Hungarian Prime Minister Viktor Orbán holds a speech at the parliament in Budapest on April 25, 2016. Photo: ATTILA KISBENEDEK / AFP / picturedesk.com
Populism and the rule of law have had renewed careers in recent decades—the rule of law in the last three, populism over the last one. Both have gone global and they have come to compete in many of the same spaces. This article examines their relationships. It concludes that contemporary populist regimes subject the rule of law to systematic abuse, vulgar and refined. Interestingly, a favored vehicle for both varieties of abuse of the rule of law is law.
In 1918, Vladimir Lenin wrote, adamantly and unapologetically, that his government was “based directly upon force and unrestricted by any laws.” So it was and so it remained for a long time. Lenin was not alone in saying things like this and in doing as he said. Vladimir Putin, a lesser being but a filial descendant of Lenin in many ways, thinks and acts similarly. But when it comes to law, even he tried to pretend otherwise for a while, and these days lots of other regime leaders do too. Among them are the leaders of contemporary authoritarian populist regimes, such as those of Hungary, India, Poland, and several other countries in Asia and Latin America. And it is not just pretence: law does matter in the ways they rule.
Many of these regimes insist that they are true upholders of the rule of law, which must be rescued from those who have kidnapped it. They claim it is a victim of the elite “castes” who occupy legal institutions and abuse them for their own interests, and those of kindred parasites, at the expense of the real nation. These sinister, cosmopolitan, and educated urbanites need to be expunged or at least put in their lowly place, and the law itself brought to health, re-purposed, and re-staffed with people who know, or can be taught, how to respond appropriately to the people’s true interests and demands.
Constitutionalism and the rule of law might, then, seem well served by these regimes, which treat the law with a seriousness that it has not always enjoyed. For some time, that seemed to be the hope of the European Commission in its endless “dialogues” with interlocutors who did not appear to be listening or understanding. Only gradually has it come to understand that the leaders of Hungary and Poland have no aural or epistemological problems at all. They hear what they are being told about the rule of law and understand it quite well. They simply have other plans that do rely on law but have no use for the rule of law.
The rule of law is much and contentiously discussed. I have written extensively about it and these discussions elsewhere. Here it is enough to stress that its raison d’ȇtre, what makes it distinctive and precious, is to temper the exercise of power so that power is not available for arbitrary abuse. Not necessarily to weaken power, but to organize and channel it so that its exercise can be controlled, is relatively predictable, respects the rights of those it might bear on, and operates in ways justifiably related to its ostensible ends. Nowhere is perfect, of course, and the rule of law comes in many different shapes, sizes, and degrees, but where this does not routinely occur you might have a lot of law but not the rule of law.
This, however, is as far as can be from the ways of modern authoritarian populists with law. Where the rule of law calls for key powers to be checked, balanced, and separated, they seek to consolidate and concentrate them in their hands. Where it depends on substantial independence of power-adjudicators from power-wielders, such populists increase their dependence. Where one mediates power and calls for a patient filtering of decisions through institutions, the other seeks to make it all personal, unmediated, and unconstrained: it endorses an instantaneous quasi or pseudo democracy in which a decision by the leader may become law the next day.
It is not, however, always obvious that anything particularly sinister is happening. Institutions are “deflated rather than demolished by populist authoritarians.” The rule of law is typically brought down by “a thousand cuts,” many of them small and often unseen, while the cumulative result is blood-letting of its ideals and principles, on a torrential scale. All done with the active assistance of law.
Europeans who have watched the cat-and-mouse games played between the European Commission and lawyers representing Poland and Hungary, or who have witnessed Hungary’s Prime Minister Viktor Orbán’s self-vaunted “peacock dances” in Brussels might have a sense of how these legal games are played. Apparently earnest and technical points of law are raised by regime lawyers: about interpretation, inclusion or exclusion of this or that provision, sacking and packing, dismantling or inventing, this or that court, “disciplining” this or that disobedient judge—all replete with poker-faced legal argumentation, typically of a highly formalistic sort. If critics allege that an institutional innovation is intended, say, to threaten judicial independence from the executive, the hunt will be on for some ostensible, context-free, in-any-way-similar-looking arrangement, cherry-picked from Liechtenstein, Luxembourg, or anywhere that might serve. That these comparisons and purported borrowings are radically superficial, selective, decontextualized, and hostile to the rule of law is rarely obvious to laypersons and never, naturally enough, emphasized by their sponsors.
Where the point of the rule of law is undermined in such ways, what we are seeing is an often refined form of legal abuse, which is something very different from defiance or ignorance or rejection of the law. Of course, there is a lot of straightforward vulgar abuse and gaslighting as well: accusations and insults hurled, constantly and from on high, at the “castes” of judges and lawyers and any who would support them. They are intimidated, disciplined and they are sued (by lawyers appointed precisely for such purposes). But in another sense abuse is an art, a particular sort of chicanery well recognized by the law, whereby one pretends fealty to formal rules to achieve purposes alien to their underlying (and often unwritten) aims. In the populist rendition of this art, law is used precisely so that the purpose and the fundamental principles of the rule of law can be abused.
Moreover, because that purpose and those principles have no weight with these leaders, they can at one moment be constitutional pedants when it serves their ends, and at another be “constitutionally shameless” when pedantry does not work for them. So, Fidesz with its constitutional majority in Hungary can afford more pedantry than Poland’s Law and Justice (PiS), which, without such a majority, needs to cheat more often and more obviously. Indeed cheating, as examined in András Sajó’s excellent recent book, Ruling by Cheating, has now become virtually a technical term, so apt is it to describe the contemporary legalistic abuse of the rule of law. Constitutional courts are gutted, neutralized, packed, and then mobilized for the regime, all in the name of court reform and the rule of law. So use is elided with abuse, and the principles of the rule of law are deliberately and systematically trashed, in its name. This is a particularly insidious mode of assault that is often very effective.
As a result, a new form of legal scholarship, a kind of branch of forensic pathology, is emerging. It investigates what has variously been called abusive constitutionalism, stealth authoritarianism, constitutional coups, autocratic legalism, abuse of the constitution, or twisting and turning of the rule of law. The forms these pathologies take are interesting and various, and I commend them to those with a taste for dark arts. Many of them are analyzed as they occur under many new populist regimes in a volume co-edited by Adam Czarnota, Wojciech Sadurski, and me. I commend that too.
See, for example, Martin Krygier, “The Rule of Law: Pasts, Presents, and Two Possible Futures,” Annual Review of Law & Social Science, 12, 2016, 199–229.
Wojciech Sadurski, A Pandemic of Populists, Cambridge University Press, 2022, 54.
Tarunabh Khaitan, “Killing a Constitution with a Thousand Cuts: Executive Aggrandizement and Party-state Fusion in India,” Law & Ethics of Human Rights 14(1), 2020, 49–95
Rosalind Dixon and David Landau, Abusive Constitutional Borrowing. Legal globalization and the subversion of liberal democracy, Oxford University Press, 2021.
See Gianluigi Palombella, ‘The Abuse of the Rule of Law,’ Hague Journal on the Rule of Law, 12, 2020, 387-397.
Khaitan, n.2, 45
Martin Krygier, Adam Czarnota, and Wojciech Sadurski, eds., Anti-Constitutional Populism, Cambridge University Press, 2022. See also Sadurski, A Pandemic of Populists.
Martin Krygier is Gordon Samuels Professor of Law and Social Theory at UNSW Sydney and senior fesearch fellow at the CEU Democracy Institute, Budapest. He was a guest of the IWM in 2022.
