Populist Challenges to Constitutional Interpretation in Europe and Beyond

Has the populist wave changed constitutional interpretation?

July 15, 2021 10:59 AM
Fruzsina Gárdos-Orosz
(Centre for Social Sciences, Budapest)
Zoltán Szente
(Centre for Social Sciences, Budapest)

By Fruzsina Gárdos-Orosz* and Zoltán Szente**

Political science has continuously explored populism in the past years. Legal scholarship has tried catching up. From that perspective, populism is viewed through the lenses of constitutionalism in a normative way, which brought about the term ‘populist constitutionalism’. It embraces constitutional projects of political parties and ideologies claiming for comprehensive institutional reforms. Such changes aim at shifting the balance of power from judicial bodies to popular representation. It does so by dismantling institutional procedures and guarantees in rule of law systems that are perceived as obstacles for the realisation of the ‘true’ popular will. Yet, our empirical research across several countries reveals that the complexity of populism does not fit within the boundaries of that idea. Legal practice varies, and populist constitutionalism fails to capture reality.

Our results have come out in the new book “Populist Challenges to Constitutional Interpretation in Europe and Beyond” (download below), recently published open access with the Routledge series on Comparative Constitutional Change. The publication we edited features contributions from renowned scholars such as Mark Tushnet (Professor of Law, Harvard Law School), Mark A. Graber (Professor at the University of Maryland), Martin Loughlin (Professor of Public Law at the London School of Economics and Political Science), Pablo Riberi (Professor of Constitutional Law at the School of Law of the National University of Cordoba) and several others in 18 chapters. It is an essential reading for students, academics, and researchers working in constitutional law and politics. An international conference co-organised by DEMOS, held in Budapest in December 2019, made a significant contribution to this volume.

In this research, we assumed that populist actors, if not strong enough to achieve formal constitutional changes, are likely to want to influence the way the constitution is interpreted by constitutional and other high courts to reach their political objectives. This turned out to be a right assumption. According to all indications, the populist agenda influences constitutional development not only when populists are in power but also when they are in the opposition. We also assumed that if ‘populist constitutionalism’ is an analytically useful tool, the constitutional adjudication and the methods of constitutional interpretation must be its crucial domain. Not really.

Looking for patterns in the constitutional changes prescribed by the idea of populist constitutionalism in 10 countries in Europe and other ones in the Americas, we found great variance no matter how populism is present in a national political system: constitutional courts, which ultimately decide about the content of constitutions, behave very differently in the assessed countries (Greece, Spain, the UK, the Czech Republic, Hungary, Poland, Croatia, Italy, Romania, Poland, the US, and Latin America).

When supporting populist aspirations, constitutional court reviews evoked sometimes dormant constitutional provisions or invented new substantive concepts (or in many cases used classic methods of interpretation in surprisingly new ways). The attitudes towards activism and deference represented an important dimension of judicial strategies, as the same methods were applied extensively, or moderately in different cases for different goals.

As real constitutional moments occur only rarely (most prominently in Hungary), and formal constitutional changes often lack the appropriate majority support, in such circumstances the use and importance of informal tools and procedures to change the constitutional design increases. Constitutional and other high courts play a crucial role, because if new methods are used to reveal the meaning of a constitutional text, or certain substantive constitutional concepts are reinterpreted, significant reforms can be performed without the need of amending the constitution.

Thus, constitutional courts, by interpretation and by their jurisprudence, can also change the constitutional setting. Examples in this case are Poland and Greece, whose constitutional courts supported populist aspirations. To resist it, Spain and Croatia, for instance, resorted to non-classic, methodologically surprising constitutional interpretations. But in other cases, courts just stayed out of the political battles, such as in Austria, Italy, and Romania.

Those cases help debunk the doctrinal concept of populist constitutionalism in this regard. No substantive theory or specific mode of constitutional interpretation can be ascribed to populist aspirations, and populist constitutionalism does not, in effect, have a special constitutional toolbox. European strategies change more according to the constitutional culture and the actual constitutional settings of a given state. It also changes based on the nature and strength of the pressure and on the composition of the high courts for constitutional review. As a political phenomenon, populism can achieve constitutional changes by constitutional courts, but does not do so by developing new interpretation theories or in any particular legal doctrinal way. When populism captures the courts, or when courts become populist, their behaviour can be described rather in political than in legal terms. The rule of law becomes limited in these situations.

About the book

Title: Populist Challenges to Constitutional Interpretation in Europe and Beyond
Editors: Fruzsina Gárdos-Orosz and Zoltán Szente (Centre for Social Sciences, Budapest).
Publication date: May 2021.
Publisher: Routledge, London.
Topics: Law, Politics, and International Relations.
Number of pages: 346.
Download book chapters here.

* Fruzsina Gárdos-Orosz is Director and Senior Research fellow of the Institute for Legal Studies, Centre for Social Sciences, Hungary, and also Associate Professor in Constitutional Law at the ELTE Law School in Budapest, Hungary. She is a co-chair of the IACL Research Group on Constitutional Interpretation and a DEMOS H2020 member.

**Zoltán Szente is Professor of Law at the Department of Constitutional Law, National University of Public Service, and he is a Research Professor at the Institute for Legal Studies, Centre for Social Sciences of the Hungarian Academy of Sciences, Budapest. He is a co-chair of the IACL Research Group on Constitutional Interpretation and a DEMOS H2020 member.

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