Facts & figures
Anti-constitutional populist regimes exploit the rule of law to validate, embed and extend their powers, says a leading global expert on the rule of law.聽
The rise in authoritarian populism poses an unprecedented threat to modern democracy, says聽Professor Martin Krygier AM from UNSW Law & Justice. A leading global expert on the rule of law, Professor Krygier says that while many contemporary populist regimes couch their actions in the rule of law, they are instead invested in its erosion.
鈥淲hile the rule of law is complex, its raison d鈥櫭猼re is to temper or moderate the exercise of power to avoid its arbitrary abuse,鈥 the Gordon Samuels Professor of Law and Social Theory says. 鈥淲here the rule of law calls for key powers to be checked, balanced and separated, authoritarian populist regimes seek to consolidate and concentrate them in their hands.鈥澛
This systematic violation of the rule of law is carried out through sophisticated legal argument that oscillates between pedantic adherence to and reckless abandonment of constitutional law, he says.聽
鈥淯se is elided with abuse, and the principles of the rule of law are deliberately and systematically trashed in its name鈥 The result is an insidious parody of constitutionalism that undermines the integrity of democracy.鈥
Professor Martin Krygier
Populist regimes have risen steadily over the last decade with an authoritarian populist party dominating in India since 2014 (Prime Minister Narendra Modi and the Bharatiya Janata Party (BJP)), Poland since 2015 (the Law and Justice party), Hungary (Fidesz) since 2010, and countries, such as the Philippines in Asia, as well as the spectre of Donald Trump in the United States.聽
Their increasing prevalence is evident in the 2022 elections of Victor Orb谩n in Hungary, Giorgia Meloni in Italy, and Ferdinand 鈥淏ongbong鈥 Marcos Jr in the Philippines (who was elected after populist Rodrigo Duterte's term ended, and whose daughter is now Vice President).聽
Prof. Krygier contributes to emerging international legal scholarship 鈥 a kind of 鈥渇orensic pathology鈥 as he calls it 鈥 on this modern phenomenon to better understand its scope and scale. His most recent book, Anti-Constitutional Populism, edited with Adam Czarnota and Wojciech Sadurski, was by the Review of Democracy. It addresses diverse issues arising out of populism, its key traits and drivers as well as comparative and theoretical reflections across different geographic and political contexts.
鈥淭he research investigates what has variously been called abusive constitutionalism, stealth authoritarianism, constitutional coups, autocratic legalism, abuse of the constitution, or twisting and turning of the rule of law,鈥 he says. Its forms are definitive and multifarious, yet they share some common elements.
Appropriating constitutional mechanisms to broker legitimacy & build power
In contrast to earlier anti-establishment regimes, authoritarian populist movements generally don鈥檛 seize power through violence, but through elections.聽
鈥淯nlike standard-issue coup-ists and putsch-ists, communists and fascists [who are] also anti-establishmentarian until they become established, these movements are not shy of elections. [In fact] they feed off them,鈥 he says. 鈥淲hen such populists gain power, their rhetoric is inflammatory, polarising, authoritarian, and so are they.鈥澛犅
Such rhetoric appropriates the 鈥榯ruth鈥, establishing diametric 鈥 鈥榝riend versus enemy鈥 鈥 juxtapositions within public discourse. Populist regimes claim to represent the 鈥榬eal鈥 or the 鈥榯rue鈥 people, narrowly defined as those elements of the population that constitute their supporters. By extension, such populists become the 鈥榯rue鈥 upholders of the rule of law, wresting it from the abuse of 鈥榩arasitic鈥 elites, those groups who occupy positions of economic and political influence within the status quo, Prof. Krygier says.聽
鈥淸Elites] are often [characterised as] over-educated, as living in big cities; they travel too much, they鈥檙e never 鈥榓t home鈥 when they鈥檙e at home鈥 Instead, they promote alien and degenerate ways of living, loving and thinking.鈥澛
鈥楩oreign鈥 and 鈥榠nauthentic鈥 in style and character, these elites 鈥 notably opposing political parties and legal entities 鈥 are cast as the 鈥榚nemies鈥 of the people, he says. Populist parties then champion the people鈥檚 cause against such enemies, effectively mobilising their support with the strategic aim of consolidating power.
鈥淥pponents aren鈥檛 shot, imprisoned or killed, though they are often sued. And though independent institutions, both public, such as courts and civil service, and private, such as [the] media, are targeted for take-over, they are rarely destroyed.鈥
Professor Martin Krygier
Once elected, authoritarian populist movements appropriate and transform constitutional mechanisms and institutions to validate, embed and extend their authority, earning the term 鈥榓nti-constitutional鈥 populism for this focused yet subversive engagement.
鈥淭hey devote major effort to pretend to act and justify their acts legally, while the legal institutions are gutted, neutralised, their personnel replaced, and then mobilised for the regime鈥 The conditions of meaningful public opinion-formation 鈥 such as independent media, freedom of speech and assembly, civil and political rights 鈥 are deliberately and systematically threatened, 鈥榗hilled鈥, and eroded.鈥澛
This collapse of the independent mediation and adjudication of law is typically difficult to decipher, playing out as it does in myriad covert ways, he says. 鈥淭he rule of law is typically brought down by 鈥榓 thousand cuts鈥, as [legal scholar] Tarunabh Khaitan says, with the cumulative result of bloodletting its ideals and principles on a grand scale. All with the active assistance of law... a pretence of fealty to formal [legal] rules to realise purposes antithetical to democratic ideals.鈥
Of course, there are instances of overt and vulgar abuse and gaslighting as well, he says; accusations, intimidation and disciplines are issued, but the power of this kind of 鈥渓egal chicanery鈥 constitutes a 鈥渄ark art鈥 with lethal consequences for democracy.聽
In pursuit of a civil society
For Prof. Krygier, the son of Eastern European refugees, the debate has personal resonance. His parents narrowly escaped the Polish death camps in 1939 fleeing to Australia after Nazi Germany invaded; his maternal grandparents died at the hands of the Nazis in Warsaw.鈥
Perhaps then it is no surprise that his research explores issues of injustice and inequality with a view to shaping public values. His considerations of the rule of law take a sociological and philosophical lens, influenced by the work of Philip Selznick, a leading American sociologist and professor of law.鈥
Selznick was a rare thinker: a Hobbesian idealist, simultaneously concerned with conditions of survival (Hobbes) and hopes for flourishing (ideals), Prof. Krygier says. 鈥淗e insisted that we should strive to realise both: recognise real constraints but refuse to ignore ideal potential鈥 in the pursuit of enriched public engagement, he says.聽
Selznick preached civility in communication, a value Prof. Krygier shares. 鈥淸Civility] is cool, not hot, detached, not involved,鈥 Selznick writes, and as such, 鈥渋t is a necessary condition for secure interactions鈥 between diverse populations.
鈥淚n truly civil communication, for example, something more is required than self-restraint and taking turns. An effort must be made really to listen, that is, to understand and appreciate what someone else is saying... [And] on especially sensitive issues 鈥 religion, nationality, race, for example 鈥 civil communication treads lightly, with special regard for the sources of personal identity,鈥 Selznick writes.
This 鈥渃ool鈥 commitment to civility might well stand us in good stead, Prof. Krygier says.
鈥淥ur world is full of dark possibilities, repeatedly realised鈥 [When] we confront just how perilous the circumstances of society and politics can be, norms and practices of cool civility among associates and strangers are precious.鈥