There is little doubt that human rights and populism both belong among the buzzwords of our times. And yet, leaving aside certain isolated articles and essays (Alston Reference Alston2017; Bílková Reference Bílková2019; Mégret Reference Mégret2021), the complicated, and at instances antagonistic, relationship between them has so far largely escaped scholarly reflection. The collective monography under review is one of the first attempts to engage in such a reflection. Emerging from a conference organized at Harvard Law School in March 2018, the book, edited by Gerald L. Neuman, brings together eleven contributions authored predominantly by legal scholars and political scientists.
The contributions could be divided into two categories. The first encompasses six chapters (by Neuman, Waldron, Heydarian, Johnson, Helfer and Neuman again) which deal with populism from a general perspective. These chapters, drafted mainly by Anglo-Saxon scholars, discuss, in accordance with the subtitle of the book, the challenges that populism produces for human rights and the responses that human rights – acting through international institutions, non-governmental organizations and other supporters – provide in response. The second category consists of five country-specific case studies (by Pomper and Levine-Spound, Sadurski, Alviar García, O'Connell and Mon Htun). These case studies, drafted in their majority by scholars and practitioners from the countries concerned, describe and analyse the rise of populism in the USA, Poland, Colombia and Venezuela, Turkey and Myanmar.
The book provides no explanation for the selection of these countries and the omission of others (Brazil, Hungary and the Philippines are among the obvious candidates). The geographical distribution nonetheless suggests that the ambition probably was that of presenting the rise of populism as a world-wide phenomenon. This ambition has largely been achieved. The case studies, moreover, communicate well with the general chapters, illustrating on a concrete level the abstract processes analysed in these chapters. It is just somewhat regrettable from the formal point of view that the difference between the two categories of contributions has not been reflected in the structure of the book, where general chapters and case studies follow one another in what seems to be a random order.
This remark notwithstanding, the editor has clearly done more than just collect the papers presented during the 2018 Harvard conference. The editor's introductory chapter seeks to provide a common conceptual framework for the whole volume. And the final chapter, also by Neuman, offers general reflections on the ways in which human rights could respond to populist criticism.
The conceptual framework primarily concentrates on the concept of populism. Neuman suggests embracing the so-called ideational approach which has been actively promoted by Mudde (Reference Mudde2004) and Müller (Reference Müller2016). In contradistinction to authors who see populism as a discursive strategy (Laclau Reference Laclau2005), a type of popular mobilization (Weyland Reference Weyland2021) or a political style (Ostiguy, Panizza, and Moffitt Reference Ostigue, Panizza and Moffitt2020), Mudde and Müller define populism as a particular type of ideology. This ideology “considers society to be ultimately separated into two homogeneous and antagonistic groups, ‘the pure people’ versus ‘the corrupt elite’ and […] argues that politics should be an expression of the volonté générale (general will) of the people” (Mudde Reference Mudde2004, p. 543). The two features that characterize populism under the ideational approach are thus its anti-elitism and anti-pluralism.
Neuman recommends that the contributors focus more specifically on one type of populism known as exclusionary populism. Introduced by Mudde and Rovira Kaltwasser (Reference Mudde and Rovira Kaltwasser2013), the division into its exclusionary and inclusionary forms was meant to reflect the differences between populism in Europe and its counterpart in Latin America. The main ambition of European populists would be to exclude certain groups, such as migrants or national minorities, from access to material resources, political decision-making and societal acceptance. Populists in Latin America, conversely, would wish to include certain groups, mainly indigenous populations, in all these three areas.
The focus on exclusionary populism has, however, proven impossible to keep in several chapters, typically, and unsurprisingly, in that by Alviar García, dealing with the rise of populism in Latin America. At the same time, some contributions cast doubt on the association of the two types of populism with concrete regions. Thus, the same chapter by Alviar García contrasts the largely inclusionary Chávez regime in Venezuela with the rather exclusionary Uribe regime in Colombia. The binary typology of populism gives rise to criticism as well (e.g. O'Connell demonstrates that the AKP regime in Turkey has included some groups but excluded others).
It is important to add that the ideational approach is not accepted without reservations either. Some authors depart from it implicitly by putting emphasis on the means populists use (Alviar García) or on the rhetoric they deploy (Heydarian). This emphasis brings them closer to some of the alternative approaches to populism. Other authors engage with the ideational approach explicitly. This is the case of Sadurski and his chapter on Poland. Arguing that the ideational approach “focuses too much on what populists say as opposed to what they do” (p. 63, emphasis in the original), Sadurski suggests defining populism “not as a form of ideology but rather as a form of political organization and action” (p. 63). What in his view sets populism apart is first and foremost its hostility to institutional pluralism and preference for direct political engagement. This description, rather than departing from the tenets of the ideational approach, seems to warn against deducing the adherence to this ideology from mere words without taking into account the actual deeds.
It is indeed through both words and deeds that populism manifests itself and impacts on human rights. Neuman, in his introductory chapter, indicates that this impact is predominantly negative. While populists might employ the language of human rights, their allegiance to these rights is “generally selective and defeasible” (p. 7). The same holds for their approach to treaty obligations and human rights mechanisms.
This negative assessment is shared by most of the contributors. Waldron discusses the complaints that populists raise against a specific subcategory of human rights that serves to protect rule-of-law values and that encompasses the right to equality before law, the right to liberty and security and various procedural rights. Such complaints build on certain well-known and, in Waldron's view, not completely unjustified objections to human rights (proliferation of human rights, the need to balance rights and responsibilities, etc.) but they are made to promote the populist nationalist and anti-globalist agenda. Sharing this view, Heydarian shows how populists use and abuse the democracy fatigue to wage a “war on human rights” (p. 143) because they consider these rights an obstacle to the ascent of strongmen.
The country-specific chapters provide concrete examples of the impact that populism has had on human rights at the national level. Although the countries under scrutiny differ from one another by history, political system, religions or cultural values, they all reveal similar symptoms of a “populist backlash against human rights” (p. 35). This backlash involves human rights abuses against those whom populists label as enemies of the people, as well as the adoption of general restrictive measures that affect these very people and limit the space for any independent actions.
The chapters show that these developments take place at somewhat different speeds in different countries, depending on the resistance they encounter in the population or in the system of the checks and balances (e.g. the Constitutional Court of Colombia was able to successfully block the adoption of a set of restrictive measures by the Uribe government). There is also a difference in scale: some populist regimes concentrate on limiting political rights and disabling judicial and other monitoring institutions (Poland), others resort to violent repression of real or potential political opponents (Turkey) and some go so far as to engage in full-scale ethnic cleansing (Myanmar). The chapter on the USA moreover demonstrates that the backlash against human rights may affect not only the situation within the country but also the country's foreign policy.
The depiction of the relationship between populism and human rights as a contradictory or even hostile one is not shared unanimously. In the chapter tellingly entitled “In Defence of Democratic Populism,” Johnson argues that populism can take two forms. One, authoritarian populism, personified by Trump or Orbán, is truly inimical to human rights. The other, democratic populism, epitomized by the late-nineteenth and early-twentieth century US People's Party, is, on the contrary, consonant with human rights. Although both forms adopt an anti-elitist stance, they do so for different purposes. While authoritarian populists seek to strengthen their own position and discredit any potential competitors for power, democratic populists work to “crack through a strongly entrenched and self-reinforcing status quo” (p. 208) in order to make the politics more inclusionary and sensitive to the interests of all segments of the population. Although one may doubt whether Johnson's democratic populism falls under the concept of populism as defined in the book, his warning against discarding anyone criticizing the elites and striving to promote the needs of ordinary people as an (authoritarian) populist, is quite important.
Revising somewhat his original position, even Neuman, in the final chapter, concedes that the impact of populism on human rights does not need to be wholly negative. The populist critique of these rights can play a positive role by drawing attention to certain shortcomings in the human rights system, such as the inadequate enforcement of economic and social rights or the unclear rules on the extraterritorial application of human rights. There are thus, in his view, “important lessons for the human rights system to learn from the current wave of populism” (p. 258) and these lessons could be used both to improve the performance of the system and to reduce the appeal of populists.
How to respond to the populist challenges should, in line with the subtitle, be the second major topic of the book, alongside that of identifying these challenges. Yet, most of the chapters pay relatively little attention to this topic. One exception is the chapter by Helfer, which however only focuses on international human rights institutions. Helfer identifies four defensive strategies that these institutions should deploy to survive attacks by populists. These strategies encompass staying short of excessive judicial activism, carefully justifying decisions, having an outreach policy, and building alliances with like-minded actors at the national and international levels. Helfer also indicates three offensive strategies through which international human rights institutions might counter-attack populists. Those include relying on legal doctrines that help unveil structural problems within states (e.g. Article 18 of the ECHR), resorting to infringement proceedings against problematic states (e.g. Article 46 of the ECHR) and revising rules on the responsibility of non-state actors (e.g. social media spreading fake news).
Moving from human rights institutions to human rights experts more broadly, Neuman, in his final chapter again, argues that instead of confronting populists, those caring about human rights should “seek to protect and support the advocacy of local actors, who are often better situated to persuade the domestic audience about the threats that populist leaders pose” (p. 251). While this suggestion has merits, it seems not to take sufficiently into account the difficult conditions in which – as described in the case studies – local actors in several countries operate. The ways in which these conditions could be overcome would be worth reflecting upon but unfortunately, such reflection is largely missing from the book. There is, thus, a mismatch between the detailed analysis of the challenges, which are mostly found to lie at the national level, and the rather cursory suggestions for the responses, which mainly target international actors.
Despite this mismatch, the book under review generally makes an interesting and enriching read. Benefiting from the plurality of authors and solid editorial work, it provides one of the first relatively coherent and comprehensive accounts of the relationship between populism and human rights. And while it might raise more questions than it answers, the book certainly leaves readers with a great deal of new information and new ideas to think about.
