[1] As two veteran political scientists put it, for a political order to be democratic, it is not sufficient for the government to be chosen in free and fair elections, that is, to have a democratic pedigree.
It must also actually abide by the democratic rules of the game as defined by the constitution and other laws: [N]o regime should be called a democracy unless its rulers govern democratically. If freely elected executives (no matter what the magnitude of their majority) infringe the constitution, violate the rights of individuals and minorities, impinge upon the legitimate functions of the legislature, and thus fail to rule within the bounds of a state of law, their regimes are not democracies [2].

All three instances of ‘failing to rule within the bounds of law’ listed by Juan Linz and Alfred Stepan have occurred in Poland: the script was followed to the letter. Political authorities – both formal and informal, including the leader in all but name, Jarosław Kaczyński – have infringed the constitution on several occasions; the rights of individuals and minorities have been trampled on (for instance, through a politically discriminatory law on assemblies and through a law allowing the police to infringe privacy rights, both of which were passed after their constitutional review had been disabled), and the ‘legitimate functions of the legislature’ have been breached by the political takeover of parliament by a political majority which, for all practical purposes, has gagged the opposition and prevented any normal deliberation on the proposed bills.

For this reason, at least with regard to Poland, it is difficult to adopt Cas Mudde’s formula that ‘In essence, the populist surge is an illiberal democratic response to decades of undemocratic liberal policies’ [3]. For one thing, Mudde traces the populist appeal to a reaction against transfers of authority to supranational entities (such as the European Union and IMF) and also unelected national bodies such as central banks and courts – but neglects the fact that these transfers of powers themselves often had democratic support. So rather than viewing populism as being prompted by excesses of liberal democracy, it is closer to the truth to see it as responding to democratic deficits: there was not too much but too little of it. This led to victory by a grouping which paid lip service to democracy and legality (after all, Jarosław Kaczyński had never promised to destroy the court system, hollow out the rule of law, limit the right of assembly, etc.) while at the same time persuading its electorate that it is more sensitive to traditional values and societal concerns, including fears, anxieties and paranoias. The darker self in the people is retrieved and rehabilitated, and being attuned to it is presented as an ultimate victory of true democracy over the liberal, cosmopolitan elites.

Another point is that the democratic ingredient of populist movements has always been thin. The idea that populism is illiberal but democratic (perhaps even hyper-democratic) is simple but misleading, because illiberal themes in populism – in particular, the dismantling of minority rights and constitutional checks and balances – undermine democracy. Often, populists target instruments of the electoral process, including its institutions (electoral commissions, courts in charge of electoral disputes) and electoral rules (the boundaries of districts, limits on terms of office, etc.) to make it more difficult for the opposition to dislodge populist incumbents. This undermines democracy even in its thinnest meaning of securing alternation in power. Some scholars distinguish between populism’s nature and its likely effects; the former, we are told, is democratic, while the latter render it difficult for democracy to survive. But this is unconvincing: populism’s nature (for instance, viewed through the populists’ motivations), in so far as we can second-guess the populists’ true intentions, often reveals impatience with democratic procedures and a desire to construct a centralized, monolithic power structure, as evidenced, for instance, by Kaczyński’s fascination with a single, extra-constitutional centre of politically strategic decisions (centralny osrodek dyspozycji politycznej). We need not credit populists en bloc with good democratic motivations.

More generally, by rejecting effective checks and balances, populists undermine the subjection of democratic politics to the constitutional rules of the game. Furthermore, by denying equal moral status to members of groups they despise, whether recent migrants, Islamists, Latinos, atheists or simply political rivals, they strike at the value of political equality that is at the core of democracy. Majority rule derives its legitimacy precisely from the value of the political equality it serves (this voting method comes closest to granting each voter equal weight of her or his vote), and insofar as it is inconsistent with that value, it loses its normative bearings. The widespread tendency to characterize contemporary populisms as fundamentally democratic, or at least as not non-democratic, is therefore highly questionable, and assumes an arithmetical, purely majoritarian concept of democracy. It ignores the fact that the liberal pillars of democracy – the protection of individual rights, the maintenance of checks and balances, and constitutional restrictions on politics – are indispensable for the democratic process itself. It also ignores the right-wing populists’ distaste for representative democracy, and their claim to communicate directly with the people as a whole, over the heads of representative institutions.

This is partly due to the fact that various established institutions of representation are seen and dismissed as serving the interests of elites rather than of ordinary men and women. More importantly, for populists it is the mechanism of representation that distorts the true will formation of the people and introduces an irritating intermediary between them and the rulers that detracts from true democracy. Populists favour simple solutions, where alternatives are reduced to black-and-white stories, and they like quick solutions, as the frenzied pace of pushing through the main pieces of legislation in Poland under the Law and Justice Party (PiS) exemplifies. But simplicity and haste are anathema to the nature of the representative process, which calls for complex negotiations that allow all the stakeholders to find the optimal combinations among competing preferences and conflicting values. Reconsideration of provisional arrangements, amendments to proposals, finding the best replies to counterproposals, thought experiments and devil’s advocate arguments etc. – all these constitute the everyday texture of the processes of representation. Representation is not a time-slice reflection of the existing distribution of preferences but a difficult process of finding the best solution. Representative democracy, at its best, offers scope and opportunities for representatives of the people to listen carefully to each other, and to allow themselves to be convinced by an argument employed by their adversaries. This must mean at least a relative freedom from strict party discipline.

None of this happens even remotely in legislatures dominated by a populist executive. On the contrary, populism leads to the centralization of power because the executive is seen as the most perfect embodiment of the unitary political will of a homogeneous polity. Hence the distaste for the separation and dispersion of powers that is so characteristic of Kaczyński’s ideas about the state.

Another strikingly non-democratic characteristic of right-wing populism is its inherently exclusionary nature: exclusionary not only vis-à-vis the non-citizens (potential immigrants) but also those citizens who are not seen as ‘real’ Poles, Hungarians, etc. (or, in a memorable phrase used by Jarosław Kaczyński, those who are an ‘inferior sort’ of citizen), and who do not deserve to belong to the nation by virtue of their identity, views or conduct. PiS’s move towards delegitimizing the opposition, as evidenced for instance by drastic reduction of time for the opposition in parliamentary speeches, is a case in point. The exclusionary character of populism is not something merely contingent but is inherent to populism as such: if it claims to speak for the entire nation (as it often does), it must resolve the necessary clash between this claim and the visible presence of those who do not identify with the populists’ programme, by relegating them beyond the pale of the community.

Consequently, populists are anti-pluralist, not just in their political philosophy but also in their approach to institutions which must distinguish between ‘real’ and ‘false’ Poles (or Hungarians, Czechs, etc.). Only the interests, preferences and identities of the ‘real’ ones matter (or, under a weaker version of the ‘unequal standing’ theory, they matter more). This is the main core of populists: they reassure their supporters that they are the only holders of the truth, and disregard the opponents as not belonging to the same political reality. In a pluralist system, dialogue, compromise and transactional politics are all necessary because there are other parties with which dialogue is necessary; populist-style politics is unilateral and monologist. In an anti-pluralist paradigm, ‘dialogue’ and ‘compromise’ are replaced by the winner who ‘takes all’ because the winner better personifies the unitary interest of the people.

Illiberal, anti-representative, exclusionary, anti-egalitarian and anti-pluralist … One wonders how much of the kind of democracy that is compatible with the conditions of the modern world (marked by pluralism, diversity and a growing demand for inclusion) is left after all of populism’s characteristics are taken into account. To be blunt: what is democratic about an illiberal, exclusionary and anti-pluralist ‘democracy’? One may recall that Fareed Zakaria, in his classic article in which he outlined the difference between democracy tout court and ‘liberal democracy’, included this caveat to a description of classical, merely electoral, democracy: ‘Of course elections must be open and fair, and this requires some protections for freedom of speech and assembly’ [4]. Huge work is being done by the word ‘some’. The protection of freedom of speech and assembly extends to several other freedoms, also indispensable in the democratic process, such as freedom of religion and the right to privacy. The degree of protection of those freedoms matters, as does the independence of courts and the robustness of the constitutional review in maintaining and implementing those rights in accordance with established constitutional meanings.

To be sure, we need the right language to mark the distinction between an autocracy that cares about popular support and an autocracy that relies on naked power and oppression. The characteristic of ‘populism’ does the job of marking this difference. But it is not as if we have two equally legitimate conceptions of democracy, a liberal and an illiberal one. Illiberal democracy cannot survive over time as a democratic system because the democratic process presupposes the protection of liberal rights. Without them, it is all too easy for a democratically elected majority to distort the process to such an extent that future majorities will be unable to gain the political status they need to govern. In this sense at least, majority rule without liberty rights is unlikely to persist. Liberal democracy is not one of a number of interpretations of democracy but a composite concept in which both the adjective and the noun describe two mutually interconnected preconditions (rather like in ‘free will’, where the adjective ‘free’ does not restrict the scope of the noun but rather amplifies its meaning). The best philosophical articulation of this interconnectedness I know of is offered by Jürgen Habermas, who refers to: the intuition that, on the one hand, citizens can make adequate use of their public autonomy only if, on the basis of their equally protected private autonomy, they are sufficiently independent; but that, on the other hand, they arrive as a consensual regulation of their private autonomy only if they make adequate use of their political autonomy as enfranchised citizens [5].

The intuition of which Habermas speaks explains why democracy (the citizens’ use of public autonomy, or the ‘freedom of the ancients’) is impossible without strong protection of individual rights (‘freedom of the moderns’), and why the interconnection is ‘internal’ to both. Just as there cannot be a truly democratic process without liberal safeguards, liberal rights only acquire a socially legitimate meaning in the context of democratic deliberation, including a judicial interpretation conducted against the backdrop of a larger democratic system of government.

Perhaps the concept of ‘plebiscitary autocracy’ is more adequate for describing a state such as the one likely to emerge from the PiS rule: there are by-and-large free and regular elections though not necessarily fair due to some restraints on democratic rights such as restrictions on assembly and the media, various ways of delegitimizing the opposition, unabashed pro-government propaganda in public media and the politicization of the institutions that manage the electoral process. With those in power controlling all the levers of government and suffocating both the opposition and pluralism in the media, election days are a plebiscite in favour or against the ruling elite. There is, however, no accountability and no subjection of the government to effective constitutional constraints between elections (which renders the system non-democratic, except for the brief electoral episodes).

The plebiscites are about whether the electorate approves of the governmental disregard for the constitution in the period between elections. By providing generous welfare provisions, an elaborate system of patronage and spoils, a sense of pride based on restrictive-nationalistic rhetoric and a sense of protection based on the fear of immigrants, the government posits to the voters a Faustian bargain for the net benefit of confirming the government in power despite its constitutional non-compliance. Part of the bargain is about dispensing with strong and independent courts, because such courts are not vital for a party that confidently controls all the branches of government and does not anticipate an imminent defeat, in which case such courts would be helpful to it. This confirms observations by a number of scholars that courts are strong when there is a robust rivalry among competing political forces, while they are vulnerable when there is strong control by a single dominant party. The latter scenario is the direction in which the Polish system is quickly evolving – one may say, degenerating – these days.

Such a diagnosis, though, is made more difficult by the fact that the Polish transformation operates without any revolutionary rhetoric and without an outright destruction of the institutions. There is no revolutionary rhetoric employed by the winners – no overarching utopia – but instead a systematic taking over of one institution after another by cadres loyal to PiS and, in particular, to its leader. We do not know what the finalité of this movement is – or at least, we are not being told. Perhaps there is none, perhaps all that matters is the mere fact of unrestrained power, or perhaps there are many finalités pursued by different factions within the ruling elite. The trajectory of PiS’s ‘reforms’ is a relentless movement towards colonization of the state. But other than some banalities about restoring dignity to hard-working people, there is no grand design that would alert us to PiS’s revolutionary (or counter-revolutionary, if you prefer) zeal. Polish democratic backsliding does not have an ideological blueprint. What it has, and what is odious about it, is an attitude, a particular sensibility. Literally speaking, Polish institutions are not being dismantled or destroyed or demolished but are instead being hollowed out, eroded and emptied: their sense and meaning that confer value on them are all but lost, but their shells are maintained. For a spectator, this creates the illusion of business as usual, while in fact, the institutions have been thoroughly colonized by the governing party.

Wojciech Sadurski

[1] This essay is based on parts of Chapter 9 of my book Poland’s Constitutional Breakdown (Oxford University Press 2019).

Footnotes:
[2] Juan J. Linz and Alfred Stepan, ‘Toward Consolidated Democracies’ (1996) 7/2 Journal of Democracy14, 15.
[3] Cas Mudde, ‘Europe’s Populist Surge’, (Nov/Dec 2016) 95 Foreign Affairs 25, 30.
[4] Fareed Zakaria, ‘The Rise of Illiberal Democracy’ (1997) November/December Foreign Affairs 22, 25, emphasis added.
[5] Jürgen Habermas, ‘On the Internal Relation Between the Rule of Law and Democracy’ (1995) 3 European Journal of Philosophy 12, 18.

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