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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. 

The rise in authoritarian populism poses an unprecedented threat to modern democracy, says 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.

“While the rule of law is complex, its raison d’être is to temper or moderate the exercise of power to avoid its arbitrary abuse,” the Gordon Samuels Professor of Law and Social Theory says. “Where 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.” 

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. 

“Use is elided with abuse, and the principles of the rule of law are deliberately and systematically trashed in its name… The result is an insidious parody of constitutionalism that undermines the integrity of democracy.”

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. 

Their increasing prevalence is evident in the 2022 elections of Victor Orbán in Hungary, Giorgia Meloni in Italy, and Ferdinand “Bongbong” Marcos Jr in the Philippines (who was elected after populist Rodrigo Duterte's term ended, and whose daughter is now Vice President). 

Prof. Krygier contributes to emerging international legal scholarship – a kind of “forensic pathology” as he calls it – 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.

“The 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,” 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’t seize power through violence, but through elections. 

“Unlike 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,” he says. “When such populists gain power, their rhetoric is inflammatory, polarising, authoritarian, and so are they.”  

Such rhetoric appropriates the ‘truth’, establishing diametric – ‘friend versus enemy’ – juxtapositions within public discourse. Populist regimes claim to represent the ‘real’ or the ‘true’ people, narrowly defined as those elements of the population that constitute their supporters. By extension, such populists become the ‘true’ upholders of the rule of law, wresting it from the abuse of ‘parasitic’ elites, those groups who occupy positions of economic and political influence within the status quo, Prof. Krygier says. 

“[Elites] are often [characterised as] over-educated, as living in big cities; they travel too much, they’re never ‘at home’ when they’re at home… Instead, they promote alien and degenerate ways of living, loving and thinking.” 

‘Foreign’ and ‘inauthentic’ in style and character, these elites – notably opposing political parties and legal entities – are cast as the ‘enemies’ of the people, he says. Populist parties then champion the people’s cause against such enemies, effectively mobilising their support with the strategic aim of consolidating power.

“Opponents aren’t 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.”

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 ‘anti-constitutional’ populism for this focused yet subversive engagement.

“They 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… The conditions of meaningful public opinion-formation – such as independent media, freedom of speech and assembly, civil and political rights – are deliberately and systematically threatened, ‘chilled’, and eroded.” 

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. “The rule of law is typically brought down by ‘a thousand cuts’, 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.”

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 “legal chicanery” constitutes a “dark art” with lethal consequences for democracy. 

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.  

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. 

Selznick was a rare thinker: a Hobbesian idealist, simultaneously concerned with conditions of survival (Hobbes) and hopes for flourishing (ideals), Prof. Krygier says. “He insisted that we should strive to realise both: recognise real constraints but refuse to ignore ideal potential” in the pursuit of enriched public engagement, he says. 

Selznick preached civility in communication, a value Prof. Krygier shares. “[Civility] is cool, not hot, detached, not involved,” Selznick writes, and as such, “it is a necessary condition for secure interactions” between diverse populations.

“In 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 – religion, nationality, race, for example – civil communication treads lightly, with special regard for the sources of personal identity,” Selznick writes.

This “cool” commitment to civility might well stand us in good stead, Prof. Krygier says.

“Our world is full of dark possibilities, repeatedly realised… [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.”

Written by Kay Harrison

Researcher