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Friday, May 24, 2019 - 9:30am
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Friday, May 24, 2019 - 9:30am to Saturday, May 25, 2019 - 4:00pm

The Department of Legal Studies cordially invites all to a workshop on

‘They, the people’
People, Popular Sovereignty and the Constitution of Illiberal Democracy

May 24 – 25, 2019

Opening remarks by Michael Ignatieff, President and Rector (CEU) on 24 May 2019 at 9.50 a.m.

References to people, and their will, are central for emerging illiberal democracies. This workshop intends to bring together scholars of different disciplines to discuss the theoretical and practical consequences of the use and instrumentalization of such diffuse concepts. As a starting point, it is argued that the potential of abuse lies in the inherent uncertainty of the very concept of the people. Recipes for stopping the demise of liberal democracy with reference to the people (an actor at large) are equally problematic for this very reason.

Democracy cannot exist without people -- but democracy can be destroyed by people.
Liberal constitutions are based on the assumption that people have constituent power and that The People is the ultimate source and subject of power. But what if people turn against the foundational assumptions of the liberal social and moral order, denying fundamental underlying conventions of decency and evidence based decision-making? Isn’t it the case that constitutional democracy (or at least some democratic theories) indulge in the idolatry of people? What if the people construes itself in a way that disregards liberal values, does not wish to live according to the norms of tolerance or wishes to be guided in a way that in certain matters borders submission? What if people honestly believe that a restrictive order is freedom in security, without classic violent oppression? And what if “the people” are construed by illiberal political actors as enemies of the constitution and their own liberty?

Democracy is considered a supreme political formation because of the equal opportunities it promises to all the participants of the political process.1 The functioning of (liberal and illiberal) democracy depends on a prior question: who constitute the “demos.” The populists who are building illiberal regimes and wish to perpetuate their own power through institutional intend to impose an exclusionary vision of people on society. To do so, they deny the legitimacy of their opponents: political opposition becomes treason resulting in a de facto exclusion from the body politic.

The Schmittian construction of the proper ‘people’ as the opposite of their enemies remains ambiguous at best, but for reasons to be identified it resonates in the public even if the rules of inclusion and exclusion along an “us vs them” dichotomy remain murky. The surprising thing about populist illiberal democracies is that legally, the opponents of the regime remain members of the community, they may even have a voice, they may even run in elections – as long as their voice is muffled. Such silencing occurs with the monopolization of the public discourse, through limiting access to information as well as access to the means of communication, and of course, through government propaganda. The resulting victory is secured through electoral manipulation. This thin electoral veneer is easy to mistake for democratic legitimation.

‘People’ as sovereign becomes particularly problematic in what Umberto Eco called Ur-Fascism, a state of mind, power and culture that characterizes emerging populist authoritarianism. Here the leader “knows that his force is based upon the weakness of the masses; they are so weak as to need and deserve a ruler.” If the reality of the people is “masses” how can the people function as the basis of sovereign power?
Beyond the circularity of the definition of the people, contemporary political societies face a practical challenge. In the last decades, democracy became the preferred form of government not only because it makes the participation of people possible (input legitimation), but also because it leads to prudent decisions (output legitimation). With the successes of populism (and other forms of mobilization leading to electorally legitimized autocracy) the people are turned against democracy through the institutional architecture and procedures of constitutional democracy. People, their preferences and the rationality of their choices cannot be trusted unconditionally, yet, the preconditions of the rationality of collective choices seem to be absent (or changing) thanks to the echo-chambers of modern communication.
It is argued that these phenomena occur in societies where there is no democratic tradition. Leaving aside the uncertainties of what constitutes ‘democratic tradition’ and how old the tradition should be (two peaceful changes in political leadership?; two decades?; two hundred years?), this assumption seems to contradict certain facts. The voters supporting Brexit were not driven by a rational pondering of arguments for or against Britain leaving the UK. They made a highly emotional decision, driven by anxieties and prejudices intensified by identity politics. Does this mean that democracy is based on the implicit foundation of emotions that may turn against it? And why do populists or religious fundamentalists have emotions on their side? Are they better at playing with the emotions of people? Why are people, despite of knowing that a certain populist leader constantly lies to them, still supporting him? It is hardly the case that such leaders are speaking truth to power when they bash the elites and the establishment.
This takes us to political emotionalism and to its institutional-legal consequences. Populists, if in power, do not only rely only on emotional politics. As the examples of Hungary or Poland, but also of Latin American countries such as Venezuela, Bolivia or Ecuador show, populist leaders have also used electoral laws to form the people that will most probably keep them in power. As a result, people becomes the product of the electoral system and franchise: the electoral system transforms people for the purposes of political will formation. This is certainly not a guarantee for fair representation, not to speak of gerrymandering which is much more widely tolerated than is recognized.
When combined, these uncertainties and shortcomings of ordinary representative democracy can perpetuate populist power. These practical phenomena once again indicate that the concept of “the people” is inherently problematic. In order to understand the place and use of people in liberal democracy, we also have to start with exploring the ambiguity of the concept and expose the causes and consequences of this ambiguity.

Professor András Sajó
Professor Renáta Uitz
Convenors, CEU Legal Studies, Budapest