1202 Constitutional populism or new wave of constitutionalism. Socio-theoretical and comparative perspectives II

WG Sociology of Constitutions

Room: Auditório Mário MurteiraB2.04


(May be extended to the next time slot 5:30pm-7:15pm, same room)


Chair: Adam Czarnota | University of New South Wales

Samir Forić | Faculty of Political Science, University of Sarajevo

Marko Mrakovčić | Faculty of Law, University of Rijeka

Post-Yugoslavia, Continuous Populism and Constitutionalism





Both constitutionalism and populism share the concept of “the people” as their central category of reference. Even if their inherent ideas and values are contradictory, questions can be raised whether is it possible for them to function simultaneously in some political systems, namely those belonging to countries in “third wave” of democratic transformation? By focusing on former Yugoslavia countries and context of “post-Yugoslavia” as a region understood in terms of its post-socialist transformations, paper approaches its recent political history in terms of continuous populism, arguing that it played and still plays integral role in shaping democratic and liberal economy transition. While national and intraregional politics of post-Yugoslavia revolves around issues of nation, identity and history, giving rise to populism (political parties, practices and discourses), question remains what role does constitutionalism plays in it and how does it relate to populism? On a more general level, paper treats both populism and constitutionalism in their functional relation of economic transformation, pawing way for neoliberal economic policies. This results in populist democracies and “ethnocracies” as manifestations of continuous populism. Since both populism and constitutionalism have important relation to institutions, this will be analyzed through public trust in institutions measurement in post-Yugoslavia, relying on existing data. On a more specific level, paper examines interrelation between populism and constitutionalism in terms of national identity and treatment of minorities in legal and political aspects. In this regard, paper focuses on constitutional court decisions on minority rights and their enforcement in comparative perspective between Croatia and Bosnia and Herzegovina.

Alexandra Mercescu | West University of Timisoara

Lucian Bojin | West University of Timisoara

The Populists against "The People": Romania's New Culture of Protest




According to populist narratives, politics must be imagined as being a-conflictual since “the people” could not rise against those that “truly” represent it. This, of course, is contradicted not only by philosophical writings that point to politics’ essentially conflictual nature but also by the empirical fact of protests taking place with the aim of denouncing the populists’ actions. Against the background of a theoretical discussion on populism, we seek to assess to what extent the illiberal trends manifest at present time in Romanian politics can be deemed to be a form of populism that engages with (constitutional) law’s vocabulary. To this effect, we intend to analyze, among other things, the reaction of the ruling class to the emerging of a culture of protest, reaction whose rhetoric will exemplify how populists actually construct an exclusionary portrait of “the people” only to represent it as "The People".

Bogdan Iancu | University of Bucharest

"The Rule of Law" vs. "Populism"- Liberal and Illiberal Tropes in Current European Debate




Constitutional evolutions in Hungary (2011-), Romania (2012), Poland (2015-), and -more recently- Turkey have raised legitimate concerns about the use of fundamental law to illiberal ends. Certain commonalities are apparent: use of fundamental law to suppress debates and entrench current political (super)majorities, an excessive use of referenda to trump deliberation, and emphasis on (perhaps even fetishism of) popular sovereignty. National developments have been often described as fitting within a wider, global phenomenon, in association with, for example, the ‘Brexit’ or the unfolding political and legal tensions in the United States. In an attempt to define this newer, still inchoate and thus insufficiently understood phenomenon, constitutional and political science theorists have used a bevy of labels such as “illiberal constitutionalism”, “populist constitutionalism”, “legal resentment” or “constitutionalism in illiberal societies”. Constitutionalism corresponds in a broader sense to a liberal worldview, insofar as ‘normative constitutions’ have served, in the aftermath of the nineteen-century revolutions in France and the United States, the purposes of protecting the individual from the state by entrenched fundamental rights and functional division  of powers. At the same time, the classical constitutional tradition evades easy anachronistic categorizations, due to the fact that constitutional law as political law has always relied not only on the rule of law (juridical entrenchment of protections against majoritarian politics) but also on fragile balancing exercises: between politics and law, democracy and liberalism, state and society.
My argument shall address, starting from the example of Central and Easter European constitutional debates in Romania, Poland, Hungary, the features and causes of the new phenomenon of “illiberal constitutionalism” and the challenges posed by it to current constitutional arrangements within the European Union.

Ursus Eijkelenberg | International Institute for the Sociology of Law

False Promises: Why democracy is not helped by weak constitutionalism




The current constitutional democratic debate is centered around antipodes. On the one side of the spectrum is positioned liberal constitutionalism, which is increasingly challenged for its overtly legalistic nature. On the other side of the spectrum we find  types of constitutionalism (political and populist) that see to relieve constitutional democracy from its legal rigidity. In the latter, the position of constitutions as higher law is questioned on the basis of democratic arguments. Claims are made that democracy would thrive when constitutional supremacy were to be substituted with parliamentary supremacy or more radical forms of popular sovereignty. This paper explores the portrayed dichotomy between constitution (legal) and democracy (political) that is dominant in types of constitutionalism at both ends of the spectrum. Suggested is that such view — built on the idea that for the one to be viable, the other needs to be limited — obscures the frame for resolving legitimacy issues of constitutional democracy.  Maintained is that a conception based on mutually exclusive elements compromises the sustainability of constitutional democracy at large; constitutionalism and democracy ought to work towards each other rather than against each other, for strong democracy requires strong constitutions, and vice versa. 




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