1 Introduction: is liberal democracy really the only way?
‘Democracy is in danger’ is a platitude in today’s mainstream – either in media, politics or academia. Experts, journalists and politicians are pointing fingers at Trump, Brexit, Orbán and mourn democracy as such, because people’s democratic decisions led to ‘undesirable’ results. Today, democracy means something different from popular sovereignty exercised through democratic decisions of the people.
Democracy today exclusively means liberal democracy. And ‘the crisis of liberal democracy is not necessarily a crisis of democracy as such’.Footnote 1
This is the starting point of Philip Manow’s new book, Unter Beobachtung. Die Bestimmung der liberalen Demokratie und ihrer Freunde (‘Under Surveillance. Defining liberal democracy and its friends’). The German political scientist contends that it is the new, exclusive understanding of democracy as liberal democracy that created its own enemies, such as populism. Moreover, this liberal understanding of democracy became the mainstream only after the democratic transitions of 1990.
By liberal democracy, Manow primarily means an institutional set-up with strong constitutional jurisdiction which restricts the powers of democratically elected parliaments. He received harsh criticism at homeFootnote 2 because his book can be understood as a denunciation of a cornerstone of German constitutionalism, namely the principle of militant democracy. Militant democracy embodies the idea that ‘pre-emptive, prima facie illiberal measures’Footnote 3 can be adopted to prevent the democratic regime from being destroyed from the inside. In Germany, militant democracy is not just an abstract debate among scholars, but an integral part of the constitutional order,Footnote 4 where the ‘free and democratic basic order’ is a constitutionally protected good, safeguarded by the Federal Constitutional Court.Footnote 5 The free and democratic basic order might even be the basis for banning parties, which is a recurring idea on the agenda concerning the far-right AfD, most recently raised by a group of legal scholars.Footnote 6 However, until now, only the successor parties of the communist and Nazi parties have been banned, both back in the 1950s.Footnote 7
This review proceeds as follows: in Section 2, I will summarise and reflect on the author’s criticism of liberal democracy and strong-form judicial review as an axiom. Manow’s main argument against strong constitutional courts is that they suffocate politics and therefore contribute to the success of populism. So, he asks a rhetorical question: who protects politics from law? (p. 66)
Rhetorical questions are not required to be answered, so I might be excused if I answer it only partially: namely, it is certainly not populists from whom the protection of politics from law can be expected. In Section 3, I will argue that populists’ promise for re-politicisation and re-democratisation is hardly credible, considering that once in power, they weaken not just counter-majoritarian institutions but also majoritarian ones. In this regard, I will bring some examples from Hungary, long considered Europe’s populist stronghold until the recent defeat of its populist Fidesz government.
In Section 4, I will add some legal-technical context to the liberal depoliticisation described by Manow. I will argue that liberal constitutionalism generated rights inflation by removing certain sensitive policy-areas from the realm of politics and reframing them as fundamental rights issues, and by extending the proportionality test to cases where fundamental rights collide not with another fundamental right but with more abstract interests. I will refer to some examples primarily from Manow’s country, Germany, which is known for its strong constitutional court and high fundamental rights standards.
In concluding Section 5, I will argue that while reinforcing the electoral dimension of democracy is indeed desirable, as Manow suggests, some minimal safeguards are needed to uphold the real chance of voting out governments. I will also point to a current problem: how undue interference with elections poses a challenge for trust in the political system and tempts judges to decide on the fate of democracy.
2 The suffocation of politics through liberalism
Were there such things as enemies of liberal democracy before 1990? – asks Philip Manow right at the beginning of the book. He then proceeds to dedicate the introductory chapter to the explanation of why there were not. Because liberal democracy became the norm only after 1990, it redefines what counts as deviation (p. 18). If liberal democracy created its own enemies, that would explain why there are so many of those enemies today, he ironically remarks (p. 16). One of the most prominent of those enemies is undoubtedly populism. ‘Populism is a disease that was generated by a new (liberal) understanding of democracy’, as Manow summarises (p. 26).
In chapter 2, Manow provides a conceptual and contextual analysis of democracy, elaborating how the meaning of democracy has shifted:
‘Some say democracy and mean popular sovereignty, others say democracy and mean the separation of powers. But lately those who mean the separation of powers also say that popular sovereignty alone is not real democracy, but on the contrary, it represents a constant danger for democracy’ (p. 68). So, in liberal democracy, there is a wide agreement expressed: that democracy must necessarily be put under surveillance, primarily by extensive judicial control (pp. 46–47). Chapter 3 is dedicated to the discussion of strong judicial control over parliaments and the conflict between politics and the constitutional judiciary.
It is judicial review that stands at the centre of Manow’s critical analysis, as the main institutional feature of liberal democracy. His criticism is not exclusively addressed to constitutional courts in general, but rather to the axiomatic assumption that a true democracy can only be operated with powerful constitutional jurisdiction. In his interpretation, constitutional courts are political actors: political majorities are stimulated to restrict the powers of these courts only after the courts regularly use their powers to contradict the political majority (p. 92), citing examples from Central and Eastern Europe, Turkey and Israel (pp. 120–24). Manow considers constitutional courts as political actors that were established with the aim of fundamentally changing the game for political power (p. 92). Constitutional courts indeed act in the political sphere when exercising norm control, annulling legal norms or deciding electoral disputes, but they are often tasked also with ‘everyday’ cases, such as the constitutional review of judgments of ordinary courts.Footnote 8
In chapter 4, Manow critically looks into the argument that liberal democracy is a common basis of Western constitutionalism since the end of World War II. Contrary to this narrative, Manow argues that liberal democracy as an institutional set-up became mainstream only in the 1990s, with the democratic transitions of post-socialist countries, and it was canonised only twenty years later, around 2010 (p. 147). He lists several examples of Western European countries (such as France, Italy and Austria) where constitutional courts began to actively exercise judicial review and develop their role as influential veto players long after their establishment, only in the 1980s or 1990s (pp. 153–54). He concludes that in Western Europe, it is in fact only Germany that established a ‘self-disciplined democracy’ after 1945 (p. 153); even though the constitutional order of the Basic Law (Grundgesetz) was set up under the tutelage of the allied powers and intended to last only temporarily.Footnote 9
The empowerment of constitutional courts (which he calls constitutionalisation) began in the early 1990s, when new post-socialist democracies implemented constitutional systems with strong constitutional jurisdictions (partly motivated by the fear that the people would bring communists back into power), and when already existing Western constitutional courts started to use their competences more intensively (pp. 102–107).
The dispute about constitutional review is of course not new: it has its roots in the famous debate between Carl Schmitt and Hans Kelsen about whether the constitution is a political product of the constitution-making powerFootnote 10 or a basic norm on which the validity of all other legal norms is built.Footnote 11 The latter approach manifests in legal constitutionalism, or what Manow describes as liberal democracy: a system where law (the constitution) must be prevented from becoming an instrument of politics, practically through constitutional review. Understanding the constitution as a political product reflects political constitutionalism: the scepticism toward strong-formFootnote 12 judicial review based on the assumption that by extracting certain values and areas from the sphere of politics, judicial review depoliticises the constitution and bears the risk of arbitrariness and of undermining democracy.Footnote 13
Although, as mentioned above, militant democracy and a powerful constitutional court (Bundesverfassungsgericht) are core features of the German constitutional order, Manow is not the first German author to identify the practice of raising political and legal conflicts to the constitutional level. Mattias Kumm coined the term ‘total constitution’, which ‘provides the constitutional resources to constitutionalize all political and legal conflicts – it constrains and guides their resolution in the name of constitutional rights’.Footnote 14 But according to Kumm, this in fact proves the successful functioning of the German constitution, and he argues for the constitutional scrutiny over private law.Footnote 15 The ‘total constitution’ is evaluated more critically by Martin Loughlin, who contends that ‘in this totalizing era’ constitutional legality extends beyond the written text of the constitution and becomes a set of abstract principles, an ‘invisible constitution’. From this point on, Loughlin goes on, governing according to law no longer means governance in line with promulgated formal rules but governance ‘in accordance with abstract principles of legality whose explication is as much a political as legal exercise’.Footnote 16
The ‘invisible constitution’ is not just a catchy term for academics, but it was an integral part of the Hungarian Constitutional Court’s (HCC) case law in the years following the democratic transition. The concept was introduced to the Court’s case law by the Court’s first president, László Sólyom, in his parallel reasoning to the decision about abolishing the death penaltyFootnote 17 in 1990, and it soon became the main basis for judicial activism. As Gábor Attila Tóth summarised, the invisible constitution ‘was above and beyond the text’, so ‘in this way, disrespecting the constitutional text, the Court might ground some of its decisions on the invisible constitution rather than on the written one’.Footnote 18 Sólyom himself admitted that their constitutional jurisdiction was ‘on the border of constitution writing’.Footnote 19 Manow also mentions the activism of the Hungarian and the Polish constitutional courts in the 1990s and correctly points out that the HCC’s activist track record was certainly a strong incentive for the national-conservative Fidesz government to curb the Court’s powers from 2011 onward (pp. 120–21).Footnote 20
3 The populist promise for the rebirth of politics
What makes the debate about judicial review topical again is the emerging success of populism not just in the periphery of the West but also in its core countries. Manow suggests that populism is a result of liberal democracy, a reaction to judicial depoliticisation: he uses a metaphor that populism is ‘a ghost that haunts liberal democracy because of suffocating politics’ (p. 115). This does not mean that Manow would not be aware of the complex and manifold reasons behind the rise of populism, for instance economic ones, about which he also had written a book.Footnote 21 Still, his point is very relevant and worthy of attention for the mainstream liberal discourse on populism, which often lacks any self-reflection.
The idea that liberal constitutionalism contributed to the success of populism is not Manow’s invention. In their famous book on populism, Cas Mudde and Cristóbal Rovira Kaltwasser described populism as ‘the (bad) conscience of liberal democracy’. As they explain, ‘In a world that is dominated by democracy and liberalism, populism has essentially become an illiberal democratic response to undemocratic liberalism. Populists ask uncomfortable questions about undemocratic aspects of liberal institutions and policies, such as constitutional courts (…)’.Footnote 22 Michael Zürn adds historical context to this, pointing to a ‘double process of disappointment’: he argues that as public trust in parliaments and political parties started to decline in the Western world in the 1960s, it brought about the rise of domestic and international non-majoritarian institutions. This tendency was accelerated by globalisation in the 1980s, and, as Zürn argues, the more authority was delegated to those non-majoritarian institutions, the more politicised they became. (As mentioned above, Manow similarly argues that most Western constitutional courts started to take conflicts with parliaments more intensively around that time.) Here comes the second disappointment, Zürn goes on: from the point where non-majoritarian institutions are seen as too powerful, people tend to turn to populist parties to regain popular sovereignty.Footnote 23 This disappointment process was much faster in post-socialist Europe, where countries were supposed to implement a ready-made Western recipe for liberal democracy.Footnote 24
Populists deliberately use a rhetoric about taking back politics from judges: a prominent theorist of the Hungarian Fidesz government described this as the ‘revolt against institutions in the name of the voters’.Footnote 25 When striking back at liberal depoliticisation, populists borrowed and misusedFootnote 26 the core idea of political constitutionalism: that beyond a certain point, politics must be protected from law, as coined by Manow in the form of the aforementioned rhetorical question (p. 66).
But when protecting politics from law, populists play a dishonest game which is not addressed by Manow: where they are in power, they establish a particular form of institutional weakness, where the façade of liberal constitutionalism is maintained as a mere empty shell. Thanks to the restriction of competences, the appointment of loyalists and the overriding of unpleasant decisions of counter-majoritarian institutions through legislation, those institutions – in particular, constitutional courts – have become mostly dysfunctional, and in some cases even instruments for the government.Footnote 27 Still, keeping the appearance of the counter-majoritarian institutional structure, and justifying legal actions with ‘legalistic or liberal understandings of law and constitutionalism’,Footnote 28 is actually a charade where the institutional framework of liberal constitutionalism is upheld on the surface but is not in fact operational.Footnote 29 Why populists with a constitution making majority, such as Orbán’s government in Hungary, did not abolish the Constitutional Court is an interesting question. Andrew Arato explains this as the great international prestige of constitutional courts, populists’ intention to avoid being seen as dictators and by the political calculation that a packed court might prevent or make re-liberalisation difficult after a populist government is voted out of power.Footnote 30
Although populists often change some formal legal rules either via the constitution or ordinary legislation, the main feature of populist constitutionalism lies not in the law in books but in the law in action. Namely, constitutional provisions are not consistently applied, and institutions do not function properly,Footnote 31 as they should, pursuant to the applicable legal framework.
However, the intentional weakening of institutions does not only concern the classical counter-majoritarian institutions but also those that normally serve the exercise of popular sovereignty. For instance, once in power, populists regard referendums as a source of risk that is better kept under control by decreasing referendums’ binding power, dominating their agenda and using them for mere propaganda purposes.Footnote 32 Populist governments also overhaul certain aspects of parliamentarism by eliminating the relevance of parliamentary debates, outsourcing certain decisions from parliamentary competence or unnecessarily prolonging special legal orders to extend the executive’s possibility to govern certain areas by decree.Footnote 33 ‘Populists are fine with representation, as long as the right representatives represent the right people who are making the right judgment and consequently willing the right thing’, as Jan-Werner Müller summarised.Footnote 34
Therefore, it is certainly not populists who will protect politics from law, to answer Manow’s question. And sadly, liberals are no longer the ones who will protect rights from politics, as illustrated in the next section.
4 Rights inflation: an underestimated consequence of liberal depoliticisation
A significant part of what Manow calls liberal depoliticisation happens through fundamental rights adjudication. In chapter 4, Manow elaborates how liberal democracy is tied to respect for fundamental rights and he discusses the issue of fundamental rights in an international context, focusing primarily on the EU and its predecessors (pp. 161–63). In Manow’s view, ‘it is fundamental rights, not democracy, that stand in the centre of the European constitutional ethos’ (p. 163), and that is why liberal democracy is no longer seen as a mere procedure, as ‘ruled open-endedness’, but has been associated with substantial requirements (p. 166). In legal terms, this means that democratic decision-making is constrained by fundamental rights: laws adopted through democratic procedures may still be invalidated if they violate constitutionally protected rights, and constitutional or other apex courts are tasked with ensuring this. Up to a certain point, such judicial safeguards are both necessary and desirable.
What Manow does not touch upon is the different types of fundamental rights and their different role in any democracy. There are some fundamental rights that are essential even for the most minimally understood democracy. These include the right to vote, the freedom of expression, the freedom of assembly and association, equality before the law and so on. A large part of classical first-generation rights ensures the political environment in which free and fair elections are at all possible. As such, they do not only constrain the democratic majority but also have an essential role in constituting such majorities as well. On the contrary, second-generation or socio-economic rights typically constrain governments. For example, in Germany, these rights are highly ranked thanks to the constitutional principle of the social state.Footnote 35
However, any generation of fundamental rights may be used by courts as a tool for ‘depoliticisation’ when addressing political issues through fundamental rights protection. The problem is that thanks to this tendency, rights have started to inflate.
Rights inflation was explained more than a decade ago by another outstanding German scholar, Kai Möller, in his book The Global Model of Constitutional Rights. As Möller puts it, the global model of constitutional rights overcame the approach of classical first-generation or negative rights (which prevent the state from intervening, for instance, into the property, privacy, enterprise, religious practices, etc. of its citizens) in four aspects. First, instead of protecting only certain particularly important interests, rights started to inflate as relatively trivial interests gained protection as rights. Second, rights no longer merely require the state to abstain from interference, but, with the acceptance of socio-economic rights, they impose positive obligations on the state. Third, fundamental rights cannot exclusively be invoked between citizen–state disputes (vertical effect), but also in disputes between private parties (horizontal effect). Fourth, as the number of specified fundamental rights increased, the role of proportionality-based balancing became central: limitations to fundamental rights in cases of rights collision or interference by the state are subject to proportionality tests in courts’ jurisdictions.Footnote 36
Of course, requiring laws and state actions to comply with fundamental rights is a normal, essential requirement in constitutional democracies. The crucial question is how the exact content of these rights is defined. At this point, balancing gains significance, which in legal-technical terms means a proportionality test.Footnote 37 In such a test, courts first determine whether there was an interference with a fundamental right, and if so, whether such an interference is justified (i.e. proportionate). In terms of justification, courts examine whether there was a legitimate aim for the interference and if so, whether the contested measure was suitable to reach that aim and whether it was strictly necessary and proportional. By using proportionality-based balancing in cases of rights collision and state interference, constitutional courts necessarily rely on value judgments to some extent. Moreover, choosing the intensity of the review means a discretionary element, too.Footnote 38 And the more interests are recognised as fundamental rights, the more weight is given to judges’ subjective discretion.
For example, in cases where the state’s protective duties in the field of fundamental rights protection are invoked, state interference with one fundamental right is reframed as a collision of two fundamental rights. The idea of the state’s protective duties goes back as far as the Lüth judgment in 1958, when the direct horizontal effect of fundamental rights was established by the German Federal Constitutional Court.Footnote 39 In 1979, the European Court of Human Rights also held that states might have positive obligations to ensure the emergence of certain rights.Footnote 40 Positive obligations, or protective duties of the states, are not restricted to socio-economic rights that require active contribution from the states. For instance, they were also used in abortion cases: as a foetus has no legal capacity until it is born, it cannot yet have a right to life, meaning there is no rights collision between the mother and the foetus. So, the regulation of abortion by the state (i.e. time limits of typically twelve weeks of pregnancy) was justified by the state’s obligation to protect the life of the foetus, who is not a person yet but ‘constitutes an independent legal interest’.Footnote 41
However, protective duties can be used extremely extensively or even be misused, as recently illustrated by the Covid-19 pandemic. Then, quarantines, contact restrictions and curfews were imposed, schools and businesses were ordered to be closed, and later, as vaccines became available, unvaccinated people were discriminated against across Europe. The reasoning was based on a chain of uncertainties: if someone is infected, there is the chance that they transmits the disease to others, and those have some chance to develop serious symptoms and some very slim chance to die. Still, the harsh interference with human dignity and other essential rights and freedoms was justified with reference to the state’s obligation to protect others’ right to life and health,Footnote 42 and a meaningful proportionality test was very often omitted when deciding on the constitutionality of preventive measures.Footnote 43
Considering even the most indirect and eventual risks and interests as being protected by fundamental rights, and as such assessing them against real and actually interfered with fundamental rights, is a risky exercise: it might bring rights inflation and the decline of liberal constitutionalism.
The example of rights inflation shows that although Manow’s criticism of activist constitutional courts is quite right, the problem is not so simple that courts restrict parliaments too much and therefore depoliticise politics. Courts can be activist also when they substitute the missing political will (or majority) through case law development or when they identify interests as rights that might be a basis for restricting real fundamental rights. When doing so, courts do not necessarily contradict political majorities; sometimes they might even be in line with governments’ interests.
This kind of activism is not only present in liberal constitutionalism but also in countries led by populists. For instance, the Hungarian Constitutional Court, which suffered competence restrictions and has been filled with loyalists to the Fidesz government,Footnote 44 recently copied the ‘right to democracy’ from the German case lawFootnote 45 to establish a wide, but so far only abstract, possibility for avoiding the primacy of EU law.Footnote 46
The Hungarian Constitutional Court’s decision illustrates a peculiar controversy of populist constitutionalism. Namely, although populists propagate the denunciation of legalism and the return of (majoritarian) politics, they ‘seek to redefine human rights and utilise them for their own political aims’.Footnote 47 Liberals are now faced with this situation at the international level as well, before the ECtHR, which is a pioneer in interpreting rights extensively in fields where legislation by a political majority in a given country seemed to be unrealistic.Footnote 48 However, it is becoming clear that human rights litigation cannot exclusively be used for pushing a progressive agenda: recently, conservative actors are tending to intervene in ECHR cases, urging for a conservative interpretation of rights collisions.Footnote 49 Although the tendency is clear, such interventions have not substantially influenced the case law of the ECtHR so far.Footnote 50
Rights inflation shows that what Manow describes as judicial depoliticisation of politics is only one side of the coin. The other side is the politicisation of rights. If an increasing number of issues are transferred from the political sphere to the judiciary and are decided according to legal rather than political considerations, the politicisation of fundamental rights discourse becomes difficult, if not impossible, to avoid. This tendency is reinforced when judges adopt activist interpretive approaches and claim broader discretionary authority in deciding such issues. If liberals have a claim for promoting progressive agendas before apex courts through the creative interpretation of rights, conservative or even populist actors can legitimately try to use the same method to counter those progressive agendas. In this regard, the liberal depoliticisation of politics not only contributed to the rise of populism, as Manow correctly argues, but the process also created a politicised discourse on certain fundamental rights which might be exploited both by liberals and populists. However, where fundamental rights are balanced against abstract interests and risks, as if they were conflicting rights, and where political interests are disguised in the veneer of fundamental rights, rights will start to inflate. When everything is a fundamental right, nothing is a fundamental right.
5 Conclusion: reinforcing the electoral dimension of democracy
‘Today’s conflicts presented as conflicts between politics and the rule of law are roughly simplified’, Manow concludes (p. 174). In this discourse, he goes on, ‘the enemies of democracy are found on the side of politics and the defenders of democracy on the side of law’. However, this one-sided interpretation ‘ignores the inevitable political character of law and discredits the electoral legitimacy of politics’ (p. 174). Due to the dominance of liberal democracy, ‘the electoral dimension of democracy no longer plays a particularly important role’, because it hides the potential danger of ‘a scenario of self-endangerment of democracy’; that is why the electoral dimension is constitutionally minimised, and the ‘Demos is under suspicion and under surveillance’, Manow concludes (pp. 175, 178).
Reinforcing the electoral dimension and returning to a more minimalist understanding of democracy would indeed be desirable: understanding democracy as a system where popular sovereignty is exercised through parliaments that are elected in free, fair and regular elections, and where governments are either re-elected or outvoted. Crucially, however, democracy requires that political majorities remain temporary and reversible. The political minority must always retain a realistic opportunity to become the majority through electoral competition and to replace the government. If the opposition no longer has a realistic chance of winning elections and replacing the government, democracy ceases to exist, even if the institutional façade of elections formally remains in place. The system that Manow describes as liberal democracy was meant to implement guarantees. However, it indeed went much further in restricting the electoral dimension than was strictly necessary.
But still, there must be something to safeguard the real chance for changing the government via elections, something to guarantee that democracy remains democracy. Manow is silent about this point in the book, but he mentioned the problem in an interview: ‘Democracy means political uncertainty. You only ever know whether it was democracy afterwards, namely when a government has been voted out and then actually relinquishes power. This fundamental uncertainty feeds fears about the end of democracy.’Footnote 51 While admitting the inherent uncertainty in democracy (and in freedom in general), I opt for striking a balance between the two extremes: the laissez-faire approach and suffocating politics through too strong judicial review. A middle way could be a weak-form judicial review,Footnote 52 or democratically legitimised tools such as referendums that enable citizens to restrain the elected government and the parliamentary majority on specific issues.Footnote 53
The problem today is that democratic legitimacy itself is not above suspicion anymore, thanks to the increasing possibility of interference in elections via the use of digital technologies and social media in particular. The latest example is the Romanian presidential election of 2024, which was declared to be void by the constitutional court due to the controversial TikTok campaign of the leading far-right candidate.Footnote 54 Under such circumstances, the level of uncertainty inherent in democracy is likely to increase drastically: we cannot ever be sure if a surprising election result really reflects the will of the people or is a consequence of undue interference. In such a situation, the depoliticisation dilemma becomes even more difficult, as demonstrated by the reactions to the Romanian constitutional court’s aforementioned decision. Politicians either praised the court for defending democracy or blamed it for neglecting the people’s democratic will, depending on how the decision affected their political chances. In an era in which the integrity of elections, and with it democratic legitimacy itself, is increasingly contested, courts will inevitably be asked more frequently to adjudicate disputes over the legitimacy of electoral outcomes. Judicial oversight of elections is, of course, a normal and necessary component of constitutional democracy. Yet once courts are increasingly called upon to decide disputes over electoral integrity and political outcomes, keeping politics genuinely political becomes far more difficult.
Funding statement
This essay is an output of the project ‘MSCA Fellowships CZ – UK2’ (reg. n. CZ.02.01.01/00/22_010/0008115), supported by the Programme Johannes Amos Comenius. The essay was partially inspired by earlier discussions within the RECONCILE Research Team, led by Tomás Dumbrovsky at Charles University (project no. LL2106, ERC CZ).
