Populism, Popular Sovereignty, and Public Reason

Acknowledgements

This edited volume presents select results of the 12^th Central and Eastern European Forum of Young Legal, Political and Social Theorists Conference, which took place in Vienna under extraordinary circumstances. Due to the COVID-19 pandemic, the original conference at the WU Vienna University of Economics and Business, scheduled for 16–17 April 2020, had to be postponed and plans for a later on-site or ‘hybrid’ conference had to be cancelled as well. Instead, the conference was hosted as an online event at WU Vienna University of Economics and Business, with participants tuning in from London to Istanbul and Krakow to Belgrade.

Given these extraordinary circumstances, we are greatly indebted to everyone who contributed to the success of the first ever digital CEE Forum conference. In particular, we would like to warmly thank Professor Renáta Uitz, who gave an inspiring keynote speech, ‘Confronting Constitutionalism’s New Normal,’ setting the scene for two days of fruitful exchange and reminding us of the responsibility that academics have, especially in times of crisis.

The editors would also like to thank Maria Manhardt and Heike Wiesner for their tireless efforts, patience and flexibility in preparing the conference(s) despite the often most adverse of circumstances. We are grateful for the financial support provided by Schoenherr Attorneys at Law. Last, but not least, we would like to thank Iryna Sauca for her great support in the preparation of this manuscript as well as Monika Bucha and Andrea Pfeffer for their invaluable assistance at various stages of this project.

Stefan Mayr, Andreas Orator
Vienna, August 2021

In its 12^th edition, the 2020 annual conference of the Central and Eastern European Forum of Young Legal, Political and Social Theorists (CEE Forum) was scheduled to premiere in Vienna. Falling victim to travel restrictions imposed due to the COVID-19 pandemic, it turned out to be a different premiere instead, the very first digital conference of the CEE Forum. 2020 also marked the 100^th anniversary of the Austrian Federal Constitution’s entry into force. Its drafting was heavily influenced by Hans Kelsen, who at the time, was himself a young legal, political, and social theorist in Vienna. His treatise The Essence and Value of Democracy¹ was first published in 1920 as well and we will address some of the ideas articulated in this intriguing text in our brief introduction on the conference’s main themes of populism, popular sovereignty, and public reason.

In the past decade, populist politics have been on the rise in Member States of the European Union in general and in Central and Eastern Europe in particular. This poses serious challenges to the ‘holy trinity’ of constitutionalism, i.e. democracy, the rule of law, and fundamental rights. It provokes theoretical discussions not only on democratic decay, the erosion of the rule of law, and the capturing of independent judiciaries, but also on the mere possibility of ‘populist constitutionalism.’²

With the re-emergence of populism, popular sovereignty seems to have resurfaced as a political category. Populists assert legitimacy based on popular sovereignty and majority rule,³ which they may use as a political argument to ←11 | 12→play off ‘democracy’ against courts and other non-majoritarian institutions, or even call into question the legitimacy of existing law tout court by asserting the primacy of the sovereign ‘people.’ Populism nourishes ‘legal resentment,’⁴ with law (and judges) standing in the way of popular sovereignty.⁵ It also calls into question previously widespread understandings of globalization and international cooperation. It appears to oppose the predominant free trade paradigm, thus delegitimizing growing concerns as regards the current state of global governance.

Finally, populism in an age of ‘post-truth’ is not only challenging technocratic rule, but also thwarting the democratic potential of deliberative discourse. It raises questions as regards the prospects of rational discourse in the presence of (populist) echo chambers, on strategies in post-truth environments that discard inconvenient facts as ‘fake news,’ and on the respective role of media and civil society.

Many of the issues discussed at the 2020 CEE Forum conference are embedded in and may be reflected on in light of a rich intellectual and constitutional history. With regard to contemporary populist challenges, Kelsen’s The Essence and Value of Democracy is of particular interest. This text has been characterized as ‘a sort of “mirror” in which contemporary societies can see themselves reflected in a way that opens up the possibility of assessing the state and quality of their own democratic institutions.’⁶ In our view, it offers valuable input for any discussion on populism, popular sovereignty and public reason. In the following paragraphs, we will address select aspects of Kelsen’s thought-provoking treatise on democracy, focusing on elements which seem particularly relevant in light of the contributions published in this book.

Let us take, for example, Kelsen’s grounding of democracy in the value of freedom as well as his emphasis on a necessary relativism and the role of compromise. They provide insights into fundamental tensions between populism and democracy.⁷ Similarly, Kelsen’s conception of majority rule and his support ←12 | 13→for representative democracy and political parties seem to connect well with debates on current explanatory approaches contrasting ‘democratic’ and ‘populist’ constitutionalism.⁸ Even a hundred years after the publication of the first edition of The Essence and Value of Democracy, Kelsen’s starting point, in a way, seems surprisingly familiar. He identifies democracy as a catchphrase that has not only begun to lose its precise meaning, but rather ‘has taken on diverse, and often contradictory, meanings.’⁹

For Kelsen, the idea of democracy is fundamentally rooted in the principle of freedom, understood as political or social freedom, akin to the concept of autonomy: ‘[I]‌f we must be ruled, then we only want to be ruled by ourselves.’¹⁰ However, he emphasizes that in an established democratic social order, the meaning of this freedom undergoes important changes as any individual is subject to the will of the majority and cannot withdraw from the social order. According to Kelsen, ‘[o]nly the alteration, the development, of the social order is practically in question.’¹¹ In this context, Kelsen argues that the meaning of freedom ‘has changed from the idea that the individual should be free from the state to the idea that he should be able to participate in that rule.’¹²

Against this background, for Kelsen the fact that democratic rule is based on the majority principle is rooted in the idea of freedom, not equality. The latter is considered an ‘essential postulate of democracy,’ but mainly in that ‘the greatest possible number of individuals should be free.’¹³ In theory, Kelsen writes, the principle of an absolute, not qualified, majority seems to lead to ‘the relatively greatest approximation of the idea of freedom.’¹⁴ Is Kelsen, thus, an early proponent of the ‘extreme majoritarianism’¹⁵ often associated with populist ideology? Clearly, the answer is no. In his treatment of the majority principle, Kelsen underlines the essential function of constitutionally guaranteed fundamental rights and freedoms for the protection of the minority, and – as a consequence – for the democratic social order writ large. In his view, the rule of the majority ‘not only presupposes, but actually recognizes and protects […] an ←13 | 14→opposition, i.e., the minority.’¹⁶ By requiring – typically – specific supermajorities for measures which infringe upon fundamental rights and freedoms, democratic constitutions provide an important means of ‘rational self-restraint’ in the parliamentary process.¹⁷ In this sense, fundamental rights and freedoms not only protect the individual from the state, but also protect the minority from a merely absolute majority.¹⁸ Moreover, insofar as measures infringing on such rights and freedoms require a qualified minority’s assent, Kelsen concludes that – under certain circumstances – the qualified majority principle represents an ‘even closer approximation of the idea of freedom.’¹⁹ Of course, this finding is subject to an important caveat, i.e. the existence of a qualified minority. Where a government commands a parliamentary supermajority, this protection of the minority may prove futile. A supermajority, however, does not give the government a carte blanche.²⁰

It is only in the final chapter of his treatise that Kelsen addresses the value of democracy explicitly. In our view, this chapter offers important insights into fundamental tensions between populism and democracy as ‘a form, a method for the creation of the social order.’²¹ For Kelsen, the conflict between democracy and autocracy boils down to a conflict between opposing worldviews, which he characterizes as the democratic ‘critical-relativistic’ and autocratic ‘metaphysical-absolutistic’ view.²²

In Kelsen’s view, the democratic disposition results from the basic epistemic assumption that absolute truth and/or absolute values are inaccessible to human cognition. Democracy offers a method to deal with the resulting pluralism, ensuring that any form of coercion has to be justified by the assent of (at least) the majority. An important corollary is that the minority must ‘not be rendered entirely without rights and itself can become the majority at any time.’²³

In this context, it should be noted that Kelsen draws a sharp line between the idea of democracy and the reality of practice of democracy, the blurring of which may lead to misunderstandings and confusion. For example, based on the transformation of the notion of freedom Kelsen argues that democracy has to be detached from liberalism and that ‘[e]‌ven with the limitless expansion of state power and, consequently, the complete loss of individual “freedom” and the negation of the liberal ideal, democracy is still possible as long as this state power is constituted by its subjects.’²⁴

With a view to populists in power branding their constitutional project as one of an ‘illiberal democracy,’ Kelsen’s remark at first glance seems uncomfortably apologetic and raises difficult questions. In our view, it has to be understood as an expression of Kelsen’s idea of democracy as an open process of contestation. In a pluralist society, the content or substance of the norms should result from the democratic process, but the procedure ‘in no way’ addresses the content of the democratically established state order. But would a complete loss of individual freedom really be compatible with Kelsen’s understanding of the reality of a democratic order? Given that Kelsen attaches such great structural importance to the existence of fundamental rights and freedoms as a means to protect the minority from the (merely absolute) majority, this seems quite unlikely. More importantly, from a Kelsenian perspective, illiberal democracy very likely qualifies as autocracy to begin with. From this perspective, the problem with an illiberal democracy lies at a very basic level, i.e., the insight that any kind of democracy presupposes political relativism as its worldview. Such relativism seems to be at odds with populists’ claims to representing the unified will of the (true) people as well as attempts to entrench their rule and disempower the opposition/minority.

While populist constitutionalism, democratic decay, or challenges to public reason are trends which are highly topical for recent developments in many parts of the globe, the 2020 CEE Forum conference brought together papers which also focus on their particularities for the CEE region.²⁵ The CEE Forum is a (sometimes only virtual) meeting place of young theorists from various fields, which results in a genuine multidisciplinary or, ideally, even interdisciplinary conference. It has always been the aim of the CEE Forum to allow for a broad spectrum ←15 | 16→of theoretical discourse in the CEE region: While some researchers focus on the impact of theoretical insights in particular national contexts, others address local problems in a comparative manner or in wider theoretical contexts.²⁶

Over almost two conference days, papers from the disciplines of law, political science, philosophy and economics were presented using theoretical, geographical, or judicial-institutional approaches, covering populism, popular sovereignty, and public reason, or its interrelationships, focusing on respective developments in the CEE region. To this added a number of papers not related to this year’s main theme in an open session, one of which is presented as the final contribution in this volume. This tenth CEE Forum Yearbook assembles selected contributions presented at the 2020 annual conference. In the first part of the book, we present five articles focusing on particular theoretical approaches, followed by a second section dealing with judicial politics. The third thematic part is dedicated to studies on particular polities. To this adds one contribution from the conference’s open section.

In addressing the critique of populist constitutionalism, Przemysław Tacik sheds light on myths and intellectual shortcuts that legal scholarship currently often relies on in an attempt to newly chart the boundaries between law and politics. He rejects the idea that the existing populisms in Europe are an expression of legal nihilism and cautions us not to lose sight of the politico-legal logics, which populism in power develops. Taking Hungary and Poland as examples of really existing populisms, Tacik points out the excess in populist legality, which results from the current politico-legal transformations.

Aydin Atilgan explores new facets of Ernst Fraenkel’s dual state concept with regard to today’s autocratic and populist polities. His comparative analysis of the cases of Russia and Turkey offers insights into the role and functions of law and legality in what can be considered new dual states. While highlighting important differences between these new dual states and their historical counterpart, Atilgan explains why Fraenkel’s theory should still be considered relevant today. Moreover, he argues that international law can play a crucial role when it comes to the defence of the rule of law in new dual states.

Katinka Tóth takes a law and literature approach to explore the bi-directional role of theatrical narratives in the contemporary democratic discourse. Based on an analysis of two contemporary adaptations of Heinrich von Kleist’s Michael Koolhaas as well as Ferdinand von Schirach’s Terror, she finds that theatrical ←16 | 17→narratives not only facilitate the audience’s perception of relevant problems but also ‘force’ the audience to engage in the discussion of the issues raised.