*Editors’ note – this post is part of a series on ‘Contemporary Challenges for Constitutional Accountability’. The other posts in the series will be available here.*

From the rise of so-called ‘illiberal democracies’ following the fall of the Berlin Wall, through the hasty jettisoning of human rights by democracies in the aftermath of 9/11, to the electoral success of right-wing populist movements in the post-2008 financial crisis world, much ink has been spilled writing liberal democracy’s obituary. But while rumours as to its death may have been somewhat exaggerated, it is nevertheless the case that liberal democracy and its legal form—liberal constitutionalism—is under pressure. In the face of these challenges, how does liberal constitutionalism respond? Are these challenges to liberal democracy symptomatic of an accountability deficit? And how, if at all, can liberal constitutions reclaim their emancipatory potential?

The Failure of Liberal Constitutionalism?

One of liberal constitutionalism’s fiercest critics was Carl Schmitt—the ‘Crown Jurist of the Third Reich’. His analysis of Weimar Germany and what he claimed was liberalism’s reluctance to distinguish friend from enemy, has a powerful explanatory force that finds perennial support on both the left and right of the political spectrum. What irked Schmitt was not necessarily liberal constitutionalism’s failure to make the necessary friend-enemy distinction but rather its refusal to acknowledge when it had in fact done so and its continued insistence that all state power could be exercised through law. For instance, despite the ostensible fidelity to constitutionalism, liberal democracies have demonstrated more than a willingness to cry emergency in times of crisis, circumventing ordinary constitutional checks and balances and stymieing debate. These are invariably justified by pleading to ‘necessity’ and insisting that ‘they had no choice’. Such propensity is not solely limited to the context of national security threats such as terrorism but is endemic in the organisation of the economy and the state’s response to threats to the financial system. While attempts may be made to cling to the rule of law and insist that such emergency responses were lawful or constitutional, often this comes at the expense of emptying these terms of any normative value which liberal constitutionalism places on them in the first instance.

Liberal constitutions thus often demarcate between the acceptable and unacceptable while simultaneously purporting to create a neutral space for the marketplace of ideas to flourish. Meanwhile, political disagreements are reframed as technocratic issues. While the judicial protection of human rights often takes the brunt of public law’s attention in this regard, it is in the area of economic regulation that this trend is most pronounced. Politicians thus shift decision-making to unelected officials and relegate their roles to one of superficial accountability or oversight; relatedly, they frame their own decision-making in terms of technocratic objectivity, masquerading the political assumptions underlying it. Arguably, the strongest example of this in the UK is the delegation of monetary policy to an independent Bank of England with the consequences of this evident to anybody with a bank account or mortgage. And while the Bank of England Act 1998 protects certain reserve powers on the part of the Treasury to issue the Bank directions if they are satisfied they are required ‘in the public interest and by extreme economic circumstances’ such a move would be highly controversial given the perceived success of independent monetary policy. This raises the further issue of convergence across the main political parties on the bounds of what is politically possible or acceptable—what is sometimes termed the ‘Overton window’.

This depoliticization and rise of technocracy has been criticised as sowing the very seeds of liberalism’s demise. Much of this can be seen in the manner in which liberals are willing to delegitimise those who disagree with them by labelling them as populist. Populism is at best a ‘thin-centred’ description of political movements aimed at reclaiming power for those who are considered the ‘true’ people of the state by wresting it away from ‘corrupt elites’. The problem with this concept, however, is that it is woefully vague, making it almost useless as an analytical concept. Instead, its utility lies in conflating the far left with the far right, which is precisely why many commentators opt for this lens of populism in the first place.

This conflation is dangerous. There is nothing fundamentally wrong with politicians claiming to speak for the people. But the flattening of all distinctions between political groups through the lens of populism ignores a fundamental issue as to construction of the people. A far-right construction of the volk with its emphasis on ethno-homogeneity is imbued with racism and xenophobia. It stresses the importance of racial and cultural uniformity, attacking and labelling as ‘other’ those who fall out of this narrow construct. These others are conceptualised as a danger to the stability of society.

The term populism downplays this pernicious aspect of the far-right and in so doing, not only misdiagnoses the problem but ossifies it too by doubling-down on the insistence that any critiques of so-called elites are illegitimate, regardless of their substantive content. Populisms of various creeds thrives on the ‘left behind’; the places that ‘don’t matter’. It thrives on those who feel politicians no longer speak to, or listen to them. Such grievances may be legitimate and by giving them a voice, politics and the constitution can assuage the left behind. In short, many of these so-called populist movements are manifestations of democratic accountability in action. On the other hand, failing to tackle the grievances leaves space for finger-pointing at the other; blaming them for the lack of housing, or pressure on health and education services. By conflating the two—the legitimate grievance and the illegitimate finger-pointing at the other—we only serve to fuel this feeling of the ‘left behind’ and of people being ignored by the sensible politics.

Towards an Agonistic Constitutionalism?

So how do we address the failings of liberal constitutionalism while still preserving aspects of its emancipatory potential? Agonism is an emerging area in political theory. It is acutely concerned with the weaknesses of liberalism and its compatibility with democracy. Agonists such as Chantal Mouffe and Bonnie Honig criticise liberalism as expressing a tendency towards favouring the aforementioned displacement of politics in favour of technocracy. This emanates from liberalism being uncomfortable with conflict.

By seeking to downplay conflict through, for example, the juridification of political contestation or transferring initial decision-making to technocratic or administrative bodies, liberalism may do more harm than good. Rather than ensuring a stable settlement, as more and more of politics is displaced, this may actually risk increasing discontent as avenues for disagreement are also closed off. People begin to believe that no political party represents them. Other constraints on political participation—for example, attacks on the right to protest or freedom of expression—exacerbate the problem further. Opportunistic actors may then claim that power has been corrupted and wrested away from the ‘true people;’ instead it is now vested in the hands of a corrupt elite who neither speak for or listen to the people. Only fundamental constitutional change—the populist constitutional project—can wrest it back and only they can speak for the true people. As such, populism can be understood as a response to a perceived political accountability deficit in liberal democracies.

To counter this weakness, agonism contends that there is value in political conflict. Such conflict must be embraced; however, it should be adversarial rather than antagonistic in nature. That stated we must be permanently alert to the potential of antagonistic conflict as reflected in Schmitt’s friend-enemy distinction and therefore we must strive to avoid conceptualising those who disagree with us as enemies. Consequently, Mouffe argues that we should not pursue a consensus that is impossible; rather, we should recognise and acknowledge adversary positions but, importantly, simultaneously recognise adversaries as legitimate, respecting their right to defend their own interests and values. The possibility of antagonism must still be taken seriously but this can only be done through an agonistic conception of politics that allows space for political conflict.

Constructive conflict requires pluralism as without a plurality of views, there can be no conflict. Agonism thus vehemently rejects the illiberal or right-wing populist conceptions of the people as homogenous—and ethnically or racially homogenous in particular. An agonistic constitutional order must therefore insist upon space for political conflict and for a pluralistic conception of the people. In turn, this contrasts with liberalism’s aforementioned historical propensity to stifle debate while simultaneously denying that it does so.

Agonistic theorists have, however, been criticised for failing to put any constitutional flesh upon these theoretical bones and for failing to articulate how agonism could be put into practice. It is this gap that my work seeks to fill: what does agonistic constitutionalism entail and what would the agonistic constitution look like?

Agonistic v Political Constitutionalism

Ostensibly, agonism has much in common with political constitutionalism, not least their shared concern over the displacement of politics with law and prima facie emphasis on political modes of accountability. I am not so sure that the answer is this simple, however. British constitutional theory is dominated by concern as to the legitimacy of the judiciary vis-à-vis the legislature. The legitimacy of one is framed in terms of a dichotomy with the other and vice-versa. Those defending the supremacy of parliament over the judiciary point to the superior democratic credentials of the former, patting themselves on the shoulder for a job well done and allowing the concept of representation to do the heavy lifting. This dichotomy leaves public law lacking the necessary grammar to critically appraise the relation between the people and those who claim to speak on their behalf. Instead, the utter dominance of parliamentary sovereignty results in an eschewing of constitutional conflict as all questions are resolved in parliament’s favour. Furthermore, given agonism’s emphasis on pluralism, it views claims to perfect representation of the demos with suspicion. Parliamentary sovereignty in its current iteration is all too comfortable in its assertion that it is the epitome of democracy, notwithstanding well-founded critiques of the First-Past-the-Post method of election that is inherently anti-pluralistic.

An agonistic constitutionalism should therefore seek to inject ‘the people’ into this constitutional order while simultaneously acknowledging the pluralistic nature of this people. Consequently, while agonism cautions against the displacement of politics, it equally cautions against one organ of the state claiming to speak on behalf of the people. An agonistic constitution must therefore have some mechanism or mechanisms through which the people can hold accountable and challenge those who claim to speak on their behalf. Elections once every five years on the basis of First-Past-the-Post is a poor simulacrum of the agonistic constitution.

An agonistic constitutionalism therefore should seek to construct valves allowing the release of political pressures through various constitutional moments while still facilitating majority decision-making and avoiding moments of political closure. A robust judiciary may not necessarily be antithetical to an agonistic constitution as unelected decision-makers may provide for constitutional moments of positive political contestation. However, so too must there be some mode of accountability for judicial decisions; not for the judicial office-holders per se, but for their decisions.

Conclusions: Constitutional Innovation and Agonistic Constitutionalism

The idea of an agonistic constitutionalism may be conceptualised by some as an oxymoron, with agonism often more closely linked to more anarchic conceptions of politics and democracy. As such, agonism may be conceptualised as involving actors and spheres of contestation outside the ordinary parameters of constitutional politics. However, an agonistic constitutionalism can elevate these spheres into areas of constitutional inquiry. By insisting on both the people being able to challenge those who speak on their behalf and on a pluralistic conception of the people, agonistic constitutionalism may demand more radical institutional reform and alternative modes of accountability not envisaged by the orthodox separation of powers theory.

In this regard, recent critiques have challenged liberal constitutionalism’s universalistic claims, not least, the ubiquity of the separation of powers. Martin Loughlin’s Against Constitutionalism, for example, seeks to revive an understanding of Montesquieu as insisting upon the importance of context and particularity when understanding a given constitutional order. While Loughlin deploys this to critique the notion of constitutionalism, this argument can also, paradoxically, catalyse a more innovative approach to constitutional design. Agonistic constitutionalism may thus push us beyond the separation of powers; beyond understanding the people’s role solely as electors. Here, John P. McCormick’s revival of the Roman Tribunate may be insightful, as is Camila Vergara’s call for ‘open democracy’. Relatedly, agonistic constitutionalism may demand a more critical interrogation of the public-private divide, particularly in the context of the regulation and provision of forums for political debate, and the impact of political financing on political pluralism.

Ultimately, the form of an agonistic constitutionalism remains to be seen and a brief blogpost that attempts to sketch out complex ideas from agonism to liberalism may probably annoy more than it convinces. Yet I hope this is the start of a deeper, more comprehensive study of the possibilities of agonistic constitutionalism and that I will, in time, be able to answer some of the questions that I ask here.

Alan Greene is a Reader in Constitutional Law and Human Rights at Birmingham Law School

(Suggested citation: A. Greene, ‘Agonistic Constitutionalism and Accountability’, U.K. Const. L. Blog (26th February 2024) (available at https://ukconstitutionallaw.org/))