09 November 2016

High time for popular constitutionalism!

We have long praised the liberal values on which modern constitutionalism is built and there to enforce: inviolable and equal human dignity, human rights protection, democracy and the rule of law. These are all the cornerstone values of modern constitutionalism deeply imbued with liberal political ethos in whose absence they either cannot exist or acquire a completely different, perhaps even adverse meaning.

Not long ago the advent of illiberal democracy has been announced. It has been mocked, downplayed, but also seriously critically engaged with, including by the authors of this blog. However, since the idea has come from marginal countries in the European East, from Hungary, Poland, but also Slovenia and the likes, it has not been really perceived as an objective threat to the Western constitutional order.

The election of Donald Trump, not for who he is, but what he has been standing for, must change this. The members of the academic elite have for far too long disregarded what has been going on in the ventre of the Western societies. The majority in our societies seems to be increasingly disconnected with the liberal values that especially the legal academia, but also the ruling political class – at least on a declaratory level – have taken for granted and for irreversible in theory and practice.

We have been all wrong about it. Since there can be no such thing as democracy and rule of law properly so-called in the absence of the underlying liberal ethos, it is high time that all those in favor of constitutionalism turn back to the people. There can be no modern constitutionalism, guaranteeing the liberal values of the rule of law and democracy lato sensu, if these values lose ground among the people. But the trend is clear: those who have taken the people and their concerns (at least declaratorily) seriously for a plethora of sound and ill, but mainly illiberal purposes, are winning the game. This trend needs to be stopped, before it is too late. What the legal academia can and must do is to bring the people back in. It is, indeed, high time for popular constitutionalism.

SUGGESTED CITATION  Avbelj, Matej: High time for popular constitutionalism!, VerfBlog, 2016/11/09, https://verfassungsblog.de/high-time-for-popular-constitutionalism/, DOI: 10.17176/20161109-141523.


  1. Fritz Scharpf Wed 9 Nov 2016 at 18:09 - Reply

    Constitutionalism of any kind is an attempt of normative political theorists and jurists to constrain democratic politics. Brexit and Trump are manifestations of a rebellion of populist politics against (among other things like cultural liberalism and cosmopoltanism, economic liberalism, migration and the declassification of the lower middle class) de-politicized constiutionalism. I don’t see how a different type of constitutionalism could make a difference here. What would be called for is a different type of politics.

  2. Betzdorf Wed 9 Nov 2016 at 23:19 - Reply

    “You can fool all of the people, some of the time. You can fool some of the people all of the time; but you can’t fool all of the people all of the time.”

    What we experience today with President-elect Donald Trump is the resonance of many years where the political elites and their Wall-Street sponsors failed to balance own interests against those of the ordinary citizens.

    The financial crisis resulted in trillions of public money being handed out to a by and large fraudulent financial industry without any negative consequences for the fraudsters. (Forget about the Madoff or Gupta scapegoats.)

    The serial of silly wars “against terror” or whatever served essentially the same business plan: Filling the pockets of fat cats with tax dollars.

    Is it really a surprise that the middle class has now reacted to its eroding economic base?

    The so called “rule of law” is just a deception in this game:

    The financial and industrial elites discovered that _making_ laws is cheaper than _breaking_ laws. This sufficiently explains the hype around the rule of law …

  3. F. Müller Wed 9 Nov 2016 at 23:44 - Reply

    No, the rule of law – above all of constitutional law – is necessary to protect the minority from the majority.

    The rule of law and human right is what separates democracy from ochlocracy.

  4. Betzdorf Thu 10 Nov 2016 at 00:30 - Reply

    There is no such concept as “rule of law” in Switzerland, but their minorities are excellently protected by a well balanced political system.

    The “rule of law” is an completely obsolete and useless concept to disguise the law breaking by law making. CETA and TTIP are excellent examples for this process.

  5. Betzdorf Thu 10 Nov 2016 at 00:48 - Reply

    Laws don’t rule, humans rule.

    With the concept “rule of law” the elites try to transform a choiceful political process into a there-is-no-alternative decision.

  6. Leser Thu 10 Nov 2016 at 14:09 - Reply

    Comrade Betzdorf, you’re barking up the wrong tree. Your enemy, from what you post here, seems to be the political establishment, not the political system.
    In other words: I can dislike how a person drives, but shouldn’t jump to hating cars.
    The rule of law is about process and methodology, not about content. A constitution can ban immigration, and a law can hand out the death penalty to all rapists. The difference lies in wether a society agrees to express its will in laws that apply to all, to create these laws in due process with checks and balances – or to vote on whatever seems popular or urgent at that very moment, to decide from one day to the next, not disregard precedence and treat matters based on the current mood.
    That, I hope, is not what you’d want either.

  7. Betzdorf Thu 10 Nov 2016 at 14:49 - Reply

    The tree is exactly the right one, just read my previous posts.

    Without any doubt law sets the frame, but law does not and should not set the actions in that frame.

    Those actions are and have to be defined in the politicalmdomain and not in the legal domain. The “rule of law” is a camouflage for political actions silently introduced via the legal domain.

  8. Leser Fri 11 Nov 2016 at 09:24 - Reply

    The rule of law does not say that each decision is to be dictated by law. It just sets a framework of how the decision is to be made, and on lower levels of power, which decisions can be made.

    What you are opposed to, as far as I understand, is not the rule of law.

    To give an example: You seem to be opposed to the current extent immigration/refugees. Without rule of law, Angela Merkel could give your money, house, car, job and spouse to a refugee. Just because she likes to.

    When some people complained about Merkel inviting refugees, they said she broke the law with that decision. If so, that would be irrelevant without rule of law. She’d be allowed to break the law in any way she pleases, and then have everybody arrested and executed who disagreed.

    THAT is what the rule of law protects us from – autocracy. Especially those that critize the current powers-that-be should cherish the rule of law, as it frames in the power of the government.

    Again: You absolutely have something to complain about. But the better target would be the law or what is done within the law, not the existence and rule of laws.
    A government that does not accept the rule of law is something pretty foreign to most people in the Western World. And let us be happy that that is the case.

  9. Betzdorf Sun 13 Nov 2016 at 06:31 - Reply

    “Without rule of law, Angela Merkel could give your money, house, car, job and spouse to a refugee. Just because she likes to.”

    Houses, cars, etc. would be to obvious. But our money is certainly handed out to so called “refugees” and Greece, and Spain, and Portugal, and Italy, and, and, and …
    The breach of the no-bailout clause is a historical fact. The “rule of law” is preached but frequently not applied.

    We all will receive and pay the financial and political bill for that, sooner or later.

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