Constitutionalism under pressure from pandemic

During the last decade, liberal democracies around the world were confronted with forms of contestation difficult to ascribe to the classical categories of political theory. For better or for worse, many of these phenomena were labelled as “populist”. The new political actors representing such movements combine old topics with new claims. They also employ new forms of public communication offered by social media alongside the more traditional ones. Constitutional lawyers already have had a hard time in describing/analysing these emerging phenomena.

The Covid-19 pandemic outbreak might have seemed an “occasion” for a change of focus. Many countries had recourse to the state of emergency, with its specific limitations to freedoms, thus it would have been expectable that classical topics such as abuse of power by governments would come again to foreground. While discussions about such initiatives existed (e.g. Hungary, Romania), we believe what the context of Covid-19 rather did was to add other puzzling developments in politics. Various groups, with various degrees of organization, gained visibility arguing from positions that doubtlessly would have been considered as “marginal”, “eccentric” or even “frivolous” only a couple of years ago.

For example, anti-vaccination (and “alternative” medical practices) became part of the everyday talk and of the agenda of relevant political parties (US, Brazil, France, Romania). Conspiracy theories, once the sole delight of tabloids and an object of intellectual jokes, gained momentum in the political arena. The positions expressed by the scientific community concerning the pandemics were forcefully and continuously criticized by some political actors, sometimes with arguments borrowed from dissident scientists who did not enjoy support in their respective professional communities. Moreover, the tactics employed by the actors supporting these claims were usually very aggressive. Accusations were particularly virulent and no effort for a minimally constructive dialogue seems to have been made. Attempts by mainstream political actors (governments, main political parties, international organizations) to demonstrate weaknesses of some of the arguments employed were dismissed with equal virulence. A third characteristic is that these new, “eccentric” claims, although extremely heterogenous, somehow coalesced in single movements and benefited from platforms of support unifying people with otherwise very different backgrounds. Political establishment came under attack from the widest possible spectrum of dissatisfactions: economic and welfare concerns, nationalism, religious (and social) conservatism, hostility towards immigration, international markets and international institutions and hostility towards scientific community and even towards key institutions of democracy. Almost anything seemed capable to motivate this sort of criticism, provided it is directed against the political establishment: from economic inequality to attitudes towards sex.

A different problem for constitutionalists is raised by political tactics employed. Although seldom explicitly provided by constitutional law, self-restraint of political actors in the political “struggle” is certainly a constant element of constitutional practices. Constitutional “good practices” require political actors to somehow limit the scope and the means of confrontation, such as not to endanger the social peace. While political communication and competition in democracies was never a fair play Coubertin-style contest, the virulence of attacks from these movements went far beyond the already familiar “dirty tricks” of everyday politics. In particular, the rejection of any “real” dialogue on the contested matters renders these movements’ strategies of public communication close to authoritarian propaganda and, since it chooses to ignore factual arguments, to “negationism”.

In fact, the Covid-19 pandemic seems to have exacerbated the illiberal trends in politics around the world, both from grassroots movements (France, Romania), but also from actors in power already (Brazil). A second wave of “populism” or even some sort of “post-populism” seems to have appeared. It is not clear now whether these are simply natural developments of the already existing tendencies, only adapted to the new context. It is not clear either whether it is more appropriate to look at them as mere reactions to greater powers assumed by States in pandemic times or as rather autonomous developments. It would probably be more prudent to state for now that pandemics seems to have worked like magnifying glasses where many issues became more visible. Indeed, these illiberal trends are not necessarily linked to the rise of populism. Given the disruptions in the public space already brought about in recent times by social media and the new technologies, we can ask ourselves whether such phenomena are a result of the exceptional times of the pandemic or rather represent a mere coincidence. We can further inquiry into the relationship between official populist discourses and such disturbing private initiative. At least on some occasions, the latter did not seem to serve well the cause of the first. In fact, we aim at understanding whether the distinction private/public still retains its pertinence. Does social media create a dissolution of the private sphere with the consequence that it becomes impossible to know what is political speech? Did political parties lose their guiding role, that of channelling different albeit legitimate values?
It is however manifest that the paradigms of public law are unable to describe such phenomena, let alone to properly analyse them. A stronger socio-legal approach seems then the proper direction for further reflection on these matters. Oñati Institute for the Sociology of Law offers a unique setting for pursuing such a goal. We seek to engage scholars from various disciplinary backgrounds (law, political sciences, history, cultural studies, sociology, humanities) in a dialogue around the following core themes:

1)    Identifying populist and post-populist manifestations in relation to the pandemic:

•    Was populism transformed by the pandemic? if so, how? is it less or more authoritarian under the pressure from pandemic and what does this say to us about its political ambitions? (political science, history)
•    Can the typical democratic institutions efficiently address these challenges? (political science, law)
•    Case studies from various countries
•    State of emergency/state of exception – any relation to populism?

2)    Explaining the origins of such manifestations:
•    What made these trends possible? (sociology; economics)

3)    Scrutinizing the future of these movements and proposing a way forward:
•    Under what conditions is political polarization helping or hampering the maintenance of a viable liberal democratic system? (political science, law)
•    Does the distinction between public and private sphere, a cornerstone of modern political theory, become blurrier than ever, or even risk losing it relevance? What can we do about this?
•    Are these troubling trends temporary or are they here to stay?