What’s wrong with populism?

WHAT’S WRONG WITH POPULISM?

By Raymond Wacks

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The Montréal Review, March 2024

Who, other than Augeas, objected when, in a single day, Hercules cleaned out the Augean stables? A mighty pile of cattle dung had been festering there for more than thirty years. Augeas was infuriated because he had promised Hercules one tenth of his cattle if the job was finished in one day. He refused to honour the agreement, so Hercules understandably slayed him.

Draining the swamps was one of Mussolini’s signal achievements. The insalubrious Pontine marshes on the outskirts of Rome had been uninhabited for centuries owing to malaria. No-one objected, except perhaps the mosquitoes.

Donald Trump employed the metaphor promiscuously during his first campaign, but less so in the second. Nevertheless, there is nothing figurative about his current crusade against the spending of billions of dollars generated by fraud and waste that Elon Musk’s Department of Government Efficiency (DOGE) is allegedly eradicating from America’s bloated bureaucracy. Who is objecting, apart from those who have benefited from the sleaze that is apparently being unearthed?

Ending wokery

And who could sensibly object to the termination of the race-based preferences of the DEI (diversity, equity and inclusion) programs, or the pervasive wokery that has infected employment, promotion and other policy decisions? The promise to eradicate, or at least attenuate, them unquestionably contributed to Trump’s electoral triumph. Their tentacles have, for many years, reached well beyond the borders of America. Allow me to cite a personal experience of the absurdity of political correctness in Britain. Not long ago, a reviewer of one of my student textbooks rebuked me for my ‘aggressive language’. I had described one philosopher as ‘attacking’ the views of another. Legal philosophy, he/she/they/it censoriously declared is ‘a male dominated subject, and the implication that disagreement within it is characterised by its aggression may well be alienating to female students. Toxic masculinity has no place in an introductory text.’ To protest against this sort of injustice is, of course, futile, even if a central theme of the book in question happens, ironically, to be the concept of justice!

This nonsense has become ubiquitous, and one can only hope that Trump’s salutary example will be followed in other countries. Yet while we should applaud these steps toward sanity, robust resistance to the President’s assault on democracy and the rule of law is required. Here I concentrate on the latter.

Feeding the loyalists

The unseemly spectacle in the Oval Office on 28 February has been widely reviled. The President of Ukraine was humiliated by a finger-wagging, bullying Trump and his browbeating Vice-President. Several commentators have suggested that it was a premeditated ambush designed to appeal to the MAGA devotees who require, like a lithium battery, regular recharging by populist rhetoric and swagger.

Populism, the sociologist Eva Illouz contends, is an amalgam of fear, disgust, resentment, and love (The Emotional Life of Populism). She shows how its ethical dimension is exploited by populist leaders who reshape political challenges—economic growth, immigration etc—into moral questions, such as the manner in which immigrants imperil our way of life.

I have described before how the rise of populism, especially in Europe, is a direct challenge, if not a severe danger, to the rule of law. (‘The Knesset and the Court’, Montreal Review, September 2023). One needs only to observe the developments in Hungary and Poland to recognise the nature and extent of the problem. Yes, we have allowed unregulated immigration to undermine our values and security. But we should be wary of the assaults on those institutions among whose vital functions is the protection and defence of the rule of law.

Checks and balances

At the heart of the rule of law is the constraint it imposes on unbridled power; populist leaders typically exemplify its antithesis. They exhibit an unambiguous hostility toward independent institutions, and an unconcealed desire for the exclusivity of unlimited rule. In pursuit of this object, they evince scorn (often ad hominem) for judges, judicial independence, the media, the civil service, and many NGOs.

Particularly disquieting is the assault on the courts. Unchecked executive discretion reduces them to impotent spectators of executive action—a grotesque distortion of their calling. No government relishes the pesky interference by courts with its political agenda. And this is no less true of democratically elected governments. Nor is the antipathy towards judges the monopoly of any ideology: it is expressed by both left and right.

Threatening the judiciary

There have been a number of recent instances of institutional conflict between the judiciary and executive. Donald Trump has long criticised judges, and continues to question judicial oversight of the executive branch. He insists, of course, that he has been persecuted by hostile legal officials and unfriendly judges, but such assaults plainly undermine the authority and independence of the judiciary.

But Trump is not alone. From a rather different standpoint, the Israeli government, in recently seeking to curtail the powers of the Supreme Court, advanced ‘reforms’ that would both emasculate the rule of law and endanger the country’s celebrated democratic system.

In Poland, as mentioned above, the courts have been in the cross-hairs of the former government led by the (paradoxically titled) Law and Justice Party (PiS). Whether the new Polish administration is able to adopt a different approach remains unclear. Previously the ruling party described judges as ‘self-serving, unelected elites who substitute their own preferences for those of voters’. This charitable appraisal was followed by the enactment of stringent limitations on the autonomy and independence of the courts. The legislation hands the government more control over the judiciary, violating the commitment to uphold the rule of law that Poland made when it joined the European Union. In response, not only Poles, but judicial officers from several EU countries marched in Warsaw to protest against the statute, and to reaffirm the importance of judicial independence.

Poland’s new Prime Minister, Donald Tusk, has announced encouraging plans that include dismissing fifteen of the judges appointed during the eight years when the PiS was in power.

Undermining democracy

Populists appear to have no problem in simultaneously flaunting and flouting the rule of law. The legal system is censured for corroding the rule of law, and depriving the people of its benefits, while, at the same time, the law is employed to frustrate democratic values.

Why is this happening? How are we to account for populism’s revival? One compelling explanation is suggested by Federico Finchelstein in his book, From Fascism to Populism in History, that populism

is not a pathology of democracy but a political form that thrives in democracies that are particularly unequal, that is, in places where the income gap has increased and the legitimacy of democratic representation has decreased. As a response, populism is capable of undermining democracy even more without breaking it, and if and when it does extinguish democracy, it ceases to be populism and becomes something else: dictatorship.

In other words, when democratic governments drift too far away from the people, a space appears that allows populists to move in.

Immigration

There is little doubt that the migrant crisis has been a major catalyst for the growth in xenophobic populist voices. Nor is it an exclusively right-wing phenomenon. At the core of most, if not all, populist movements is the construction of an antagonistic tension between a homogeneous notion of ‘the people’, normally conceived in ethnic or national terms, and a leader who represents their will against a tainted group consisting of an elite, or an undesirable minority. Under these straitened conditions the rule of law is inevitably vulnerable to being subverted.

Archetypal populists reject the rule of law in any recognisable form, but, as mentioned above, concurrently brandish it as a talisman in order to avert censure, attract foreign investment, or thwart possible sanctions. Their campaign is thus both institutional and political.

Populism and foreign policy

Populism looms large on the domestic front, but it is increasingly extending to foreign policy. European right-wing populist parties generally adopt a nativist stance that opposes immigration, with an emphasis on national sovereignty, and the repudiation of economic and cultural globalization. Populist parties on the left, on the other hand, reject neo-liberalism and the free market. Parties of either stripe tend to share a degree of Euroscepticism, anti-Americanism, and, as current events demonstrate, are stereotypically pro-Russia (or, at least, pro-Putin).

Trump’s brand of populism has, as its major premise, putting America first—especially, as is increasingly evident—a protectionist policy that imposes steep tariffs on imported goods. Other elements exist; they are a subject for a different essay.

Populism and democracy

Beyond Europe and the United States, populist parties have mushroomed in countries as diverse as India, Turkey, and a number of Asian and South American nations. In addition to the threat to the rule of law, it poses a grave hazard to democracy.

Nothing in the populist playbook rules out a comprehensive onslaught on the institutions and values of constitutional government. The idea that this new dawn signifies the advent of a unique variety of the rule of law, as postulated by the Hungarian government, is risible. There may be competing versions of the rule of law, but all share a commitment to restraining the use of executive power.

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Raymond Wacks, Emeritus Professor of Law and Legal Theory, is the author of seventeen books including The Rule of Law Under Fire? His works have been translated into more than a dozen languages.

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