‘False’ Populists’ Abuse of Majoritarianism and Political Constitutionalism

About the use of populist rhetoric by Viktor Orbán and his government see a more detailed description in Halmai (2019), pp. 296–313.

It is the irony of fate that due to these more stringent conditions, the only referendum that the Orbán government initiated—one against the EU’s migration policy—failed exactly because of the new validity requirement.

Andrea Pin argues that supranational courts are partially also responsible for the rise of populism by judicialization of political choices and replacing national debates and rules. In my view this critique does not apply in the case of Member States of the EU, such as Hungary and Poland, where the democratic process is not operating satisfactorily, and the political institutions of the EU seem to be unable or unwilling to act. Here the CJEU or the ECtHR for those matters, despite their otherwise problematic de-politicized language, can be the last resort to enforce compliance with European values. See Pin (2019), pp. 225–244.

The English-language translation of excerpts from Orbán’s speech was made available by Hungarian officials, see e.g., Financial Times: Brussels Blog, 16 March 2012.

Available at http://​www.​kormany.​hu/​en/​the-prime-minister/​the-prime-minister-s-speeches/​address-by-prime-minister-viktor-orban-in-the-debate-on-the-so-called-sargentini-report.

The term ‘false’ populism was used by Isaiah Berlin defining “the employment of populist ideas for undemocratic ends”. See Berlin (1968), p. 10.

Andrew Arato and Jean Cohen, analysing the normative theory of left populists, Ernesto Laclau and Chantal Mouffe, go even further to claim that left populism also cannot avoid the authoritarianism inherent in the strategy and logic of populism despite the inclusionary and democratizing projects of the left movements it attaches to and despite the democratic socialist rhetoric of left populist leaders and their organic intellectuals. See Arato (2013), pp. 143–172, as well as Arato (2019a), p. 26, and Cohen (2019), p. 26. In my view this is certainly true for Latin American populists from Peron through Morales, Correa, till Chavez and Maduro, but not necessarily for European left populist parties, such as Podemos, Five Star and Syriza. The last two did not even show serious authoritarian pursuits while being in power. Indeed, support for this point is provided by Andrew Arato himself in a paper in which he discusses how populist governments dismantle constitutional courts. None of the European left populist governments are subject of the comparison. See Arato (2019b), pp. 318–341.

This is what Viktor Orbán’s Party did after winning the first still democratic election in 2010.

About the details of the emergency measures of the Hungarian government see Halmai and Scheppele (2020a, b).

See a detailed analysis of the new emergency power written by Halmai et al. (2020a).

See Halmai et al. (2020b).

See this epigrammatic definition of democracy in Przeworski (1986), p. 58.

See the term used by Scheppele (2018), p. 545.

https://​rmx.​news/​article/​article/​hungarian-government-outraged-after-donald-tusk-claims-prominent-nazi-would-be-proud-of-pm-orban.

Halmai (2020).

Pokol (2011).

Bruce Ackerman distinguishes between three models of democracy: Monistic, rights fundamentalism, in which fundamental rights are morally prior to democratic decision-making and impose limits, and dualist, which finds the middle ground between these two extremes, and subjects majoritarian decision-making to constitutional guarantees. See Ackerman (1992).

Lijphart (1999).

Sartor (1997).

Ackerman (2000).

See the term in David Law, Mila Versteeg, Sham Constitutions, California Law Review, 2013.

Cf. Norton (2003), p. 544.

See Judge (2004), p. 691.

Cf. Ewing (1999).

See Flinders (2002), p. 62.

The ‘notwithstanding clause’ of the Canadian Charter of Rights and Freedom allows governments to enact legislation despite being in violation of certain sections of the Charter, like freedom of expression and assembly, or the right to equality.

See for the opposite view Corso (2014).

The term refers to judges whose appointment occurred through violation of the legal rules.

Morawski (2017).

Czarnota (2017).

See Stumpf (2014), pp. 244–249.

See Varga Zs (2019), p. 16.

Pokol (2017).

Vincze (2013), p. 13.

See Pócza et al. (2018), Chapter 5.

Analyzing Thomas Mann’s novel Mario and the Magician, written in 1929, Parker draws the conclusion for today that, “the point is to get out and take part in politics ourselves, not looking down from a ‘higher’ pedestal, but on the same level with all of the other ordinary people.” Parker (1993), p. 583.

See Gardbaum (2013) about the new model. This model has also come to be known by several other names: “weak-form of judicial review” (Tushnet 2003, p. 2781); “weak judicial review” (Waldron 2006, p. 1348); “the parliamentary bill of rights model” (Hiebert 2006); “the model of democratic dialogue” (Young 2009); “dialogic judicial review” (Roach 2004); “collaborative constitution” (Kavanaugh 2003).

Fusaro and Oliver (2011).

See Győrfi (2016).

See Gardbaum (2013).

About the Romanian crisis see Perju (2015); Iancu (2015).

Lálik (2016).

The same playbook was also used outside the region, in Turkey by Erdoğan and in Venezuela by Chavez.

See this requirement of political constitutionalism in Castillo-Ortiz (2019), p. 64.

As Wojciech Sadurski rightly points out the Polish governing party, PiS obtained 18% of the votes of all eligible voters. See Sadurski (2019), p. 1.