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1102 Constitutional populism or new wave of constitutionalism. Socio-theoretical and comparative perspectives I

WG Sociology of Constitution

Room: B2.04

 

In Eastern and Western Europe, Asia, the Americas, Africa, populist parties have recently challenged traditional ones, and in several countries, they have overwhelmed them. Contemporary waves of populism have taken many people by surprise, particularly since they so soon follow the much-lauded triumph, as it seemed, of third wave democracies, in some of the places where they had seemed to have gained their greatest successes. The latest wave is so widespread and consequential that it has begun to generate a burgeoning literature particularly in social and political science, and to a much lesser extent in constitutional studies, often drawing on comparisons with earlier forms of populism and other sorts of pre-and anti-democratic authoritarianism. However, the new populisms have distinctive relationships with, and elements of, democracy not shared by traditional authoritarian regimes, yet unlike the forms of democracy within which many of them were spawned, they are involved in changing liberal constitutional practices, and institutions. Unlike earlier populisms, the new populists in power engage closely with law, principles of the rule of law and liberal constitutionalism. It is those engagements that the proposed panel seeks to understand. More specifically, we seek to understand the deliberate change of constitutional institutions that have taken place in some of the most prominent of these new democracies around the world. The panels will focus on the interrelations between modern forms of populism and liberal democracy, authoritarianism, politics, and law, particularly constitutional law. Our specific focus is on a selection of countries that were in the forefront of the ‘third wave’ of democratic transformation.

  

Chair:  Michał Paździora | Centre of Legal Education and Social Theory (University of Wrocław)

Adam Czarnota | University of New South Wales 

Constitutional populism in CEE or constitutional correction?

 

Abstract

 

The paper will investigate recent constitutional changes in former communist Central-Eastern Europe. The author will discuss the issue of rising constitutional populism in CEE in the background of constitutional traditions and identities there. I argue that we witness necessary constitutional corrections to unreflective liberal constitutionalism adopted in the region after 1989.
I will also argue that CEE countries are just on the begging on their road to creation of its own version of constitutional identity which is not anty-liberal but not liberal but not fully liberal and is not populist as well. 

Michał Stambulski | Centre for Legal Education and Social Theory, Uniwersytet Wrocławski

Populist constitutionalism and neoauthoritarianism on the example of Poland

 

Abstract

 

Populist constitutionalism is based on supremacy of parliament and restriction of the judiciary. It seeks to exchange elites and redistribute capital. By doing so it is willing to rearrange constitutional institutions like the Constitutional Tribunal or National Justice Board. The problem is that populism blocks those institutions and does not create any alternative propositions. It can, however, force legal constitutionalism to self-critique that will move it closer to political constitutionalism. Nevertheless populist constitutionalism as a political and legal practice is supported by neoauthoritarianism, wchich can be understood as a relation between political power and its supporters. Neoauthoritarianism seems to be democratic fules that legitimes populist movements.
In my argumentation I will describe the characteristics of populist constitutionalism in Poland, reconstruct the critique of law and lawyers made by the Law and Justice party, finally, try to present the possible effects of populist critique and political practice.

Anna Sobaczewska | The Institute of Law Studies, Polish Academy of Sciences  
Constitutional moment theory in Polish reality - the consent, identity, and change of constitution

 

Full Paper

 

Abstract

 

Ackerman’s theory of constitutional moment draws our attention on issues of legitimacy and capacity to create new constitutional order, it also considers a problem of well-established division between constituted power and constituting power. Constitutional moment theory brings attractive, romantic vision of the Sovereign power - the problem is this moment could be recognized usually long time after it occurred.
This paper tries to look for traces such constitution-bringing period in last years Polish reality (in the context of other CEE countries). The aim is to answer could the four defined conditions of such moment (deep and definite will to transform, elaborated by political leaders agenda of changes, intense and dynamic popular deliberation, adopting constitutional changes in constitutional review) be identified and  if so - whether a political and social context of constitutional change demands broad consent explicitly expressed and constitutional identity.

Jack Meakin | University of Glasgow

Populism, Constitutional Change, and the Autonomist's Example

 

Abstract

 

This paper begins by considering the affinity and difference between populism and autonomous movements. I will argue that both are joined in a critique of the limits of the political in liberal democratic institutions, but they differ in their approaches to political change and proposed ends. This reveals two competing forms of political change. I suggest that both forms should be treated against the backdrop of a concern about political change in constitutionalism. I will focus upon the example of autonomy; I propose that a careful reading of their engagement with law reveals a distinctive conception of the relationship between political action and constitutional ordering. The survival of such movements challenges the conception that political difference is neutralised by law, and encourages a re-consideration of the role played by political agency in constitutional change. This will provide an opportunity to reflect further upon the approach to the political in populism and autonomous organising. 

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