17 September 2021

“Not What We Were Promised”

Four Answers to an Insoluble Question  

Review Essay

Günter Frankenberg, Authoritarianism: Constitutional Perspectives (Cheltenham, Edward Elgar, 2020)

Ivan Krastev, Stephen Holmes, The Light that Failed: A Reckoning (London, Allen Lane (Penguin), 2019)

Cristina Parau, Transnational Networking and Elite Self-Empowerment: The Making of the Judiciary in Contemporary Europe and Beyond (Oxford, OUP, British Academy Monographs, 2018)

Michael Wilkinson, Authoritarian Liberalism and the Transformation of Modern Europe, (Oxford, OUP, 2021)

 

There was a time that my generation, the cohort of those who came of age in the 1990s, still remembers well. In Eastern Europe, after 1989 and for a good decade and a half thereafter, the world appeared, at least through the eyes of young post-communist urbanites, brimming with liberal-constitutional potential. True, there would be hurdles and a few bumps on the road and yes, our societies were dirt-poor and most of our industry heaps of half-corrugated metal. Yet the future lay ahead full of promise: we were to build constitutionalism and free market economies at home, have international human rights protections through the Council of Europe, security via NATO membership, and then, perhaps, one day, full Western prosperity and freedom in the newly-minted European Union. In those years, one read Francis Fukuyama’s End of History, today’s global punchline, with interest and excitement.

The age of innocence has come and gone, leaving behind a sense of malaise and even fear. The United States is still reeling from the aftereffects of the Trump presidency; four years of discombobulated politics in the world’s oldest constitutional democracy, closed with a mob attack on the Capitol. Scenes of American troops departing Kabul disorderly after twenty years of occupation, with many lives given and trillions spent to make the country ‘safe for democracy’, make a mockery out of ‘transitology’ and ‘democratization’. In Europe, the Orbán majority managed a unique feat, that of making Hungary the only EU member, indeed the only European state in memory, which harassed a university until it drove it out of the country. Meanwhile, Poland has been carrying out, for the better part of a decade, an attrition war with Union and Council of Europe institutions, as its South-eastern municipalities establish dystopian Macondos (‘zones free of LGBT ideology’). The Enlargement, which seemed for a while indomitable (EU-15 (1995), EU-25 (2004), EU-27 (2007), EU-28 (2013)), petered out and then took an abrupt nose-dive after Brexit, when the second-biggest economy in the bloc and one of its only two credible security providers left the Union.

As the Enlightenment is no longer marching through the world, most ask themselves the Leninist question (what is to be done?). A few inquire into the more apposite and logically precedent issues: How and why did this come about? Why don’t we now have what we (thought we) were promised in the 1990s? The four books under review seek to play the long game, by addressing causes and phenomena. Together, they offer a balanced assortment of positions: two (Frankenberg and Holmes-Krastev) are primarily written as defences of the fraying liberal consensus against the recent populist onslaught, whereas the second group (Parau and Wilkinson) question what the authors believe to be liberal internationalism gone awry. Due to editorial space limitations and the argumentative economy of this review essay, only the main theses will be reconstructed, around the main motifs that animate them.

I. Searching for the Label

Günter Frankenberg, a distinguished German comparativist who coined the wonderful ‘IKEA theory’ of constitutional design, addresses present perplexities by placing recent phenomena on a continuum.

Frankenberg resists the currently prevalent trend in the academe, that of using and abusing the ‘populism’ label (pp. 52-53: “Its indeterminacy resists definition and analytical clarity, very much like the proverb has it: jelly cannot be nailed to the wall.”). He proposes instead a more encompassing essentialist taxonomy, under the umbrella concept of authoritarianism. Authoritarianism, according to Frankenberg, has four essential features, which overlap in practice but can be distinguished ideal-typically: i. an opportunistic power technology that relies on informality, pretextual uses of emergency, executive domination and the submission of independent institutions (first and foremost, the judiciary); ii. A patrimonial perception of power, equating the state with private property, so that public money can be pocketed and public power bequeathed at will and perhaps even recouped (the Putin/Medvedev scheme); iii. The transformation of the people from electors into mimeographed accomplices, via privatized forms of participation (e.g., petitions instead of protests, rubberstamp plebiscites) or ritualized, choreographed publicity (Reichsparteitag, National People’s Congress), and iv. A cult of immediacy that suppresses intermediary organizations and replaces them with cardboard-cutout enemies and contrived illusions of homogeneity and communion (with one another and with the sinister fatherly leader: Mao swimming across the Yangtze, Mussolini in the Adriatic, Hitler with his dog, Putin horseback-riding bare-chested, etc.). According to Frankenberg, authoritarian tendencies and moments exist also in liberal design (secretive elites in Philadelphia, Dredd Scott v. Sandford, Locke’s prerogative power) or in the spillovers of liberalism abroad (e.g., the East India Company or ‘banana republics’ under the yoke of the United Fruit Company, at pp. 147-149).

In the end, however, the attempt to counter “populism” by recourse to a grander, more encompassing narrative (authoritarianism) only leaves the reader stranded on a bigger conceptualist shoal. Donald Trump’s exploits populate the entire book; the cover itself reproduces an effigy image of the former US president, pastiched after the famous Leviathan engraving. Yet, unsavory as Mr. Trump has undoubtedly been, comparing him to Hitler or Goebbels (Twitter as the modern equivalent of the Volksempfänger; “Trump, very much like Hitler, Mussolini and today’s authoritarian nationalists”, at p. 218 and in similar permutations throughout) hardly advances the type of knowledge that is constitutionally useful. Such loose associations are, to be sure, refreshing in the arts (Brezhnev took Afghanistan, Begin took Beirut, Galtieri took the Union Jack, and Maggie, over lunch one day, etc.) and perhaps in different formats (a pamphlet, for instance). But incessant associative-polemical parallels between Donald Trump and the likes of Adolf Hitler are unhelpful in what purports to be a constitutional theory argument. Frankenberg does in the beginning draw a distinction between totalitarian and non-totalitarian authoritarianism but this difference is lost on the reader throughout most of the book, as the common denominator (authoritarianism) gains the upper hand in the argument.

Methodologically, as Professor Frankenberg pursues authoritarianism and authoritarian tendencies across history and the globe, he is all too often at the mercy of online and press citations for purposes of exemplification. As sources are crammed in to fit the narrative and not triangulated, this results in perplexities. We find out, for instance (p. 169) that each Singaporean must pay 244 euros a year towards PM Lee Hsien Loong’s salary of 1,7 million dollars. Even without the currency exchange, that would put the population of Singapore at 6967,2 inhabitants; the country’s population is however 5,7 million. On p. 163, another example of patrimonialism is given. Kenya’s President Uhuru Kenyatta has, we are told, the benefit of “the not inconsiderable inheritance of a property that was illegally appropriated in 1963”, estimated at between 1 million and 2 billion square meters in size. 1 million sqm is a French vineyard (100 hectares). A 2 billion sqm. property is however in a whole different ballpark. This tendency extends to sometimes ‘pick and choose’ forms of constitutional referencing. Art. 56 (1) in the Romanian Constitution is cited as an example of authoritarianism, due to the fact that it mentions the “sacredness of loyalty” to the country (not, as Frankenberg cites the provision, “a sacred duty”, p. 25). The provision is prefatory to its operative part in Art. 56 (2), namely, oath-taking by public officials and members of the armed forces.1)Art. 54 (2): Citizens holding public offices, as well as the military are liable for the loyal fulfilment of the obligations they are bound to, and shall, for this purpose, take the oath as requested by law, see https://www.presidency.ro/en/the-constitution-of-romania Why oath-taking, a widely used procedure in liberal democracies (oaths by elected officials, by public servants, by the military, by newly naturalized citizens, by witnesses in court, etc.) should be authoritarian in nature remains unexplained.

Likewise, since Frankenberg tries to identify the essence of authoritarianism across time and space in its outward manifestations, associations are often difficult to follow. Doctors, we are told on page 153, are “special candidates of trust who are offered succession to the throne” and a footnote specifies that Donald Trump had appointed the former White House physician as chief medical adviser (not as dictator in Trump’s stead, however). François Duvalier is mentioned (a doctor dictator!) and we find out that he appointed his son Baby Doc to succeed him (a playboy, not a doctor). Radovan Karadžić follows (dictator and doctor, yet not a dictator’s doctor) and the enumeration closes, finally, with a dentist-dictator, Mr. Berdymukhamedov, who succeeded his dictatorial patient, Mr. Nyyazov, at the helm of Turkmenistan, once the latter had passed away. Autocrats prefer dogs and horses “as beastly incarnations of loyalty”, we are told on p. 220. The relevance of this consideration is, again, elusive. President Obama, presumably not an autocrat, had two Portuguese water dogs that he dearly flaunted before cameras, whereas the author’s authoritarian nemesis, President Trump, kept no pets (maybe because authoritarian leaders are also egotistic).

The argument, locked on the concept of authoritarianism and the drive to define deviations from constitutional normality in genus proximum rather than differentia specifica, bogs down in the end, where the features of authoritarian constitutions are itemized and tabulated in diagram form, along the axes of addressees (internal and external audiences) and purposes (symbolic and instrumental), p. 254. One example, the most relevant among the four quadrant categories, should suffice. It is generally characteristic of autocratic constitutions, we are told (Authoritarian Constitutions as Governance Manuals; internal audience, instrumental use), that: 1. ‘freedoms are linked to both obligations and reservations in favour of the security and stability of the public order’2)So does, in principle, the German Basic Law. Art 14 (2) GG: Eigentum verpflichtet. Sein Gebrauch soll zugleich dem Wohle der Allgemeinheit dienen. See also the almost identical formulation in WRV, Art. 153: Eigentum verpflichtet. Sein Gebrauch soll zugleich Dienst sein für das Gemeine Beste. 2. “They contain clauses prohibiting the abuse of rights.”3)And yet, Art. 18 GG [Forfeiture of basic rights]; Art. 21 GG [Party bans]. 3. “They provide for restrictions on or the lifting of restrictions in exceptional situations, such as riots, war or disasters”4)US Constitution, Art. I, Section 9. The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it. So do, in effect, most constitutions, in the idea, as plastically expressed by Justice Jackson, that they are not meant as suicide pacts. Also see, Art. 16, French Constitution of 1958., 4. “They are subject to a general legal reservation.”5)Such as, perhaps, Art. 15, ECHR. https://www.echr.coe.int/documents/fs_derogation_eng.pdf. Art. 15 is replicated in numerous constitutions, as general reservation subject to proportionality review (e.g., Art. 53 Constitution of Romania-Restriction on the exercise of certain rights and freedoms). (p. 257).

II. Let’s Psychologize the Masses

Ivan Krastev, noted public intellectual and political scientist, and Stephen Holmes, prominent NYU constitutional theorist, start from the postulate that tectonic plates are indeed shifting. According to their tightly and very engagingly written book, mass psychology is the best point of access to study the roots of current predicaments. They have in a way written a Psychologie des foules for the Populist Age.

The authors recognize, with a sub-rosa Schmittian accolade, liberal self-complacency after the collapse of the Soviet Union as a factor (as in: ‘When my enemy is gone, I no longer know or have enough reason to be true to the best version of myself’).6)At p. 168: “The end of the Cold War seriously reduced anti-oligarchic pressures inside the liberal West, since captalists no longer felt compelled to curry favor with workers in the hopes of reducing the appeal of a militarily powerful egalitarian alternative to the liberal order.” This line of thought, also social-psychological, is however mentioned somewhat in passing and not valorised throughout the argument. Populist psychology receives most of the attention.

According to the argument, to blame for Eastern European populism is copycat resentment. A desire to imitate the West in all things was bred by the anticlimactic nature of the transition; Holmes and Krastev cite Furet, who “pungently” noted that “Not a single new idea has come out of Eastern Europe” (p. 24). Revolutions of normality (thus Havel) were driven only by a cartoonish desire to be exactly like the Western model (I wanna walk like you, talk like you, too). Such expectations were unrealistic from the start, given past development lags and contemporaneous GDP differentials and thus inevitably disappointed by realities. Disappointment bred frustration, frustration bred anger, anger made disgruntled Easterners to eventually throw the failed copycat’s garden variety tantrum (Orbán, Kaczyński, Putin as well but with a geopolitical twist).

To be sure, the authors pursue their imitation thesis down to its more sophisticated implications. In this sense, the observation that resistance to migration during the refugee crisis (Orbán, poor man’s Trump, building his barbed wire fence against Syrians fleeing war and destruction) is in fact resistance to depopulation is nothing short of masterful. EU integration has indeed generated massive economic emigration; the consequences are mixed, since diaspora remittances are a poor substitute for lost workers, brain drain, imperilled social security systems, children often left behind to be raised by grandparents, etc. According to the authors, when Eastern European populists defend their countries against migrants who have no intention to settle in the CEE anyhow (like everyone else, they want to go the West), they defend in fact their countries against EU freedom of movement exercises with exodus-like implications. The remark that when one imitates dynamic societies, one is inevitably disappointed is also insightful. In this vein, resistance to social progressiveness (portrayed by populists as ‘Western decadence’) is according to Krastev and Holmes a direct result of the fact what the ‘West’ Easterners admired and wanted to emulate was the predominantly Christian-democratic, anti-communist, conservative Western Bloc of the Cold War (p. 43). That version of the Occident is gone and the populist, stuck in the past as he is, doesn’t even get it.

Yet if the authors would have pursued their Freudian analysis a little deeper, they could have discovered that in some respects Eastern European elites of many party colours have been met (“back to the future!”) by aspects and realities that correspond well to their representations during and in the immediate aftermath of communism.7)Jan Komárek, Waiting for the existential revolution in Europe, International Journal of Constitutional Law, Volume 12, Issue 1, January 2014, Pages 190–212 (describing the suppression of social conflicts ‘in the name of Europe’ and using the Czech Republic as an example). The version of economic liberalism that was and still is popular among anti-communist CEE intelligentsia consists essentially in Hayek, Mises, Chicago-style market fetishism, seasoned by finer spirits with a few, often disjointed references to Adam Smith or Nozick and recently updated by the new entrepreneurial classes with the Economist as weekly Gospel of record. Everything else is ‘communistic’. In the 1990s, what the Eastern mainstream had ideologically yearned for still found little correspondence in the realities of the Western social-democratic states whose prosperity (but not solidarity) they wanted to achieve. In a sense, institutional Europe, the EU, reinforced, particularly in the aftermath of the 2008 financial crisis, the kind of ruthless market fetishism that was always projected upon Westernization in the outskirts of Europe. What was initially peripheral bovarism has thus become mainstream.

To wit, the current ‘anti-populist’ Prime Minister of Romania, Mr. Florin Cîțu, was dubbed by his local supporters, with unintentional humour, as a ‘Romanian Thatcher’ (and also as a ‘Romanian Merkel’). When asked by reporters a short while ago, in the context of an abrupt inflationary spike, whether he knew the price of a loaf of bread, the Prime Minister answered that he didn’t know and tried not to eat the thing. A different gender-blind analogy (“Let them eat cake!”) was naturally drawn. He continued by praising the liberal economic miracle that had produced prosperity: Romania was no longer a low-salary economy, he said, as 1% of the employees earn net wages of more than 3000 euros per month.8)https://www.digi24.ro/stiri/actualitate/politica/citu-intrebat-daca-stie-cat-costa-o-franzela-nu-mananc-paine-dar-am-fost-la-piata-1628931 A prominent member of the National Liberal Party even toyed with the idea, recirculated also by a group of local businessmen, that equal voting rights as such are populistic and that, consequently, a return to the Besitz und Bildung census-based suffrage or perhaps a plural voting system (i.e., as in Belgium between 1894 and 1919 or in the Kaiserreich, under the Prussian ‘Dreiklassenwahlunrecht’)9)Unviversal male suffrage was introduced in 1871 for the Reichstag but state practices remained restrictive. The three-tiered census-based electoral system in Prussia (Dreiklassenwahlrecht, Three-Class-Suffrage) was called by liberals and socialists, ironically, Dreiklassenwahlunrecht (Three-Class-Suffrage-Injustice). could be the solutions.10)https://www.contributors.ro/despre-analfabeti-cu-drept-de-vot-si-votul-universal-asa-de-dragul-discutiei/ These are admittedly crude, albeit in their brutality for that very reason honest, formulations of more suavely framed Eastern European trends. Variations of the latter category abound in narratives concerning ‘captive’ vs. ‘rule of law-prone’ (‘enlightened’, ‘European’) electorates, ‘bread and circus voting’, and the like. The relevance and driving forces of such discourses are only superficially accessible by mass psychology. Facts are arguably more useful, for instance: the lack of a Western-style left tradition in the East, caused by the agrarian nature of the pre-communist societies (peasant populist parties were the mainstream left before communism),11)David Mitrany, Marx Against the Peasant: A Study in Social Dogmatism, Chapel Hill, University of North Carolina Press, 1951. the fact that many of these countries are created by bits and pieces of former Empires and development lags still linger on between regions, or the uneven distribution of EU accessions benefits, skewed against rural and small-urban areas and in favour of big cities (in Bucharest, life expectancy itself is 3,7 years higher on the average, compared to rural and small-urban areas or former industrial cities).12)http://library.fes.de/pdf-files/bueros/bukarest/18052-20210623.pdf This configuration results in all manner of instrumental discourses, that can partly be explained by social psychologies. In Romania, for instance, decades of battles between the big urban centre-right (often self-interested) defenders of the rule of law and the more rural-centred mainstream left, just as opportunistic and corruption-prone as the rest but also redistributive, have resulted in the lionization in the Western press of the numerous Romanian diaspora as a counter-populist force for the good, rule of law, and European progress.13)https://www.dw.com/de/proteste-in-rumänien-die-diaspora-soll-es-richten/a-45017998 ; https://www.theguardian.com/commentisfree/2018/aug/22/romania-migrant-diaspora-protest-police-crackdown-corruption The diaspora votes overwhelmingly right, partly due to psychologically speculated narratives, partly because it is easy to vote ‘anticommunist’ and elite-conformant when you do not have to suffer the effects yourself (cuts to the healthcare system, to education, to all benefits). In presidential elections, when participation is higher, Romanians abroad can even swing the country vote to the right, as in 2009. One needs however to ponder what kinds of right do many Romanians abroad vote. As soon as a xenophobic, anti-vaccination, ultra-nationalist party was on offer, AUR, it garnered promptly 23.3% of the expat vote, more than double the inland percentages (ranking first in Italy, second in Spain, where sizable expat communities have settled).14)https://prezenta.roaep.ro/parlamentare06122020/abroad-pv-final. Inland, the percentage was clearly lower, 9,17%, https://prezenta.roaep.ro/parlamentare06122020/romania-pv-final This tendency was also visible during a 2018 ‘referendum for the family’, a confirmatory referendum to approve an amendment to Art. 48, restricting the definition of marriage to heterosexual unions. Romanians abroad were percentage-wise much more interested in the poll than inland voters, so that the home country could be spared the ‘decay’ of the Western societies in which they now lived.

Furthermore, and related, whereas liberal attention is turned to Poland and Hungary, many new EU member states that appear stable (not ‘populist’) are so only apparently and at a high deferred cost. In Mr. Krastev’s own country, Bulgaria, the EPP propped against all odds the Borisov Government, while the Commission wanted in 2019 to lift the CVM conditionality on account of progresses allegedly made in the fight against organised crime, corruption and in the field of judicial reforms.15)“The Commission considers that the progress made by Bulgaria under the CVM is sufficient to meet Bulgaria’s commitments made at the time of its accession to the EU”, https://ec.europa.eu/commission/presscorner/detail/en/IP_19_6136. The full report can be accessed at https://ec.europa.eu/info/sites/default/files/progress-report-bulgaria-2019-com-2019-498_en.pdf This happened months before massive demonstrations erupted once it became public knowledge that the leader of a splinter party supporting the government had appropriated a portion of the public beach and after photographs were leaked of the Prime Minister sleeping next to a gun, a drawer-full of 500-euro bill wads, and a few scattered gold ingots.16)https://www.euractiv.com/section/justice-home-affairs/news/epp-chief-tusk-borissov-confessed-to-me-he-made-obvious-mistakes/ During Mr. Borisov’s reign in office (with short interruptions, from 2009 until 2021), the inequality index peaked to over 40, the highest in the EU.17)https://data.worldbank.org/indicator/SI.POV.GINI?locations=BG If leaks of mafia-style scenery and ensuing summer-long demonstrations are needed for an EPP-affiliated local party boss to be finally allowed to fall, should this not raise broader questions about the state of democracy in the EU-27? In Poland for instance (Hungary, admittedly, is an outlier) the current government lowered the GINI index considerably through transfers to families, which may explain why it garners votes much better than its opposition to migration. The anti-gay rhetoric is surely despicable and the Special Chamber has been a rightful target for EU sanctions. It is however worth pondering whether narratives should not be adjusted accordingly, to consider the full spectrum of considerations bearing on domestic political conflicts18)As regards Poland, Joseph Weiler (as often) is the lone but all the more commendable exception in recent legal doctrine. Joseph H.H. Weiler, Not on Bread Alone Doth Man Liveth (Deut. 8:3; Mat. 4:4): Some Iconoclastic Views on Populism, Democracy, the Rule of Law and the Polish Circumstance, in von Bogdandy, A., Bogdanowicz, P., Canor, I., Grabenwarter, C., Taborowski, M., Schmidt, M. (Eds.), Defending Checks and Balances in EU Member States: Taking Stock of Europe’s Actions (Heidelberg: Springer, 2021), pp. 3-13. (additional psychology patients, additional facts in the psychology reports).

III. Scheming Legal Elites

Cristina Parau, a research fellow at Wolfson College, has written a book well-worth including in this mix for two reasons. First, as a political scientist interested in the judiciary and evolving judicial organization standards and patterns, she brings a perspective that lawyers, even legal sociologists, sometimes lack. Jurists are inured by their specific training to needful fictions of objectivity (positivistic variations on Montesquieu’s ‘mouthpiece of the law’). Consequently, they tend all too often to either ignore grand narratives, taking solace in the minutiae of juristic doctrine or (upon leaving this comfort zone) may easily collapse into ideology with a legal twist or veneer. Second, Parau has written a novel argument on juridification, a book-length story about the development and entrenchment of transnational legal/judicial elites via network socialization. A constitutional scholar seizes upon the volume with great expectations.

Parau identifies a genuine problem, namely, the appetite at the level of international bodies to rely on excessively counter-majoritarian, standardized reform blueprints to address peripheral modernization (such as judicial councils or anticorruption policies). This tendency results from cross-hybridization of standards within pools of collaborative supranational entities of various kinds, from private to public, from decisional to consultative, and often enough within homogenous groups of experts. The ensuing drive to bounce back and forth soft law standards in order to reach solutions is not without perils, for instance in terms of legal certainty (i.e., rule of law).19)“Recommendations, after being cited as authority in the case law of a supranational court with jurisdiction over the CoE’s members -essentially all the nations of Europe- do not remain mere recommendations. What is more, citation of the Network’s norms feeds back into the discourses of transnational entrepreneurs who created them, a ubiquity and self-referentiality that is apt to make them hegemonic.” (Parau, at p. 145). Soft law (good practice codes, recommendations, and opinions) is more easily instrumentalized than the instruments of traditional, hard international or supranational law. In the fight with populism, real (Hungary and Poland) or discursively contrived (Romania), the process has naturally been accelerated.20)D Kosař, K Šipulová (2018) The Strasbourg Court Meets Abusive Constitutionalism: Baka v. Hungary and the Rule of Law. Hague J Rule Law 10:83–110. At the level of international courts, strategic departures from doctrine propped on soft law cherry-picking may win a counter-populist battle here and there but could very well lose the war (credibility, stability of the jurisprudence, consistency of concepts and institutions that allows us to coexist and coordinate rationally). It is also in principle true that institutional independence, domestic and international, must be correlated with legitimacy, accountability, and procedural rigour. A body of literature going back to the post-New Deal analyses of the regulatory commissions exists, primarily in political science, dwelling on the pathologies of institutional independence from majoritarian politics. Outside the paradigmatic cases of independent courts and banks, autonomy may lead to ‘capture’, ‘ossification’, ‘tunnel vision’, etc.21)Marver H. Bernstein, Regulating Business by Independent Commission (Princeton, N.J.: Princeton University Press, 1955). Moreover, even if all public entities, domestic and international, are created on a legal basis, the longer the chain of delegation is stretched, the more, to use Parau’s words “the chain of accountability is strung out to the point of superstition that runs from appointees to appointees back to those voters who bother to show up to infrequently period elections and still less frequent referendums” (p. 24). Balance is needed always in all forms of constitutionalism.

Balance and objectivity are also needed in academic writing. What could have been an excellent system-theoretical analysis of ‘competence creeps’ and undue standardization determined by structural institutional and contextual limitations turns quickly into a rant against legal elites in cahoots to destroy democracy. According to the author’s argument, a Network of lawyers (capitalized in text) wants to impose a Template of judicial activism and in the process empower itself at the expense of ‘We The People’ (‘The network consensus targets governance per se, instead of taking it for granted, as the dairy lobby does.’, at p. 105). Networking happens through “enculturation” of transnational elites and “reverse nurturing” (p. 20) of younger generations of judges. Thusly ‘nurtured’ judges forget European traditions of judicial self-restraint and adopt the activist mores and proclivities of the Network. On the basis of Parau’s considerations on institutional judicial training (p. 264, ff), the reader could even surmise that the Network corrupts the judicial youth. Meanwhile, the Template is feverishly hammered and expanded on in free-range international bodies (among these, “the Venice Commission looms over the landscape like a promontory”), while the elected branches acquiesce to aggressive elite submission (political bodies are, throughout the volume, ‘dragooned’, ‘injunctured’, ‘superintended’ into ‘fealty’ by the Network).

Once this questionable methodological point of ingress is chosen, the author collapses into, euphemistically put, strange ideological bedfellowships. The Orbán Constitution is, one reads with surprise, “an ethical alloy of robustly justifiable reforms curbing the heedless, over-empowered Hungarian Constitutional Court and Judicial Council, immixed with the usual notorious court-packing” (p. 148). Former MEP József Szájer, of recent notoriety for other exploits, is presented on page 115 as “Fidesz leader, constitution drafter, and Vice-Chair of the European People’s Party Group in the European Parliament” and favourably cited with the remark: “even Stalin had given more time for the defence of the short trials for their own enemies than what we had [in EP hearings]”. On pp. 148-149, Mr. Szájer resurfaces, now as “Vice Chair of the European People’s Party in the European Parliament and chief architect of the Fundamental Law”, called in defence of the ‘ethical alloy’ “immixed with the usual, notorious court-packing.” In the same vein, pre-accession requests made by the EU Commission to Croatia to surrender suspected war criminals to the ICC prompt the author to ponder “how a few remote bureaucrats should be capable of overriding even so passionate and unifying current as patriotism in war.” (p. 146). If such are the components of ‘robustly justifiable’ and ‘robustly democratic’ ‘ethical alloys’ and if this were the only option at hand, one would be better off trying one’s luck with the Network.

IV. A Return to Innocence?

Authoritarian constitutionalism is a recognizable concept.22)E.g., Turkuler Isiksel, Between text and context: Turkey’s tradition of authoritarian constitutionalism, International Journal of Constitutional Law, Volume 11, Issue 3, July 2013, Pages 702–726, https://doi.org/10.1093/icon/mot024 The notion of ‘authoritarian liberalism’, used by Michael Wilkinson, a law professor with the LSE, appears on its face oxymoronic. Surely, liberalism is precisely the opposite of authoritarianism? As the author explains it, the term seeks to capture “…a conjunction of political authoritarianism and economic liberalism. To reduce it to its most basic formulation, it captures the phenomenon of a liberalism that is pursued by authoritarian means, in ways that avoid robust democratic accountability. It is liberal in the sense that it depoliticizes the economy, naturalizes inequalities, and values markets, competition, and private ownership” (p. 3).

According to Wilkinson, post-war constitutionalism was dominated by a fear of majoritarian solutions, as expressed in the well-known instruments of ‘militant democracy’. This fear was predicated upon the idea, fallacious according to him, that fascism and National Socialism were the products of untethered democracy. In reality, argues the author, both forms of totalitarianism arose out of voter suppression and bureaucratic/technocratic elite solutions targeting in particular the left, ergo from not enough democracy. This paradigm led to a type of constitutionalism that is ‘positivised, de-politicized, individualized, and legalized’ and which ‘[leaves] political sovereignty to one side’ (p. 90). The setting, which originated in post-WWII Western constitutionalism, was heaved afterwards and entrenched at the supranational layer in the EC/EU, where its problems are multiplied exponentially. Constitution-drafters and EC-creators chose yet again and misguidedly, to use the main theoretical protagonists in Wilkinson’s introductory part on Weimar, a combination of Schmitt and Kelsen over Heller. The analysis of Weimar as a prequel to post-WWII evolutions follows an argument that, in a different form and context, was early on pursued by Renato Cristi.23)Renato Cristi, Carl Schmitt and Authoritarian Liberalism, Cardiff, University of Wales Press, 1988. The latter (referenced in Wilkinson’s book to this effect) built on the implications of Schmitt’s Starker Staat, gesunde Wirtschaft 1932 lecture,24)https://www.duncker-humblot.de/_files_media/leseproben/9783428474714.pdf to argue that free markets and political oppressiveness can very easily coexist, producing forms of authoritarian liberalism.

Wilkinson’s argument is at its best in the analysis of the way in which, in his view, the EU turned progressively into a project of liberal authoritarianism that systematically values disembedded markets over equality and collective freedom. Elites feature prominently in this book as well, albeit (mercifully) they are expertise- and class-, rather than conspiratorially-connoted. In this vein, Wilhelm Röpke, one of the ideological fathers of the ethos that generated both the German Economic Miracle and its continuation in the Common Market project, is cited with the assertion (p. 92) that “the excess of sovereignty should be abolished instead of being transferred to a higher political and geographical unit.” There can be too much of a good point however. As Wilkinson impugns (p. 270) across the board post-WW II “elite-led projects of constitutionalization [in Western Europe]”, one may reasonably counter with the question: ‘Are there, historically speaking, any other kinds?’ All normative liberal constitutions were elite-led; even Gramsci’s ‘organic intellectuals’ are elites. There has been thus far no form of constitution-making that is democratic in the sense that masses take part in shaping it.25)Pragmatism seems to be the best course of action in constitution-making as well as change. See Ginsburg, Transformational Authoritarian Constitutions-The Case of Chile in Ginsburg and Huq, From Parchment to Practice-Implementing New Constitutions (CUP, 2020). Attempts to bypass elites have generally failed, e.g., the Icelandic project. If one should mean that the public must be involved downstream (confirmatory referendum), this is not only unproblematic but salutary. Many of the constitutions Professor Wilkinson refers to were however subjected to approval referendums. Something else, not fully explained in the text, must therefore be understood by the term elite-led. There have however been elite-led evolutions, including elite-led reactions to mass movements and requirements, that succeeded in generating fragile and imperfect equilibriums between collective self-determination driven by the ‘impulse of equality’ (democracy) and relatively effective states constrained by substantive and procedural guarantees (rule of law).

Wilkinson is right to notice current tendencies that are problematic, such as the constitutionalist discourse that often hovers aloof above facts, with Europe used as ‘empty signifier’ (e.g., p. 143, speaking about “the increasing enthusiasm about the project in elite and academic circles”, generated by a ‘culture of total optimism’). Elite discourses are portrayed as being increasingly out of sync (p. 144) with growing post-Maastricht grassroots resistance to the project and a growing disconnect between rulers and ruled. Related, the overall description of the effects of the supranational ‘constitutionalization from above’ unmatched by democratization is convincing. Furthermore, the author points out, post-Lisbon integration has happened in an intergovernmental/technocratic gear, without even the rhetoric of constitutionalization. The fig-leaf discourse of supranational constitutionalism (implying democracy and recognizable forms of politics) has receded to the background, replaced with the new narrative of ‘the rule of law’. Many glosses on current developments are equally insightful, for instance the parallel between Tocqueville’s nobility and the evolution of political parties (p. 198), whose status increases just as they become more and more irrelevant.

Two shortcomings affect this engaging argument. First, while the author’s misgivings about the democratic deficit embedded in post-WWII constitutionalism are clear, it remains throughout the book somewhat obscure what his ideal baseline would be. What is the Golden Age? He appears to yearn for worker empowerment and self-determination (and more generally ‘emancipation from capitalism’ p. 34) yet also accuses at p. 134, citing Marcuse, the “inner and outer embourgeoisement of the working class” as a factor, among many, that led to Les Trente Glorieuses deradicalization (e.g., the abandonment, for instance, by the Italian PCI of class struggle and the dictatorship of the proletariat, p. 133). It is very difficult and probably ill-advised to liberate people from self-contentment or generalize across current societies the fervour of May Day demonstrations in Berlin-Kreuzberg. One reckons therefore that we should strive for a reasonable accommodation between market and solidarity, not for the rhetorical revival of notions such as the ‘dictatorship of the proletariat’. The latter, and here I speak also from personal experience, admittedly only under ‘actually existing Socialism’ (real existierender Sozialismus), oppresses and impoverishes workers and elites alike. Second, and more importantly, the volume bears on a Union of 27 member states, yet is written almost as if 11 of them had not existed. There are only cursory references to the CEE countries and little attempt to integrate the problems of the periphery in the general Westernized narrative. Wilkinson pays for example homage (p. 191) to the routinized mainstream analysis of Laval and Viking, as a “Lochner moment” that diminished solidarity. One wonders however if, in a book written from a left perspective, the author should not try to show some solidarity to the Latvian posted workers (Laval) or to Estonian sailors (Viking). The argument on Laval/Viking could be (but it is not made in this form) that collective action should be transnationalized (this raises all sorts of complexities but has the benefit of consistency). If the assumption is that solidarity can only be practiced in homogenous Western settings (the ‘inner six’? the ‘northern core’?), inferences ought to be frankly and openly drawn. If the point is, alternatively, that solidarity can only be implemented in the enclosures of the nation-state, that is yet another standpoint (economic nationalism), which can be but is not necessarily left-leaning. If the implication of the latter point is that states can be islands nowadays and resist globalization forces, while coordinating independently to address cross-border effects such as climate change or migration, that is also a different matter (namely, wishful thinking, even for Britain). With all the caveats in the discussion above, on Krastev and Holmes, EU membership has helped former communist countries, for the longest time, to reach levels of prosperity and stability unhoped for in the 1990s. Yes, class divisions resurfaced lately and it is crucial that pathological tilts to the right be addressed (for many reasons, including purely instrumental ones: long-term growth and political stability). Yes, the state-building preparing the Big Bang of 2004 and the smaller replicas of 2007 and 2013 proceeded in the fashion of ‘bureaucratic Caesarism’ (p. 263, 227) implementing the “Lisbon geo-constitutional fudge” (p. 212). The Commission’s misadventures with implementing rule of law in Bulgaria, referred to above, are relevant and revealing in this sense. Such pathologies should however be balanced and discounted against other facts. The GDP of Romania has grown fivefold in the trail of the accession, meaning that millions could be lifted out of poverty, so that now one can even pose the question of redistribution or better allocation of resources. No alternative scenario can be imagined in which the CEE member states could have achieved this on their own. The author recognizes the overhanging dilemmas but relegates to an illuminating footnote what should have arguably been a central concern of the volume.26)Pp. 11-12, Fn 54. “The implication is not, it should be stressed, that leaving the EU or the eurozone would lift the material constraints on the democratic political process. Constraints would remain, not least the financial markets and geopolitical pressures that exist in a state system of radically unequal units. Neither would leaving the EU necessarily lead to the re-democratization of the economy; it may simply be controlled by a different set of elites. Whether to leave or remain in the EU is a complex political judgment and no more will be said about it here.”

Conclusion

The four volumes subject to this review essay address the liberal-constitutional question of our times in inevitably fragmentary but partly complementary ways. At its best, liberal constitutionalism of the Western normative ilk managed to achieve a synthesis between a reasonable degree of popular participation and economic homogeneity with a sensible degree of state subordination to substantive (fundamental rights) and procedural (separation of powers) guarantees. This is the kernel of truth that can be extrapolated especially from Michael Wilkinson’s argument but also partly from those pursued by Frankenberg and Parau. Increasing inequalities will pose a mortal threat to liberal constitutional orders, especially if they are papered over discursively and naturalized rather than addressed properly, by redistributive means. In the particular context of the EU, trivializing concerns about democratic deficits –“le grand soir democratique”, in Jan-Werner Mueller’s words27)Jan-Werner Müller, Protecting the Rule of law (and Democracy!) in the EU: The Idea of a Copenhagen Commission, in Closa and Kochenov (eds.), Reinforcing Rule of Law Oversight in the European Union (CUP, 2016), pp. 206-224, at 210. — that can be more or less deferred or side-lined until populism is vanquished, is a widespread position that has started to outlive its epistemological welcome. No society can control social exclusions, once they are too deep, other than by more or less repressive solutions. Such solutions have historically ranged on a civilizational continuum from the “autocracy tempered by assassination” (as J.R. Seeley quipped about the Russian Empire), through the “aristocracy tempered by riots” (as Lewis Namier famously described England in the 18th century), to the upper-class order tempered by general acquiescence in social hierarchies and conventions (Walter Bagehot’s 19th century Victorian constitutionalism). Even though all managed social disparities and discontent in their own specific ways, none of these three settings can be described as liberal-constitutional according to the codified representations we have inherited from the second half of the twentieth century.

As the constitutive elements of constitutionalism drifted apart, some have started to understand the liberal state as meaning exclusively legal guarantees and counter-majoritarian solutions from above (as argued by Parau and also by Wilkinson), whereas the populists subject to Krastev and Holmes’s scrutiny misunderstand democracy to mean more or less naked political power (whatever the majority of the day dictates). Populism (as Frankenberg points out) is a reductionist shorthand that does not showcase properly the full spectrum of current threats to the liberal-constitutional paradigm.

How the splinters can be practically reunited as a coherent whole is hard to fathom and perhaps outside the reach of scholarship. Attempts to identify the deeper nature and causes of the current perplexities must however be made, including attempts to reach across social(ization) and ideological aisles and confront rational counterarguments in good faith.

References

References
1 Art. 54 (2): Citizens holding public offices, as well as the military are liable for the loyal fulfilment of the obligations they are bound to, and shall, for this purpose, take the oath as requested by law, see https://www.presidency.ro/en/the-constitution-of-romania
2 So does, in principle, the German Basic Law. Art 14 (2) GG: Eigentum verpflichtet. Sein Gebrauch soll zugleich dem Wohle der Allgemeinheit dienen. See also the almost identical formulation in WRV, Art. 153: Eigentum verpflichtet. Sein Gebrauch soll zugleich Dienst sein für das Gemeine Beste.
3 And yet, Art. 18 GG [Forfeiture of basic rights]; Art. 21 GG [Party bans].
4 US Constitution, Art. I, Section 9. The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it. So do, in effect, most constitutions, in the idea, as plastically expressed by Justice Jackson, that they are not meant as suicide pacts. Also see, Art. 16, French Constitution of 1958.
5 Such as, perhaps, Art. 15, ECHR. https://www.echr.coe.int/documents/fs_derogation_eng.pdf. Art. 15 is replicated in numerous constitutions, as general reservation subject to proportionality review (e.g., Art. 53 Constitution of Romania-Restriction on the exercise of certain rights and freedoms).
6 At p. 168: “The end of the Cold War seriously reduced anti-oligarchic pressures inside the liberal West, since captalists no longer felt compelled to curry favor with workers in the hopes of reducing the appeal of a militarily powerful egalitarian alternative to the liberal order.”
7 Jan Komárek, Waiting for the existential revolution in Europe, International Journal of Constitutional Law, Volume 12, Issue 1, January 2014, Pages 190–212 (describing the suppression of social conflicts ‘in the name of Europe’ and using the Czech Republic as an example).
8 https://www.digi24.ro/stiri/actualitate/politica/citu-intrebat-daca-stie-cat-costa-o-franzela-nu-mananc-paine-dar-am-fost-la-piata-1628931
9 Unviversal male suffrage was introduced in 1871 for the Reichstag but state practices remained restrictive. The three-tiered census-based electoral system in Prussia (Dreiklassenwahlrecht, Three-Class-Suffrage) was called by liberals and socialists, ironically, Dreiklassenwahlunrecht (Three-Class-Suffrage-Injustice).
10 https://www.contributors.ro/despre-analfabeti-cu-drept-de-vot-si-votul-universal-asa-de-dragul-discutiei/
11 David Mitrany, Marx Against the Peasant: A Study in Social Dogmatism, Chapel Hill, University of North Carolina Press, 1951.
12 http://library.fes.de/pdf-files/bueros/bukarest/18052-20210623.pdf
13 https://www.dw.com/de/proteste-in-rumänien-die-diaspora-soll-es-richten/a-45017998 ; https://www.theguardian.com/commentisfree/2018/aug/22/romania-migrant-diaspora-protest-police-crackdown-corruption
14 https://prezenta.roaep.ro/parlamentare06122020/abroad-pv-final. Inland, the percentage was clearly lower, 9,17%, https://prezenta.roaep.ro/parlamentare06122020/romania-pv-final
15 “The Commission considers that the progress made by Bulgaria under the CVM is sufficient to meet Bulgaria’s commitments made at the time of its accession to the EU”, https://ec.europa.eu/commission/presscorner/detail/en/IP_19_6136. The full report can be accessed at https://ec.europa.eu/info/sites/default/files/progress-report-bulgaria-2019-com-2019-498_en.pdf
16 https://www.euractiv.com/section/justice-home-affairs/news/epp-chief-tusk-borissov-confessed-to-me-he-made-obvious-mistakes/
17 https://data.worldbank.org/indicator/SI.POV.GINI?locations=BG
18 As regards Poland, Joseph Weiler (as often) is the lone but all the more commendable exception in recent legal doctrine. Joseph H.H. Weiler, Not on Bread Alone Doth Man Liveth (Deut. 8:3; Mat. 4:4): Some Iconoclastic Views on Populism, Democracy, the Rule of Law and the Polish Circumstance, in von Bogdandy, A., Bogdanowicz, P., Canor, I., Grabenwarter, C., Taborowski, M., Schmidt, M. (Eds.), Defending Checks and Balances in EU Member States: Taking Stock of Europe’s Actions (Heidelberg: Springer, 2021), pp. 3-13.
19 “Recommendations, after being cited as authority in the case law of a supranational court with jurisdiction over the CoE’s members -essentially all the nations of Europe- do not remain mere recommendations. What is more, citation of the Network’s norms feeds back into the discourses of transnational entrepreneurs who created them, a ubiquity and self-referentiality that is apt to make them hegemonic.” (Parau, at p. 145).
20 D Kosař, K Šipulová (2018) The Strasbourg Court Meets Abusive Constitutionalism: Baka v. Hungary and the Rule of Law. Hague J Rule Law 10:83–110.
21 Marver H. Bernstein, Regulating Business by Independent Commission (Princeton, N.J.: Princeton University Press, 1955).
22 E.g., Turkuler Isiksel, Between text and context: Turkey’s tradition of authoritarian constitutionalism, International Journal of Constitutional Law, Volume 11, Issue 3, July 2013, Pages 702–726, https://doi.org/10.1093/icon/mot024
23 Renato Cristi, Carl Schmitt and Authoritarian Liberalism, Cardiff, University of Wales Press, 1988.
24 https://www.duncker-humblot.de/_files_media/leseproben/9783428474714.pdf
25 Pragmatism seems to be the best course of action in constitution-making as well as change. See Ginsburg, Transformational Authoritarian Constitutions-The Case of Chile in Ginsburg and Huq, From Parchment to Practice-Implementing New Constitutions (CUP, 2020). Attempts to bypass elites have generally failed, e.g., the Icelandic project. If one should mean that the public must be involved downstream (confirmatory referendum), this is not only unproblematic but salutary. Many of the constitutions Professor Wilkinson refers to were however subjected to approval referendums. Something else, not fully explained in the text, must therefore be understood by the term elite-led.
26 Pp. 11-12, Fn 54. “The implication is not, it should be stressed, that leaving the EU or the eurozone would lift the material constraints on the democratic political process. Constraints would remain, not least the financial markets and geopolitical pressures that exist in a state system of radically unequal units. Neither would leaving the EU necessarily lead to the re-democratization of the economy; it may simply be controlled by a different set of elites. Whether to leave or remain in the EU is a complex political judgment and no more will be said about it here.”
27 Jan-Werner Müller, Protecting the Rule of law (and Democracy!) in the EU: The Idea of a Copenhagen Commission, in Closa and Kochenov (eds.), Reinforcing Rule of Law Oversight in the European Union (CUP, 2016), pp. 206-224, at 210.

SUGGESTED CITATION  Iancu, Bogdan: “Not What We Were Promised”: Four Answers to an Insoluble Question  , VerfBlog, 2021/9/17, https://verfassungsblog.de/not-what-we-were-promised/, DOI: 10.17176/20210917-195818-0.

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