populists or populist governments, parties, or rule, as being hybrid animals. On the one hand, they are no longer pro-democratic; on the other hand, and this is what distinguishes them from traditional autocracies or despotisms, they care about the societal support because their legitimacy stems from the democratic elections.
LJ: Is ‘populism’ not too broad of a term to describe and put in one category governments, parties, or movements that are so different in many aspects? Perhaps there should be different kinds of populisms (national, left leaning, etc.)? Is it useful in describing political parties and their behavior?
WS: If we go over the list of leaders and movements, we realize that, in fact, they have more in common than differences. But let me be clear: I do not include in my study the so-called ‘left wing’ populisms (like Syriza or Podemos), because they, indeed, have some fundamentally different features. Many people consider them to be populists, but I do not, because apart from the institutional factors, I cannot be completely myopic to the fact that there are also certain ideological factors that are typical of populisms.
This is why I am focusing on right-wing populisms only, which are based on exclusionary philosophy, anti-pluralism of excluding ‘the other’, discriminatory legalism – using the law against the ‘enemies’. These enemies are primarily external (refugees or would-be immigrants) or the internal ‘others’ (ethnic, religious, non-religious, or sexual-orientation minorities).
Almost without any exceptions, populisms are based on a certain paranoia, conspiracy theories, and irrationalism. What is extremely important is that we cannot really consider there to be only one ‘populism’, as we should talk about ‘populisms’. The reason for that is that contemporary populisms differ depending on societal sources for their popularity – these may be widely different. For instance, the source for the popularity of Donald Trump in the United States is different from those of Jair Bolsonaro in Brazil, Jarosław Kaczyński in Poland, or Viktor Orban in Hungary. These different factors which trigger popularity and growth of various populist leaders generate different types of populisms.
For example, when it comes to Brexit and Brexiteers, in conventional understanding Brexit was populist – in a sense that it used all sorts of typically paranoiac type of rhetoric – against the immigrants and the European Union. But they were not populist in my dictionary, because the leaders of the pro-Brexit movement did not strike me as being in any way against the separation of powers, the rule of law, or checks and balances – the institutional/constitutional features that are characteristic of contemporary democracies. This is why for me, as a constitutional lawyer, the Brexiteers were not populists.
If anything, it is the other way around. One of the important sources of antipathy of many people in the United Kingdom toward the European Union (including the Council of Europe and the European Court of Human Rights) is that they somehow distort the traditionally English or British institutional structures. That the EU is over-bureaucratic, reduces the powers of a democratically elected government, and we know that the British democracy is consolidated and strong – despite its peculiarities, such as the absence of a written constitution, among others.
Summarizing, Brexit is not a good example of populism. They are called populists for the reasons that I have just mentioned (including the crazy logic of opposing the European Union), but they are not populist in terms of undermining and distorting the democracy of their state.
LJ: Could you elaborate on the war on institutions that is often waged by populists? How should we address it?
WS: I really like the quote from Scott Galloway, in which he says that the institutions are meant to slow down the immediate translation of the will of the majority into a binding law. For example, someone has an idea about changing the structure of the judiciary. The institutions are here to give us space to rethink such an idea – to deliberate and discuss it further. Maybe it is not such a good idea? What are the opposing views?
This temporal aspect is something that populists hate. If they manage to convince (often with irrational arguments, propaganda, indoctrination, or sometimes even with intimidation or threat) the general public opinion to some ideas, they want to see them enforceable by law overnight. In this sense, they are anti-institutional, because the very point of institutions is to create a certain structured deliberation and to establish all sorts of obstacles between someone having an idea and enacting it as a law or a national policy.
However, they are also institutionalists, who are pro-institutions, because, formally speaking, they do not want to abolish the existing institutions. When we compare today’s institutional structure in Poland, in the year 2022, with that of the early 2015 (before the double-election which brought populists back to power) and look at it from a purely formal point of view, the changes are minimal – certainly smaller than in Hungary. Most of the same institutions exist. Their composition, sometimes the mode of election, seem to be exactly the same. Sometimes, there are some changes – as is the case of the National Council and the judiciary have undergone changes from the point of view of how its members are elected. Still, it is an exception rather than a rule.
Nevertheless, everything has changed. These are completely different institutions – they exist, but they have been fully captured by the ruling party. This capture is not just limited to removing the incumbent and placing their own people inside the existing institutions – this happens all over the world, also in democracies. There are several thousand positions in the federal government of the United States which are subject to filing by the new president and administration, and this is not considered to be particularly abhorrent within the principles of democracy.
What happened in Poland (and in Hungary and Venezuela under Chavez, to an even larger extent, and in Philippines to a smaller extent), however, is that these institutions have been ‘hollowed out’. In constitutional scholarship, the concept of ‘hollowing out’ of institutions is a metaphor the extent of which varies across countries. I have tried to provide a taxonomy of the most typical and, at the same time, pernicious manners of hollowing out institutions inherited by populists from their predecessors.
One of these tactics is simple erosion of an institution. You maintain it but deprive it of resources and powers it had before to do what it is supposed to. This was the case, for example, of human rights organizations – the Human Rights Commission in the Philippines or the Ombudsman offices in Hungary.
Another one is creating new institutions that are parallel to the existing institutions, and which overshadow the former ones. So, there is still a constitutional institution which was inherited from the previous regime, but also a new institution which de facto overtakes the former one. This applies to, for example, media councils in Poland or budgetary and financial supervision institutions in Hungary.
Then, we may observe a simple capture, which basically means that you put new people in the old offices (like in the Constitutional Tribunal in Poland). In such a case, slowly but surely, you are getting the majority of your people in the institution, and you leave the institution alone, because you know that these people will do whatever you, as the ruler, want them to do. Here, there are multiple examples of such subservient institutions in Poland.
One may also maintain the institution but change its internal structure. From the outside, it is still the same institution that has been only differently composed, but this different structure completely changes its character. Take the Supreme Court of Poland. It used to compose of five chambers based on different disciplines. These chambers were reduced, and two new ones were added, which are now selected in a completely different way, and which now are determinative of the political function of the Court. The purpose is to make sure that the most strategically sensitive decisions (for instance about the correctness of the elections) will be made by a new chamber, which can now be fully relied upon by the ruler.
Now, if we look at the broad picture, we realize that there are many different kinds of distorting, manipulating, and changing the existing institutions so that they remain in place but also play a role that is not only different from their original raison d’être, but actually is the opposite of that. My favorite and the most striking example constitute the Constitutional Courts both in Poland and Hungary.
Like any constitutional supreme courts, Constitutional Courts had always been considered to be ‘counter-majoritarian institutions’. They exist to deliberately restrain the majority rule and make sure that it is consistent with the constitution. But the way they have been used by the populists in these two countries is just the opposite – rather than being counter-majoritarian institutions irritant to the current legislative majority and the executive, they become willful and enthusiastic helpers to the government and the legislative majority.
Often, when the government does not want to do something (for example, if it is bound to be costly internationally – like in the European Union, or nationally – among the public opinion), and yet they feel that they want to introduce certain changes, they delegate this unpleasant task to the Constitutional Court, which is not accountable before the general public, so it can do it. Perhaps the best example of this practice is the way in which the abortion law in Poland has been completely changed by the Constitutional Court, because the government did not want to do it as it expected and feared protests in the streets. On the other hand, it felt that the pressure from the Catholic Church has been so strong that the law had to be changed – so it delegated the decision. In this way, the Constitutional Court is a helper rather than a restrainer of the executive.
LJ: To what extent the problem of defending the institutions is tied to how we perceive democracies – or liberal democracies, to be more precise?
WS: Of course, we may have different conceptions of democracy that identify different aspects of the rule by the people – this is what democracy is. The population has the authorship and ownership of the decision-making – they can decide who will be their next government for a relatively short period of time (4-5 years) as well as what types of programs will be given effect to during this time. There is no democracy without it.
However, even if we limit our focus on democracy to these issues (the actual influence and impact of the population upon who rules them), then we immediately see that this is not just about the electoral act of voting. Of course, it is the culmination of the rule of the people being actualized. Still, in order for it to bear any meaning at all, a number of conditions which render the act of voting meaningful and real must be met.
For example, if there is no freedom of the press, we cannot hope that the electorate will be well informed about the options which are on the table. They will vote, but they will vote irrationally, because any decision without information is not a proper decision. Furthermore, we must have the freedom of association and, in particular, the freedom of political association, because without it some political and ideological options will be unable to convey their message to the general population.
Then, there must be the freedom of assembly, because public rallies, meetings, and demonstrations are a necessary condition for democracies to exist in today’s world. There must also be the freedom of religion because some of the major issues that are being decided by the vote of the population concern the relationship between the state and religion, or the state and churches. Without the freedom of religion, this type of formation of will not be fully rational and free.
Once we realize that, then we will see that there is much more to the elections than merely the right to vote. Because you may have the right to vote, but no knowledge, real choices, or no chance to associate with others with similar views. Each of these deficits detract from the sense and value of your right to vote. In this sense, democracy is a much broader and more aggregate concept than having the right to vote. It concerns also what happens before and after the vote. Because if you realize that your elected representatives have lied to you or deceived you, are unwilling or unable to fulfill their promises, you must have some ways of sanctioning them during their term of office.
These are the conditions that make up this ‘liberal’ ingredient of democracy – they are about liberties and rights which render voting meaningful. Here, I am not using ‘democracy’ in a particularly broad sense, but rather in the most minimal sense possible. At the same time, I accept that there are many other very important ideas and values in addition to democracy.
I am in favor of a degree of socio-economic equality, nut I am not sure if equality as such is part of democracy. I am also in favor of peace, but I am not 100% sure if peace should necessarily be a part of the definition of ‘democracy’. There are many other ideas like these. And yet, we cannot say that we may have ‘liberal’ and ‘illiberal’ democracy, because in the case of the latter, if its illiberalism affects adversely the freedoms that are instrumental to elections, then it ceases to be a democracy.
LJ: Is there a way in which democracies, politicians, and commentators can try to immunize democracies to populisms? To live with populism but defend the institutions? Or should we try to dismantle populism altogether?
WS: First of all, there is no ‘one-size-fits-all’ solution to dealing with populisms – precisely because the sources of populisms are different, as we have already mentioned. In the countries where populism stems mainly from globalization or the economic status anxiety, then we will have different responses than in the countries where populism is rooted primarily in nostalgia for past authorities, societal system, or religion.
Therefore, it is important to begin with a good diagnosis of what triggered populism or its popularity in a given country, and only then will we be able to give a proper answer. We, anti-populists, liberal democrats should think the worst of the populist leaders, but at the same time show respect to the populist voters. We should not neglect them, nor offend or insult them. Even though the answers given by populists are wrong, the questions asked by their voters are real – and we need to have a closer look at them.
Still, we have to be very careful. On the one hand, we should consider what are the reasons for the popularity of populists in a given country and how can we provide better answers than our populist opponents. How can we make sure that the people in the post-communist countries who feel that they are the net losers of the transition (which may be real or imagined) are satisfied and compensated for their loses?
We cannot cross certain lines. We should not absorb certain populist policies into our programs, because the cure may prove worse than the disease. When PM Mark Rutte, in the Netherlands, adopted Geert Wilders’ anti-immigration ideas, he may have saved his political skin and got re-elected, but did it constitute the advance for the cause of humanity and democracy in a country like the Netherlands? I am not quite sure.
So, let us look at the sources of frustration, but try to give answers which are not exclusionary, based on hatred, and which simply reproduce various stereotypes and prejudice that populists use to strengthen their popularity. In other words, we should not be like them.
See Wojciech Sadurski’s “Pandemic of Populists” (2022): https://www.cambridge.org/core/books/pandemic-of-populists/E75407A3309F868636BBA65F9F1ED783
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