affiliated to the International Association of Constitutional Law
This week’s event announcement is below.
TLI Signature Lectures 2017-2018
Title: Institutionalisation and its Discontents. The Rule of Law versus (Anti-) Constitutional Populism in East Central Europe
Speaker: Professor Martin Krygier (University of New South Wales)
Date: Fri 17 November 2017
Time: 17:00 – 19:00 GMT
Venue: SW1.18, Somerset House East Wing, The Dickson Poon School of Law, King’s College, London, Strand, London, WC2R 2LS
This paper ascribes some of the difficulties with understanding and coping with populism in central and eastern Europe to problems of 1. challenges to the institutionalisation of liberal democracy and the rule of law, and 2. failures to cope with the specifically political character of those challenges. Drawing on Philip Selznick’s concept of institutionalisation, as ‘infusing value beyond the technical requirements of the task at hand,’ the paper argues that post-communist leaders were much more given to emulation, adoption and installation, than they were into institutionalisation. Existing institutionalised practices and institutions complicated attempts at innovation, and not much heed was paid to them. Innovations had shallow roots and not much cultivation. So populist leaders, who are attuned to the need to institutionalise their reforms in existing patterns of attachment had a lot of room to move and a lot of material to draw upon and exploit. They draw on institutionalised sources of attachment, resentment, and attitudes to public institutions and reforms of them, but they also seek to develop and shape such attitudes in ways that puff up existing counter-liberal institutions and attached ones, and hollow out introduced ones. For their aim is not simply to oppose the values of democratic constitutionalism, but by techniques that include what David Landau calls ‘abusive constitutionalism’, profoundly to de-institutionalise them. They seek to render them instruments of their power rather than controls upon it.
While I argue that the new populists are talented institutionalisers of their own goals, their aim is pervasively anti-institutional in the more common understanding of that term. And that goes well beyond the specifics of the shape of this institution or that; it goes to the very existence of independent institutions in principle. For all their ‘constitutional’ formalities and faux punctiliousness, these regimes are engaged in deliberate, and sophisticated assaults not only on the fundamental values of the rule of law, but on their institutional foundations and on the possibility of strongly institutionalising those institutions.
Failure to honour what we might take to be fundamental principles of the rule of law is commonly not primarily a technical, epistemological problem, then, as rule of law promoters all over the world are often given to think, but an institutional one in the sense I outline, and also, relatedly, a political one. What is involved when the rule of law is undermined is often not a lack, an absence of understanding of or will for the rule of law, but rather the presence of something else, a contradictory agenda, and a quite different and opposed Weltanschauung. Often those in pursuit of that agenda are not at all epistemologically challenged. They know what they want and they don’t want the rule of law in any plausible sense of the ideal, even though they might use the term because they need the halo it bestows, and they might mimic the techniques, pick out existing ‘worst constitutional practices’ to follow to shield them from legalistic international and national criticism. They have other ideals.
Rule of law values have never had too strong a hold on power in east central Europe, have never been thickly institutionalised, and need all the help they can get. The modern anti-constitutional populists, fully conscious of the consequences of what they do, are giving them no help at all. Those who seek to oppose them will need to do more than object to their legal manoeuvres. They will have to return to politics in a real and deep sense of the word.