Abstract
Andrew Arato and Jean Cohen's Populism and Civil Society: The Challenge to Democratic Constitutionalism is probably the most important contribution to the academic debate on populism in recent years. I will discuss two of the book's core contribution to the delete: (un-)civil society and constitutionalism.
Andrew Arato and Jean Cohen’s Populism and Civil Society: The Challenge to Democratic Constitutionalism is probably the most important contribution to the academic debate on populism in recent years. I will discuss two of the book’s core contributions to the debate, (un-)civil society and constitutionalism.
The book puts the populism discussion squarely into the tradition of critical theory, in contrast to an overwhelming part of the debate in both political science and legal studies, stuck in a (not always explicitly acknowledged) normative, anti-populist position grounded in some form of defence of the liberal status quo. Arato and Cohen’s book starts from an inquisitive perspective that considers both anti-democratic/authoritarian and emancipatory dimensions of the populist phenomenon. In fact, Arato and Cohen explicitly acknowledge that it is not sufficient to defend liberal democracy as it is, if modern democracy is to be safeguarded. Rather, liberal democracy’s serious shortcomings should be factored in, and democratic alternatives should be genuinely considered. As they state, ‘we believe that liberal democracy is by its nature an unfinished and incomplete project. Accordingly, the contemporary halting or even reversal of its democratic expansion plays a key role in opening the terrain to populist challenge in its various forms’ (p. 1). Arato and Cohen stress the need for a continuing democratization of democracy. They acknowledge that it is not sufficient to criticize populism as a potential threat to democracy; its nature, intentions and relation to democracy need to be clarified. This ipso facto means that liberal democracy itself needs to be critically assessed in terms of how much it lives up to its own promises and to what extent it is based on contradictory, or at least tensious, core premises. Here, I believe Arato and Cohen’s account might be pushed further (I will discuss this below in relation to constitutionalism), in that their definition of liberal democracy appears as a rather minimalist one (stressing the need for negative constraints as its core), while the relation with radical forms of democracy remains unclear. What is essential here, in my view, is the role of law, including its constitutional dimension, and its relationship with popular sovereignty and citizen participation.
The book is refreshing in its definition of populism in a multi-faceted fashion, showing how much of the rhetoric on the alleged difficulty of defining populism is misguided. Sure, populism is a contested phenomenon, but it is at the same time possible to identify core characteristics that most observers agree to. In fact, the authors summarize the implicit consensus in ongoing debates that includes a range of defining criteria, which will not always be present in toto if the populist phenomenon is analysed empirically, but when a significant combination is found, it is reasonable to speak of a populist phenomenon. These criteria are a reference to popular sovereignty, the empty signifier of the people, the pretence to symbolically represent the whole of society by a part, charismatic leadership, the (in-)famous friend–enemy dichotomy and a strong notion of the political. The last criterion is particularly significant, and not widely acknowledged in the debates on populism, in that it stresses the role of constituent power. This is a significant dimension of many populist projects, but not sufficiently conceded in most research on the phenomenon (more on this below).
Another, very significant, addition to the debate is the book’s development of a political-sociological dimension, identifying different stages or manifestations of populism, relevant to different extents for distinct populist projects: spontaneous emergence, mobilization and social movement, populism as a political party, populism in government, populism as government, hybrid regime and authoritarian regime (these ‘stages’ are not, so it is claimed, to be taken as a set, predefined pattern or a kind of life trajectory of populist actors; rather, the argument is that reversals or skipping of stages may happen in specific cases). This significantly enhances comparative potential. Current debates frequently distinguish between left-wing and right-wing populism but do not always recognize the different ways in which populist projects emerge, their evolution and the specific dynamics of populism-in-government. Admittedly, some scholars have stressed the dimension of origins and forms of mobilization, referring to mobilization from above and from below. The identification of various phases with their own dynamics is a significant contribution to a political sociology of populism, which duly recognizes the civil society dimension.
Populist civil society
My focus here is, in fact, on the societal dynamics of populism. Arato and Cohen’s work is one of the few that stresses the societal, bottom-up dimension of mobilization. Their take on civil society seems however circumscribed, in that they ultimately appear to understand (despite remarks to the contrary) the stages of the populist phenomenon as part of a continuum which in its later stages results in populism becoming part of the political system, or in its very last stage, turn into authoritarianism. In my view, potential autonomous dimensions of civil society actors in their relationship with populist projects could be stressed more, including relations between civil society and populists-in-government, and the normative implications that the empirical analysis of populist movement behaviour may have for a democratic theory of civil society. Arato and Cohen stress that populist mobilization has a ‘telos of power’ and hence tends towards morphing into the form of political party (p. 53), while, once populists are in power, they need to maintain a link with civil society to remain credible. This also means that populism in its party guise often takes the hybrid form of a ‘movement party’.
What seems less of a point of attention is the role of civil society in its own right. Arato and Cohem stress that populists-in-power relate to mobilized society in a top-down manner, but there is no discussion of those civil society actors that are not fully the outcome of top-down orchestration (even if often they are, or at least there is a paternalist relationship) and tend to be (or have been) relatively autonomous. This relates to an emerging sociological discussion of populism in terms of ‘uncivil society’ (Alexander/Kivisoo/Sciortino 2020) and the distinction between ‘backlash’ and ‘frontlash’ movements (Alexander 2019). This debate is in my view highly important (even if the concept of uncivil society as such has significant problems). Some of the core dimensions of liberal democracy, including civil society and human rights, are exactly the dimensions that need rethinking in a process of democratization of democracy. The latter do not merely constitute a minimal – and unambiguous – core of democracy but rather may play a significant role in the emergence and diffusion of populism. Arato and Cohen stress how populist movements have some affinities with the ‘new social movements’ of the 1960s and 70s and have a certain democratic dimension in that they mobilize around ‘neglected demands’. Indeed, in a crucial passage in the book, they state: While “culture clashes” entail disagreements about appropriate social norms and status anxieties/losses (the demand side) are real, it is not the case that there exist no common cultural values shared by both sides of the divide. Indeed the claims of unfairness, discrimination, partiality, exclusion, unequal treatment, corruption, and the lack of voice, leveled at the “establishment” by populists in the name of (newly) marginalized groups indicate the continued existence of common cultural values and principles of justice – fairness, impartiality of law and public governance, inclusion, equality before the law, moral integrity of public officials, equal opportunity and voice, and social solidarity across differences.
This statement acknowledges the deep conflict and struggle that civil society is about and where currently populist movements are main players in the form of ‘counter-movements’. There is however little discussion of ‘uncivil society’ in its own right (the book does not mention the term), and as a force that might exist in interdependence with populist political parties, but may at times equally have a separate, autonomous existence, preceding in some ways the populist political phenomenon. For Arato and Cohen, populist movements seem to differ in their drive for political power. While they extensively discuss mobilization from below in civil society (p. 74 onwards) and acknowledge that ‘empirically the contrast between the dominant role of parties and that of societal self-organization cannot be eliminated’ (p. 47), the empirical discussion is predominantly focussed on the origins of political movements and mobilization in relation to the emergence of populist parties.
A more extensive engagement with the ‘dark side’ of civil society, and with the double usage to which liberal instruments may be put (see, for instance, Clifford Bob of human rights as shields and swords, Bob 2019), is, I believe, essential for a theory of civil society in that it problematizes the normatively informed notion of civil society as a basis of liberal democracy and highlights how the very same rights and means that are supposed to uphold liberal democracy may be utilized for opposite purposes, emphasizing the continuous struggle over democratic fundamentals (see Eisenstadt 1998).
A more intense discussion of uncivil society would also problematize the widespread acceptance of Mudde’s theory of populism as a ‘thin ideology’, in need of ‘host ideologies’ as well as Laclau’s notion of ‘empty signifier’. Whereas these theories hold in various instances of the populist phenomenon, they may not do sufficient justice to the deeper ideological commitments that some of the most significant examples of populism display. If we want to understand populist mobilization around ‘claims of unfairness, discrimination, partiality, exclusion, unequal treatment, corruption, and the lack of voice’ (p. 48), the ideological dimension of populism seems not always reducible to one of ‘thinness’. An insistence on ideological fluidity leads to insufficient recognition of the development of extensive, durable, ideologically informed networks, particularly clear in the context of right-wing conservative-religious parties. Here, the ideological dimensions cement alliances (including transnational ones), inform popular mobilization and create legitimation for the populist project. Such ideological dimensions equally have relevance for populism’s affinity with constituent power, in that the populist political projects are in some instances importantly infused with ideological components.
Populist constitutionalism
Arato and Cohen rightly pay extensive attention to the relationship between populism and constitutionalism. While this has become a major debate in recent times, it tends to be dominated by a form of ‘moral panic’ where particularly constitutionalists display a great anxiety towards populism as attacking the heart of constitutionalism. Analyses that go beyond such a moral panic, which often leads to a binary approach, portraying populism as the opposite of constitutionalism, are more than welcome. The relation of populism to law and constitutionalism is not clear-cut, as Arato and Cohen observe (p. 153). Whereas analyses of forms of ‘abuse’ and ‘autocratic legalism’ abound, there is much less consideration of a) tensions within liberal constitutionalism as such, which may relate to the emergence of populism; b) the interest of populists in law, human rights and constitutions, and the time and energy they spend to write and change constitutions, to defend and promote specific rights, while taking conspicuous interest in judicial institutions (in particular constitutional courts, but not only). Arato and Cohen engage intensively with these matters, both in empirical terms (looking at various instances of populist constitutional politics) and in conceptual and theoretical terms (is there such a thing as populist constitutionalism?).
Arato and Cohen importantly state that populists tend to be different from classical authoritarianism in that they do not seem to engage in ‘simply abolishing’ the regime they are opposed to (most of the times, liberal democracy) but rather try to resolve – or pretend to resolve – the most important tension within liberal constitutionalism, that is, between popular sovereignty and constitutionalism as negative constraint. Rightly so, they argue that this attempt often results in its opposite, that is, sharpening the tension between the democratic and the legal components of constitutionalism. This heightening of the tension is what the literature tends to focus on most: the erosion of rights, checks and balances and pluralism due to populist politics. Arato and Cohen want to go beyond this focus on the abusive side by keeping the question open whether populists ‘authentically aim at a different constitutionalism’ (p. 155). I fully agree with this approach, as I believe that it is by understanding the populist phenomenon and going beyond a denunciation of abuses, is a crucial precursor to the project of crafting an alternative approach to the democratization of democracy (as Arato and Cohen set out to do in the final part of the book). I wonder, though, if Arato and Cohen ultimately do not themselves somehow close the door to such a deeper understanding. While acknowledging the core tension in modern constitutionalism between popular sovereignty and legal constraints, they ultimately seem to opt for the latter as the ‘true’ and singular core principle of constitutionalism, by, for instance, citing McIlwain’s claim of constitutionalism’s ‘one essential quality’ in the form of a ‘legal limitation of government’ (p. 175) approvingly. While the negative function of constitutions is essential in modern democracy, one wonders what a de facto relegation to a secondary status of popular sovereignty means in the endeavour to assess populism’s relation to constitutionalism. The classical idea of co-originality and the insistence on a baseline of rights protection as the conditio sine qua non of democracy are powerful arguments. But the downside of the argument might be an underappreciation of tendencies in liberal constitutionalism that go against popular sovereignty, rendering its status notional and secondary. This observation does not make populist projects democratic tout court, but acknowledgement of the necessary co-existence of constraints and popular sovereignty in constitutionalism, and hence of the perpetual contestation around legal constraints, may help us to go a longer way towards understanding how populists manage to mobilize popular sentiments around their illiberal projects.
This brings us back to the issue of ideology. While the Muddian theory of ‘thin ideology’ and its idea of a floating nature of populist adherence to ideology appear of heuristic value in analysing populism, it tends to obfuscate some manifestations of populism that display a more continuous and durable relation to ideology. Perhaps the most convincing example is the forms of conservative right-wing forms of populism we find, for instance, in East-Central Europe. Populist crusades against the right to abortion, gender, LGBTQI rights and surrogate maternity appear not as temporary or opportunist ways of filling up the empty signifier of the people but rather part of a consolidated set of ideological ideas part of a larger political project. This is relevant for the populists-in-government, such as the Polish Prawo i Sprawiedliwość, but it equally relates to uncivil society. By way of example, the Polish populist turn can only be understood if read in a larger context of post-communist transformation in which the conservative right gradually mobilized against the Europeanist, liberal political forces. Some of the forces in civil society prepared the terrain for a populist turn in politics, without these forces, at least initially, being fully part of the political project. Such civil or uncivil society forces are further highly active in promoting a conservative, fundamentalist project that finds as one of its vehicles the populist party in power but is equally related to a global network of the Conservative Right, which increasingly attempts to expand its political project using core liberal-legal instruments in relation to legal mobilization (such as litigation or amicus curiae interventions) as well as lobbying within the European institutions.
To sum up, Arato and Cohen’s contribution to the debate raises the bar significantly and calls for a strengthening of critical-democratic approaches to populism. It invites us to deeply engage with the populist phenomenon and develop a critical theory of populism, which is solidly grounded in empirical analysis. Such critical thinking is indeed of essence in imaginatively re-assessing core concepts in relation to democracy, not least those of civil society and constitutionalism.
