Book Review/Response: Paul Blokker, Jiri Priban and Bogusia Puchalska on Civic Constitutionalism

[1] J Přibáň, Reconstituting Paradise Lost: Temporality, Civility, and Ethnicity in Post-Communist Constitution-Making, 38 Law & Society Review, No. 3, September 2004, pp. 407-32

Review by Bogusia Puchalska

–Bogusia Puchalska, Lancashire Law School, reviewing Paul Blokker, New Democracies in Crisis? A Comparative Constitutional Study of the Czech Republic, Hungary, Poland, Romania and Slovakia (Routledge 2013).

Paul Blokker’s diagnosis of the symptoms of the crisis in new democracies stays broadly in line with the views prevailing in the field of Central and Eastern European (CEE) comparative politics: weakness of civic engagement and participation, and neglect of substantive and legitimatory dimensions of democracy. The identification of the causes of this malaise, though, sets this work apart from most others – the author blames the prevalence of legal constitutionalism, which resulted in the strong, one-sided, emphasis on formal institutions and the rule of law, to the detriment of “sociological-substantive dimension to the building of constitutional democracy […] that involves democratic learning and deliberation as well as engagement and participation” (p. 2). These problems, according to Blokker, can be addressed by the adoption of civic constitutionalism, which should lead to “truly emancipatory democratic regimes grounded in collective autonomy” (p. 9).

The author advances his main thesis by asserting the existence of legal constitutionalism and then critiquing its dominance in five CEE countries: the Czech Republic, Hungary, Poland, Romania and Slovakia. This is supported by comparative discussion – in historical and political-sociological perspectives – of a selection of attributes of legal constitutionalism in the five countries: the focus on sovereignty, higher status of constitutional law and the prominent role of constitutional courts.

The author claims that the prevalence of the legal type of constitutionalism can be explained by the readiness of the post-communist regimes to adopt the Western blueprint of constitutional democracy, and by the legacy of the dissident-led ‘rights revolutions’. In another line of argument the author claims that the external pressure of Europeanization, on balance, proved detrimental to the development of both legal and civic constitutionalism in the region. This latter thesis is not entirely new. The critical end of Europeanization literature recognized some time ago the mixed political and constitutional outcomes in the new CEE democracies of the pressure exerted by the EU and other international bodies. Blokker adds a new aspect to this argument by seeking to find seeds of civic constitutionalism in the language of the dissidents before 1989, and by alleging affinity between the dissidents’ discourse and the later pressures of Europeanisation.

Consequently, Blokker makes a case for crediting the dissidents of Poland’s Solidarność and the Czechoslovak Charter 77 with promoting both the rule of law and civil society in their programs and discourses. Such a view is justified only in part, as it glosses over the dominance of catholic-national values in the ethos of Solidarność, for instance, and the many instances where the practices of the dissident movement fell short of democratic standards. Since those failings also occurred at the watershed moments of the CEE countries’ recent history – such as the Round Table Talks in Poland and Hungary, and the negotiations of agreements on systemic reforms – their impact should be given more weight than the author allows.

Let us also not forget that Solidarność not only presided over the marginalization of working people from the post-communist politics, but later committed the “great betrayal”, i.e., directly contributed to the demise of trade unions in Poland. All this confirms a more complex, and clearly less positive role of the dissidents in the promotion of democratic politics. The current weakness of civil society in the region is, arguably, one more aspect of the dissident movement’s ambiguous legacy.

Next, the author embarks on a search for civic constitutionalism in the five countries under discussion – and largely fails to unearth much evidence of its existence. The search involved the analysis of three dimensions of constitutional orders identified by the author as necessary for civic constitutionalism to succeed: direct engagement in revisions of constitutions, other forms of direct democracy, and local and regional self-government. Only the last one is judged as showing some promise, the first two were found wanting. Yet, even the cautiously positive evaluation of the decentralized governance in Poland, for instance, might be over-optimistic. Both the academic and the popular media allege that local governments are run by clientelist/partisan cliques across Poland (see for instance Gazeta Wyborcza 30/07/2012).

Still more troublesome are the author’s other suggested means of facilitating democratic engagement of CEE citizens, in particular his idea of making constitutions flexible rather than entrenched. In principle, flexible constitutions appear useful in facilitating civic engagement. However, in the context of the CEE new democracies, such an idea carries with it serious risks of constitutions becoming bargaining tools of partisan and factional politics. This could lead to the destabilization of the political systems, given the weak corrective force of democratic politics in those countries. A number of recent developments confirm this possibility: Victor Ponta’s sacking of the heads of both houses of Romanian parliament and the ombudsman, and the impeachment campaign targeting President Basescu; Milos Zema’s attempt to exploit the Czech governmental crisis to boost his own power; Hungary’s Fidesz party and Victor Orbán changing the constitution with relative ease to entrench their own power. In Poland, Prawo i Sprawiedliwość [PiS] – the likely winner of the next general elections – has been campaigning for a change of the constitution, and has already published its draft text closely reflecting PiS’s own political agenda. Yet another barrier to forging civic engagement through opening constitutions for revisions is likely to be the general lack of interest in constitutional matters across the region. This is evidenced by the low turn-outs in the past constitutional referenda and the citizens’ poor knowledge of the content of the constitutions (86 per cent of Poles in 1994).

Controversially, Blokker projects civic constitutionalism as “operating on both constitutional and normal politics level” (p.80). Even though this idea seems to be one of the key premises on which the case for civic constitutionalism is built, the author provides only a brief overview of the different types of constitutionalism – political, societal and democratic – that in different degrees assume the suitability of constitutionalism as a tool of “normal” politics. What is missing is a full evaluation of the possible consequences of this suggestion. Yet, as the recent events in the CEE indicate, dealing with the threat of authoritarianism might be more urgent than tackling electoral apathy – at least for the time being.

Consequently, keeping the distinction between higher-order constitutionalism and everyday politics might be a valuable tool in this battle, particularly given the almost impossible challenge of getting right the balance between opening constitutions to civic activity – as well as to the vagaries of partisan and factional politics in the CEE – and entrenching constitutional checks and balances, which offer a better chance of political and legal stability. In other words, entrenched constitutions, which are granted the authority of a higher law, seem better-suited to perform such a stabilizing role in absence of well-functioning, corrective mechanisms of institutionalized democracy. Hence, the usefulness of blurring the distinction between the everyday and game-changing types of politics in the CEE new democracies in the current political climate is debatable.

In summary, Blokker suggests a novel solution to a well-recognized set of concerns with the state of democracy in the CEE, which is more elaborate and, arguably, more convincing on a conceptual than on an experiential level. Nevertheless, there can be no doubt that this book is a valuable contribution to the ongoing debate over the complexities of post-communist politics.

A Reply to Professors Jiří Přibáň and Bogusia Puchalska

–Paul Blokker, Principal Investigator, CoPolis project, University of Trento

I am deeply grateful for the dual review of my book by Prof. Jiří Přibáň and Dr. Bogusia Puchalska. It is a wonderful experience to receive such a profound, critical, and insightful review by two major scholars in the field. I will start with a reply to Přibáň’s valuable comments and then address Puchalska’s points of critique.

I am delighted by Jiří Přibáň’s kind remarks on my work and deeply grateful for his insightful comments and thoughtful critique of the book New Democracies in Crisis? Below, I will first respond to some of his more general comments and then concisely address the specific points of critique raised in his review. These points are, if I understand them correctly, first, an underestimation in civic constitutionalism of the risks of populism in the repoliticization of constitutional democracy; second, an artificial distinction between legalism and emancipation imposed ex post on dissident discourse and post-1989 constitution-making; and, third, an insufficient generalization of the democracy-in-crisis argument, that is, as applying to the whole of Europe.

To start on a general note, while I fully agree with Přibáň’s view that the constitutionalism–democracy tension or the legalism versus democratic participation argument I develop in the book is a classical one, I am not entirely sure that this tension has been as much at the heart of debates on democratic transition or constitution-making in Central and Eastern Europe as Přibáň claims. For sure, the tension is clearly evident in Přibáň’s own excellent work, which has very much inspired me through the years, as well as in that of some other scholars, such as in the work of Andrew Arato, or more explicitly in the recent books of Grazyna Skapska and Bogusia Puchalska. But I feel that in general the attention has been on institutional stabilization and the rule of law (in the transition debate) and on the necessity and form of judicial review, the role of constitutional courts, and lustration (in the legal debate), without due attention being paid to the implications of constitutionalization in terms of (the emergence of) a wider constitutional-democratic culture and/or possibilities for civic engagement in constitution-making and democratic politics.[1]

My argument is that a more critical scrutiny of the predominance of legal constitutionalism – with its emphasis on strong courts and judicial review – in the region might further our understanding of the current democratic crises in the region. This is so in two ways, I think. First, legal constitutionalism in some ways poses an obstacle to the emergence of civic (and political) engagement with the constitution and participatory forms of constitutionalism. As Wojciech Sadurski has pointed out, legal constitutionalism might have a ‘negative educational effect’ in new democracies and might lead to the perpetuation of the problem of both weak political parties and weak civil society.[2] And in a more well-known argument, it is held that the depoliticization of constitutional norms through entrenchment and judicial review undermines the possibility for auto-nomos, that is, to give oneself one’s own laws, including constitutional nomos. Second, legal constitutionalism has in many countries become the object of forms of resentment (which in the book I call “legal resentment”). This becomes particularly clear in the repeated political assaults on the Hungarian Constitutional Court and its powers as well as on the Romanian Court in recent years. And in particular in the Hungarian case, an alleged national constitutional tradition is defended as an alternative to “imposed” European, liberal constitutionalism.

Přibáň’s first main point of critique – that the civic constitutionalism I promote in the book does not sufficiently take into account the rise of populism – is well-taken. But the comment in itself underestimates, I believe, how the lack of development of robust democratic constitutional channels and arenas might have facilitated the emergence of constitutional populism in the first place. The relation between constitutionalism and populism is a complex one. The general assumption seems to be that rigid constitutions serve to discourage or neutralize authoritarian tendencies of populism. But, for instance, in Hungary, Viktor Orbán’s populism emerged not so much because it could exploit a constitutional-democratic system that prioritized popular sovereignty and therefore somehow neglected legal guarantees, entrenched rights, and robust judicial review, although admittedly the two-third rule greatly facilitated the “success” of constitutional populism. Rather, it seems to be the case that populism could emerge in a system characterized by a relatively strong legal-constitutional architecture, rendering the status of legal constitutionalism as an anti-dote to populism ambiguous. And in a peculiar twist, Fidesz itself utilizes legal-constitutional instruments to entrench its program, such as through the pseudo-constitutional cardinal laws, and imposes its project without due debate with either opposition or wider society. In my reading, then, a problematic dimension of the Hungarian case is a dire lack of robust civic-constitutional institutions (including, for instance, the instrument of a constitutional referendum, but also more intense mechanisms such as constitutional assemblies or popular initiatives) that could enhance public debate on the constitution. This state is now exacerbated with the new Basic Law that reduced the available civic-constitutional instruments (such as the actio popularis). At least in some of its facets, Orbán’s project emerged as a critique on a universalist, legalist project of constitutional democracy as endorsed not least by the Sólyom Court of the 1990s. But the Fidesz-project is equally weary of participatory and pluralistic civic-constitutional structures. Přibáň is then right that civic constitutionalism needs to carefully explain how the repoliticization of constitutional democracy might avoid the emergence of problematic and exclusionary forms of populism. The risk of populism might be reduced by, for instance, insisting on the importance of (institutions supporting) widespread public debate on constitutional norms and constitutional change, as I argue in the concluding chapter of the book, or by endorsing a plurality of democratic-participatory institutions, including those related to constitutional change, as well as the empowerment of various relevant constitutional subjects. In sum, Přibáň’s comment does not undermine, I believe, the claim of the book that a one-sided insistence on legal constitutionalism or “democracy by judiciary” potentially has detrimental implications for a robust democratic system and the diffusion of a democratic political and constitutional culture in both political and civil society.

The second critique on my concept of civil society is not easy to refute, not least due to the authority of Přibáň’s own work on dissidence. His critique that my distinction between the legalist and emancipatory dimensions of dissident discourse is an “ex post theoretical re-entry and reinterpretation” is accurate, in that it contained both a dimension of legality and what Přibáň has called a “moral and existential vocabulary”.[3] His suggestion to make a distinction between a cultural legacy and existing political projects makes much sense, and in a way is reflected – but perhaps not fleshed out sufficiently in a methodological sense – in the chapters four (on dissidence) and five (on post-1989 constitutional institutions) of the book. My take on the development of the idea of civil society in the region corresponds to a scholarly interpretation that sustains that since 1989 the liberal dimensions have overshadowed the radical-democratic ones. This interpretation overlaps with the tension between the projects of legal and civic constitutionalism (and the predominance of the former over the latter) I explore. On a different note, I believe that from a comparative perspective a distinction between the liberal-legalistic and radical-democratic dimensions of dissident discourses provides some analytical clout, even if a clear-cut relation between pre- and post-1989 developments cannot be identified. By way of example, in the case of Romanian dissidence, the (scarce) references to the rule of law seemed more related to a largely legal-constitutionalist view, while radical-democratic or civic-constitutionalist ideas were not or only indirectly noticeable. In other words, a legalistic critique on the Ceauşescu-regime was to some extent available, for instance in Paul Goma’s or Vlad Georgescu’s critique of the regime, but an emancipatory, grass-roots idea of constitutional democracy cannot, as far as I can see, be detected (some argue that instances of an emancipatory dimension have emerged only belatedly, in the 1990s). This is in stark contrast to for instance the much more variegated dissident discourses in the Czech Republic, Hungary, Slovakia, and in particular Poland.

The third point of critique, that of an insufficient generalization of the argument, is “spot on”. Although the New Democracies in Crisis? book contains an attempt to reflect on the specific experiences of the Central and Eastern European countries, the crisis argument cannot be confined to this part of Europe and, what is more, should be linked to the European project at large. This recognition does come through – even if largely implicitly and without a focus on Western Europe – in the sixth chapter, where I discuss the influence of EU enlargement policy and the recent reactions of the EU to constitutional developments in Hungary and Romania. A dimension of legal constitutionalism can without doubt be detected in EU policy (not least in the enlargement opinions and recent democracy “oversight”), and this is clearly not unrelated to a general emphasis on an expert-driven, top-down understanding of democracy in the EU project (as recently forcefully argued by J.W. Müller[4]).

While the book might have reflected more on this European dimension as well as the more general crisis of constitutional democracy, it was not part of its original purpose. But I fully subscribe to Přibáň’s thesis that in order to understand the predicament of constitutional democracy in both Eastern and Western Europe, including beyond the domestic level, we need to generalize the analysis. I can only say that some of such a more general approach is part of my current research. In a research project on “Constitutional Politics in Post-Westphalian Europe” (CoPolis)[5], which I am currently heading at the University of Trento, we try to get a comparative hold on contemporary challenges to and changes of constitutional democracy in Europe. In this respect, I myself analyze the very much relevant and troubled case of constitutional politics in the Italian “Second Republic”, while my colleagues look at the cases of Hungary, Iceland, the UK, and Romania. Legal constitutionalism and its contextual relevance is a major aspect in all the cases under study, but so are alternative tendencies in the form of inter alia civic constitutional projects (the Icelandic case is unique in this respect, but references to popular constitutional engagement can also be found in the recent proposal for a Constitutional Convention in the UK, or in the set-up of the recently held Forum Constitutional in Romania). Important dimensions of comparative research should include, I feel, the analysis of (shifting) understandings of constitutionalism (including cosmopolitan, radical-democratic, as well as conservative/statist and “originalist” narratives). An additional key aspect that draws in sociological analyses of constitutions regards the role of (civil) society and civic associations in constitutional claims-making and the endorsement of specific constitutional trajectories.

Let me now turn to the second review. I am very thankful for Bogusia Puchalska’s constructive critique that in some ways overlaps with Přibáň’s comments, but surely also contains additional points. I will particularly focus on the latter in my reply. A peculiarity is that in her recent work Puchalska herself builds on Tully’s “democratic constitutionalism”, which endorses civic engagement with the constitution, but in her review displays the “discomfort with democracy” and “fear of the masses” that democratic constitutionalism criticizes. As far as I can see, Puchalska raises the following additional points. First, my treatment of dissident discourse is not sufficiently balanced and needs to include negative, non-democratic dimensions of the dissidence experience. Second, in my arduous quest for civic constitutionalism in the region, even the most available dimension of civic constitutionalism in the region – in terms of local democratic channels – is ultimately highly problematic. Third, there is supposedly a need for rigid constitutions in the region rather than their openness. And, in a related way, civic interest in constitutional matters is largely absent. And, finally, a full evaluation of the possible implications of a civic constitutional approach comprising both normal and constitutional politics is missing.

Puchalska is without doubt right that the variegated dissident experience throughout the region did not merely consist of positive democratic dimensions, and that its analysis should duly acknowledge non-democratic or even negative experiences. I agree with Puchalska that one cannot treat the highly variegated and contextually diverse experiences with dissidence as an unequivocable force of democratization (even if her emphasis on for instance the catholic-national ethos of Solidarnosc should, I believe, itself be qualified in that in democratic terms this legacy contains both problematic and more favorable dimensions). My analysis of dissident ideas provides less a suggestion that this is an unproblematic legacy, and more of an attempt to (re-)draw attention to the possible availability of a radical-democratic repertoire related to the dissident experience. This argument of a kind of rehabilitation is very much in line with what scholars such as Jeffrey Isaac, Jeffrey Goldfarb or Ferenc Miszlivetz have suggested in recent years. But this obviously does not mean that the radical-democratic dimension is not weakly entrenched nor that it is not continuously threatened by counter-trends. My argument is not that there has been a singularly positive relation between dissident discourse and democratization, but rather that one of the relevant legacies includes a radical-democratic set of ideas, which is, however, often belittled. The unbalanced view of the dissidents as heroes in the remarkable “self-limiting revolutions” of 1989 is now turned into the equally unbalanced portrayal of the dissident legacy as a burden for the new democracies. Be that as it may, Puchalska’s emphasis on the role of some dissidents in undermining this legacy appears to further strengthen my argument that after 1989 radical-democratic dimensions of constitutional democracy became marginalized.

The relatively weak institutionalization of this legacy clearly comes up – as remarked by Bogusia – in my quest for civic constitutionalism in the region. And she is right to observe that the most robust dimension that results from the analysis is that of local democracy. Her suggestion that even this dimension might be much more problematic than admitted in the book is well-taken, but I believe we should be cautious in jumping to conclusions. My findings are not out of tune with the work of comparative political scholars, who have pointed to the ambiguous but not one-sidedly negative state of local democracy in some of the countries in the region, such as Poland and the Czech Republic.[6]

Puchalska’s most trenchant critique is when she invokes risks related to a participatory form of constitutionalism, and laments a missing comprehensive evaluation of the possible implications of a civic constitutionalism that involves both normal and constitutional politics. These comments are not unrelated to some of Přibáň’s observations. Again, my argument is that the risks of civic constitutionalism should be set in the right context. The suggestion is not to make constitutions the uncontrolled object of majoritarian and/or factional politics. In other words, as also argued by Joel Cólon-Ríos, making constitutions more open to popular participation does not necessarily mean that they are easier to change. Rather, the idea is to significantly strengthen institutions that might guarantee wider public debate and deliberation (examples are the Icelandic Constitutional Gathering held in November 2010 or the current Irish Constitutional Convention), allowing civic engagement with important constitutional matters. Such institutions could operate as a kind of counterweight to political majorities. Puchalska’s examples against civic constitutionalism are not all convincing here. For instance, Victor Ponta’s attack on constitutional democracy occurred in a political order that had been importantly strengthened in formal, legal-constitutional terms throughout the 2000s. This strengthening included a significant enhancement of the status and review powers of the Romanian Constitutional Court. These changes have apparently not helped to avoid the recent crises. The Romanian example rather reveals a weak entrenchment of constitutional principles in the political class and culture. From this perspective, a good part of the Romanian political elite appears constitutionally analphabetic, president Băsescu included, and responsible for undermining constitutional democracy.

In my view, in contrast to the legal stabilization argument of Puchalska, structural problems of the new democracies include the relative absence of institutions of popular participation, which might be related to what Pierre Rosanvallon indicates with “counterdemocracy”,[7] as well as of robust institutional linkages of civic associations and citizens with formal politics. I do not agree with Puchalska’s legal-constitutionally informed remark that ‘dealing with the threat of authoritarianism might be more urgent than tackling electoral apathy’, as if the two are unrelated and as if statist legalism is itself not subject to significant eroding tendencies (this point is fully acknowledged by Přibáň). I also have problems with the statement that “particularly given the almost impossible challenge of getting right the balance between opening constitutions to civic activity […] and entrenching constitutional checks and balances”, we should abandon attempts to rethink a constitutional democracy that gives collective autonomy its due. This suggests that we should be willing to sacrifice self-rule for stability, a fashionable idea in current times. And, again, the example might be misleading in that the Romanian constitutional crisis seems to be the outcome of a widespread ignorance of democratic and constitutional principles of in particular the political class. In this, a legal-constitutional system centered around the Constitutional Court seems by itself not able to provide the necessary educational effects. Open and inclusive public debate on the constitution – if robustly institutionalized – might help to counter such a situation. But I agree with Puchalska that the obstacles to forms of civic (and political) constitutional engagement are formidable: not only a widespread lack of civic interest in constitutional matters,[8] as she rightly points out, but also elite disdain for participatory institutions and, last but not least, the increasing irrelevance of domestic democracy due to tendencies of Europeanization and globalization. It is thus less a question of a debatable “usefulness of blurring the distinction between the everyday and game-changing types of politics in the CEE new democracies”, but rather how to re-invent meaningful democratic self-government and save it from succumbing to a complexity of strongly detrimental tendencies.

Summing up, both Přibáň’s and Puchalska’s reviews indicate the significant hurdles to the development of virtuous and inclusive democratic politics in the region, and not only there. In this, they equally bear witness to the imperative of rethinking some of the constitutional foundations on which these democracies are based.