Author interview: Constitutionalism under Stress

Uladzislau Belavusau & Aleksandra Gliszczyńska-Grabias

University of Amsterdam & Polish Academy of Sciences

Tell us a little bit about the book 

Constitutionalism under Stress emerged as an academic response to a growing global phenomenon manifesting itself through multidimensional populist attacks on the constitutional order and the rule of law. We felt that the time had come to gather critical reflections by leading constitutional scholars about the challenges posed by such a “stress imposed on constitutionalism” in an edited volume. Furthermore, the time had equally come to reflect on comparative constitutionalism in Central and Eastern Europe through the lens of outstanding legal scholar Professor Wojciech Sadurski, whose writings have anticipated and scrutinized the current decline of liberal democracies and populist challenges to the rule of law in the region. We designed this book, therefore, to honour his remarkable legacy and celebrate his anniversary in 2020. 

In what ways was Prof. Sadurski’s work central for you throughout the course of the project? 

Wojciech Sadurski's work has chronicled the transition from concern for basic human rights under authoritarian rule to the challenges of democratic governance. The compelling rights discourse of an earlier period gave way to claims of abuse of majoritarian prerogatives as the hopes of liberal democracy encountered the power of illiberalism. The theoretical responses offered for the preservation of liberal democracy in this book, in light of the current turbulence regarding the rule of law in the region, produces, as we hope, a far reaching and effective reference tool on matters of constitutional capture and illiberal democracy. Editing of this book represented not only an intellectual challenge and scholarly honour for us, but was also an expression of our personal gratitude to Prof. Sadurski, who has been a source of invaluable support, advice, and assistance in our academic endeavours for many years. He has profoundly influenced the selection of our research themes and encouraged us to step off the beaten tracks and venture into the novel and challenging but fascinating territory of memory laws.  

The book also applauds his legacy as an iconic teacher on several continents, from Europe to Australia and North America, and as a populariser of liberal theory, freedom of speech, and comparative constitutionalism. The volume consolidates contributions by his numerous colleagues and friends around the globe in admiration of Prof. Sadurski’s didactic style, tireless work, civic dedication, and priceless commentary influencing the research of several generations of legal scholars. Furthermore, the volume includes chapters written by his former doctoral students at the European University Institute in Florence. 

What challenges did you face in writing the book?

Our major challenge was to create a holistic volume whose chapters logically and seamlessly connected with one another. We aspired that these chapters – despite covering divergent topics and case studies – would contribute a ‘common story’ that builds on both Prof. Sadurski’s research themes, and the topical areas in the study of the rule of law and liberal constitutionalism. We also tried to reach a fair ‘geographical division’ covering the countries where the problems raised in the book have been most pertinent. We want to mention here, however, that the accomplishment of this book project was to a great degree possible due to the professionalism, support and reliability of the Oxford University Press. Their assistance allowed for the successful completion of the volume under a remarkably short span of time, despite the ongoing COVID-2019 pandemic. We very much hoped to present this book to Wojciech (on time for his anniversary) and the academic public in the summer of 2020 during the I-CONs conference in Polish Wrocław, but it was postponed till 2021 due to the pandemic. 

What do you hope to see as the book’s contribution to academic discourse and to constitutional or public law more broadly? 

Our book intends to provide a full overview of the crucial dilemmas that arise when dealing with the decline of liberal democracies and the populist challenges to the rule of law across Europe. It is worth mentioning that both of these events were predicted by Sadurski early on in his analysis of Jörg Haider affair in Austria and the role of Article 7 TEU in the Amsterdam Treaty (1997). The major themes of the chapters in the book, thus, concern populism and democratic decline in CEE, the EU’s role vis-à-vis the rule of law, and liberal constitutional and militant democracy: constitutional review and public reason. This coherent focus on the themes standing at the forefront of contemporary constitutional studies ensures a balanced and expansive coverage of the key problems facing liberal democracies, and can be applied to CEE countries and beyond. Moreover, we believe that this volume represents an academic step forward: it transcends the celebration of Professor Sadurski’s major academic contributions by linking his pioneering writings, inter alia on Central and Eastern Europe (CEE), to core dilemmas in the rule of law in Western democracies. We thus hope that this book will be of practical usage and will be widely referenced on matters of constitutional capture and illiberal democracy, given the enormous topicality of this subject both in the current academic literature, political debates and media. 

You introduce the terminology of ‘mnemonic constitutionalism’ in this book project, can you explain this term in the context of the rule of law decline? 

Perhaps to give the most explicit examples, the rule of law backsliding in Hungary and Poland has occurred hand-in-hand with the rise of nationalist memory politics and so-called ‘memory wars’. This populist politics of memory has articulated itself through ‘mnemonic constitutionalism’, i.e. the elevation of the legal governance of historical memory to the constitutional and legislative level. We define ‘mnemonic constitutionalism’ as a form of legal governance that encompasses, yet transcends, pure measures against genocide denialism and statutory memory laws. Mnemonic constitutionalism places the authority and legitimacy of a state into the boundaries of a certain historical paradigm, whereas current and future attitudes and behaviours of state actors derive from and are limited by moral lessons of the past. Within mnemonic constitutionalism, the historical past becomes the foundation of collective identity prescribed by either the national constitution itself, or by foundational legal provisions such as citizenship laws or statues shaping collective identities by virtue of imposing specific understandings of the historical past. Without explicitly identifying this realm of law-making and without necessarily changing the constitutional text, we claim that the new populist regimes in CEE perceive and utilise this invisible mnemonic constitution as an ideological foundation for their ‘illiberal democracies’ and as justification for their current political choices.  

What is worth noting here is the fact that various forms of mnemonic constitutionalism have for sure existed in the past, for example within the constitutions of postcolonial and transitional democracies distancing themselves from their past. However, the recent threat of mnemonic constitutionalism manifests itself in the outright populist abuse of historical narratives to justify a new regime that is hostile to rule of law standards of equality, judicial independence, and pluralism of opinions. A singular, state-imposed version of the past events lies at the core of this phenomenon. Though this book project focuses primarily on the democratic crises in the Central Europe, the relevance of mnemonic constitutionalism extends far beyond in Eastern Europe and elsewhere. In Russia, for example, the recent 2020-amendments to the constitution and the earlier implementation of punitive memory laws have sought to construct a heroic narrative of Russia as the liberator of Central and Eastern Europe and to obscure the Soviet-Nazi occupation of Poland in 1939. Moreover, Israel has also shaped a strong unwritten ‘mnemonic constitution’ central to which is the idea of a historic state and religious community attributed to a certain territory and fortified by a powerful ‘law of return’, i.e. a specific citizenship paradigm privileging Jews as the welcomed citizens of a ‘reborn’ state.  

What generalist tendencies do you see characteristic of the rule of law decline? 

Currently we observe a somewhat disturbing state of affairs in constitutional law where, it seems to us, the public has started getting used to the constant, overt failure to respect the rule of law, which manifests itself even in ignoring – as in the case of Poland – of the decisions of the Court of Justice of the European Union and other violations of constitutional order in democratic states, which until now were characterized by only authoritarian countries. Hence, from the very start we knew that these issues had to be placed at the centre of our book. Thus, the starting chapters of the volume discuss how the absence of credible liberal politico-economic alternatives makes it easier for populists to seize political power. This is corroborated and expanded by the subsequent chapters that explain how institutional weakness makes it harder for the judiciary to navigate disputes between the branches of power and blocks an important venue for the protection of fundamental rights. These characteristics, set against the backdrop of increasing populism and nationalism, enable certain political groups to reconstruct even historical narratives while interfering with fundamental rights and the rule of law. This process results in a “vicious circle”, wherein some of the very foundations of what we until recently called liberal democracy and respect for the rule of law are undermined and destroyed. And perhaps even much deeper – the foundations for the protection of human rights and the values ​​and principles that, as we thought, were ‘given’ to us once and for all. 

Why did you choose the renaissance painting of ‘Saint Michael’ for the book cover? 

Perhaps the most special – and incredibly prolific in terms of publications and novel ideas – epoch in Wojciech’s academic itinerary falls in his ‘Tuscan years’ when he was a Professor and subsequently the head of department at the European University Institute in Florence (1996-2006). Wojciech’s friends and colleagues are aware that this Renaissance city holds a special place in his aesthetic imagination and – together with New York City and Warsaw – has been a cradle for inspiring his writing. We find this unsurprising because the Renaissance, with its rise of ancient intellectualism heralding the triumph of individualism over Medieval obscurantism, suits the personality and style of Wojciech’s writings, which have consistently argued in favour of individual freedoms. Therefore, for the cover of this Festschrift, we chose the image of Prof. Sadurski’s favourite Renaissance painting ‘Saint Michael’ (1454-1469) by Piero della Francesca (National Gallery, London), originally created for a church in a small Tuscan town. Saint Michael is portrayed as a winged young man dressed as a Roman soldier. With one hand he holds a sword with which he has just beheaded the monster that is lying at his feet, and he holds the monster’s head in his other hand. The image of Saint Michael, praised in Judeo-Christian tradition as the leader of the forces of heaven in their triumph over the powers of hell, suits the theme of this volume, namely investigating constitutional capture and the ongoing fight for liberal democracy and the rule of law. The consistently brave and open fight of Poland’s academic Saint Michael, Wojciech Sadurski, has earned him the admiration of many and, predictably, and army of influential foes amongst those supporting the current right-wing regime in Poland (and elsewhere in CEE). Several proceedings – both civil and criminal – are currently pending against Wojciech in Warsaw, that led to a wide mobilization of academic community in support of Prof. Sadurski by virtue of numerous blogposts, joint support letters and even a popular hashtag on Twitter, #WithWoj.  

Dr. Uladzislau Belavusau is Senior Researcher in European Law at the T.M.C. Asser Institute, University of Amsterdam

Dr. Aleksandra Gliszczyńska-Grabias is Assistant Professor at the Institute of Law Studies of the Polish Academy of Sciences.