Learning Lessons from the Populist Defeats: From Negative to Positive Constitutionalism

Abstract

The article explains how populists have exploited the weaknesses of liberal constitutionalism and the public-private divide. It argues that populists have not rejected constitutionalism as a project but a negative version of it. In its place, they incorporated their vision of a government unrestricted by individual rights and entered the private sphere with their doctrines. The lesson from the victories of populism is therefore to move toward positive constitutionalism that ensures the well-being of all. Drawing on the concept of relational autonomy, the article explains what this shift consists of in the areas of reproductive rights and gender-based violence. The conclusions outline a shift in the operation of the basic principles of constitutionalism, focusing on the relational nature of rights understood not only as shields, but also as claims to positive state action.

1. Populist Challenge to Liberal Constitutionalism

The emergence and entrenchment of populist and illiberal governments in several countries around the world, ¹ as well as their chances of returning to power, testifies to a deep crisis of liberal constitutionalism (Sadurski, 2022; Krastev and Holmes, 2020; Graber, 2019). It also undermines the assumption of the universality and durability of political liberalism as a project (Fukuyama, 1992). Most of the literature on populism and constitutionalism, especially in law, focuses on populist violations of liberal constitutionalism (Sadurski, 2019; Mudde and Kaltwasser, 2017; Müller, 2016). Liberal constitutionalism presupposes a representative government limited by the constitution as the supreme law, which enshrines the principles of rule of law, separation of powers, democracy and fundamental rights (Sajó and Uitz, 2017). The concept of limited government denotes the limits that a society places on the government to secure the free exercise of individual liberty (Locke, 1988). The article argues that populist governments have taken advantage of the weaknesses of liberal constitutionalism and, above all, the impossibility of a liberal social contract to create conditions for the equal exercise of individual freedom.

Populism is primarily a way of doing politics, as well as a strategy for gaining power, which is characterized by ideological thinness, that is, the ability to serve any ideology (Norris and Ingelehart, 2019, Mudde, 2004). In addition, there are varieties of populism combining different ideological, political-institutional, economic and structural strategies (Devinney and Hartwell, 2020). These differences point to different root causes of the populist surge, the most common of which include fatigue and disillusionment with the elites and democratic processes, as well as the fear of privileged groups of losing their social status. The hallmark of populist and illiberal governments is their appeal to emotion, the politics of resentment, a disdain for others, and a departure from rational discourse. Unlike dictators, however, who magnify fear to maintain power, populists promise to save their people from all evils (Osiatyńsky 2009, 82), for which they blame liberal elites and the establishment, as well as globalization and international organizations. They thus appeal to the “real people” as the source of democratic will (Müller, 2016) and try to dismantle all checks and balances that constrain that will. If in power, they gradually move away from democratic principles to become electoral dictatorships and authoritarian regimes (Bugarič, 2019; Halmai, 2019).

Although populist-led regimes do not attack all elements of liberal constitutionalism with equal force, they use the institutions of the liberal state for purposes other than those for which these institutions were created: they seize electoral rights to achieve a predetermined electoral outcome, the media to make them a propaganda channel for power, the rule of law to instrumentalize rights, human rights to protect the majority, and so on. Populist governments, however, have not overthrown the constitutional state as such for they rule most often without a constitutional super-majority, and seek political legitimacy from existing constitutional acts. In fact, only the Hungarian populists have managed to achieve a supermajority and adopt a new illiberal constitution (Bánkuti, Halmai, and Scheppele, 2012). Other populists either attempt to change the existing constitution through amendments or engage in court packing, to divert from the established interpretation and practice (Sadurski, 2022).

Populists also attack the international dimension of liberal constitutionalism in their calls to restore lost sovereignty. To this end, they condemn international agreements and, in the case of European Union states, renounce loyal cooperation within its framework (Jones, 2021; Iakhnis et al., 2018). In the domestic sphere, on the other hand, populists respond to the need to build a strong national identity and promise to strengthen social institutions such as the nation, religion, and family. For individuals living in uncertainty and fear, which populists further exacerbate, such promises are very important, even if only symbolic. To this end, populists skillfully use socio-technical instruments (appealing to the emotions of crowds rather than the reason of the individual) to bring out hidden prejudices or sympathies. Particularly where populism is based on a strong nationalist program its promise to regain national pride includes “lost” masculinity and the patriarchal gender order.

2. Populist Dismantling of Negative Constitutionalism

In this section, I point out the ways in which populists use key elements of negative constitutionalism to gain and maintain power. A central tenet of negative constitutionalism is the concept of limited government and the restraint of majority rule. Essentially, the concept of limited government was designed as a response to the abuses of absolutist monarchs (Sajó, 1999). While limited government does not necessarily mean a weak state, modern international relations have changed the meaning of national sovereignty and limited the possibilities of unilateralism. Populist governments exploit the weaknesses of negative constitutionalism and reveal the lack of effective defence mechanisms built into the model against hostile seizures of power.

Populists primarily exploit the idea of the normativity of the constitution as supreme law. For liberals, a government is legitimate only if it derives its powers from the constitution, the basic norm from which all other norms stem. In practice, however, the constitution loses its relevance as a fundamental law, as there is a tension between the normative position and the actual practice, especially when a living constitution is actually created by the ruling party and the mouths of judges (Bellamy, 2009). In this vein, populists criticize the growing power of the courts (Hirshl, 2007) and agree that judicial empowerment (which has emerged with the growing position of constitutional courts and judicial review) has had a negative impact on the democratic process (Arato, 2019). Yet, populists not only expose the politicization of constitutional interpretation, but further compound it (Gárdos-Orosz and Szente, 2021).

Second, populists embrace the vagueness of the rule of law. The rule of law relies on respect for a number of specific principles such as clarity of the law, non-retroactivity of the law, protection of acquired rights, equality before the law, proportionality, and institutionally, access to court, and due process. In practice, the rule of law hinges on the independence of the courts and the efficiency of the judiciary. Still, there are important local differences in how to ensure judicial independence. Using these weaknesses, populists dismantle the rule of law. On the one hand, they seek to rule by law, as they use their own laws, including new constitutions or constitutional amendments, to stay in power and avoid accountability for breaking the law (Sajó, 2021). On the other hand, populists capture the courts and implement judicial processes that legitimize their own political decisions.

Third, populists remove the principle of separation of powers and checks and balances mechanisms. Checks and balances mechanisms are designed to counter the ambitions of those in office. They are supplemented by independent institutions to control the executive branch. However, these mechanisms work as long as all actors loyally cooperate and respect the constitution. Moreover, some of the rules of constitutional cooperation are unwritten and conventional, and their maintenance requires a mature political culture (Siegel, 2016; Ludwikowski, 2000). After the political takeover of constitutional courts and some parts of the judiciary, there is a lack of effective mechanisms to curb the abuse of power, while constitutional or political accountability is blocked by the ruling majority. As a result, with limited opportunities for the political opposition to act, the limit of the government's power lies in the goodwill of the populist leadership.

Fourth, populists abuse the idea of democracy. Although they hold regular parliamentary and local elections, they exploit the inadequacies of the electoral process and the democratic representation of the people in parliaments (Tushnet and Bugarič, 2021). Preaching the “rule by the people,” they shift the center of power to the executive branch and worship charismatic leaders who supposedly embody the people (Rosanvallon, 2018). At the same time, populists use plebiscitary forms to legitimize their decisions, resorting to emotions and sentiments rather than to public reasons. They also orchestrate campaigns criticizing the free media and independent experts and their role in policy-making. In this way, populists reject the central assumption of the liberal state, which is that public institutions can be neutral (Greenberg, 2018; Mouffe, 1994). These attempts to delegitimize the current elite aim to replace the cadres with individuals who openly represent the views of the winning majority. Therefore, once in power, populists immediately seek to secure public office and other political and economic benefits for their cronies (Ligeti and Martin, 2017).

Fifth, populists' actions also show the abstractness of the idea of human rights. In political reality, human rights protection depends on the will of the legislature and on the resolution of conflicts over rights in the courts. Populists highlight the gap between guarantees and the realization of human rights, as well as the need for state protective measures in horizontal relations (between individuals or private entities). Moreover, they take advantage of the fact that the majority of the public probably does not feel any connection with human rights and understands them as privileges acting in defense of “asylum seekers,” “criminals,” “terrorists” and the like (Alston, 2017). For their part, populists pledge allegiance to human rights, but use them for their own political purposes (Neuman, 2020). They reject human rights mechanisms as shields to protect minorities, and instead use them as swords to fight for the rights of the majority (Orgad, 2016). To this aim, they apply co-optation strategies and argue that minorities (minority cultures) oppress the majority and its values (NeJaime and Siegel, 2020).

Thus, in addition to a “counter-playbook” to prevent abuse and concentration of power (Gardbaum, 2021), the question should be how a liberal state should learn from populist success. This does not at all mean the answer to populism must be populist. While populist governments have visibly eroded the liberal state, they have not sunk constitutionalism as a project. They have, however, undermined the usefulness of negative constitutionalism and the liberal understanding of the social contract.

3. Populists Dismantling of the Liberal Social Contract and the Public–Private Divide

The birth of modern liberal constitutionalism was based on the idea of the social contract, elaborated in the works of Thomas Hobbes, John Locke and Jean-Jacques Rousseau, and the separation between the public and private sphere, the latter conceived as an area free from government interference. Social contract theories provided an important symbolic framework for modern constitutions, which were adopted to limit the exercise of power by government and establish zones of private autonomy. The public-private divide is thus central to the concept of limited government, as it aims to „prevent power from substituting itself for society” and „to prevent society from appropriating all power to itself” (Gauchet, 2009). Ideally, the distinction between the public and private spheres serves to mitigate the temptation of the ruling majorities to decide on the only acceptable vision of the good life (Sajó and Uitz, 2017:16).

Since ancient Greek times, the public sphere (polis) has been associated with rational debate as the domain of men, and the private sphere (oikos) with family and the household, where men and women played distinct roles (Aristotle, 1984). In this vein, Rawls (2001) distinguished between the basic structure of society and its basic institutions, which belong to the political sphere, and voluntary associations and personal and family relationships, which belong to the non-political sphere. For Rawls, public space excludes not only the prejudices of participants, but also certain topics that cannot be effectively discussed. Similarly, Habermas (1991) argued that existential questions that are not about justice but about the good life or distributive problems can only be resolved through compromise and are outside the realm of rational debate.

Locke's social contract, in particular, provided a legitimizing theory for asserting the political power of the people over the king, but in reality, it was “an elaborate trick devised by property-holders to protect their interests: the claim that the establishment of a regime governed by law provides security and liberty” (Loughlin, 2015:8). For Locke, the purpose of a constitution is to preserve pre-political rights, not to grant them. This is because the social contract is made only by rights-bearing individuals. This account thus implies a vision of negative bourgeois constitutionalism (Somek, 2014). In contrast, in Rousseau's theory, the social contract replaces natural inequality with political equality, a necessary condition for the emergence of a unified will (Rousseau, 2018). That said, it has become clear, in the following centuries, that political equality is worth little in the face of existing social inequalities.

The theory of the social contract laid the foundation for the U.S. Constitution, which still serves an important inclusive function in American society today, However, it is also an example of exclusionary constitutionalism that disregarded the poor, people of color and women (Rubio Marin, 2021). Even after census suffrage (in which voting rights are determined by economic status, wealth or education) was replaced by equal suffrage and African-Americans, as well as women, were granted the right to vote, political equality was only a formal principle to legitimize power. In reality, the conditions for participation in power proved limited. While historical inequalities are difficult to rectify, liberalism does not condone intensive interference with personal status. The guarantees of liberal freedoms have become the privilege of those who have the resources to claim them. Only to a limited extent have they become a source of social transformation toward true emancipation and freedom.

Populism has thus exposed the weakness of the social contract, which assumes the preservation of a private social order. It exposed the utopianism of the liberal belief that individualism and the merit principle would lead to political, economic, and social institutions that serve not only freedom, but also equality (equal opportunity for all). Instead, liberal capitalism (liberalism and capitalism as its product) has exacerbated economic and social disparities (Piketty, 2020; Milanovic, 2019). For this reason, populists have used growing income and wealth inequality to accuse political elites of selfishness (Inglehart and Norris, 2016; Iakhnis et al., 2018). Therefore, the success of populists can be linked to economic inequality (Stankov, 2018; O'Connor, 2017) as voters of populist parties or candidates are largely, but not exclusively, from underprivileged classes, and there are clear links between the rise of populism and the 2008 global crisis (Guriev and Papaioannou, 2020). For some voters, the choice of populists had an ideological and cultural rationale - as opposition to the moral relativism and corruption with which populists identify the political establishment.

Populism has also unveiled the weakness of social consensus, which according to John Rawls (1987) can be generated even in heterogeneous societies. The idea of overlapping consensus assumes that individuals who adhere to different comprehensive doctrines are capable of agreeing on solutions in the name of public reason (Vallier, 2011). Rawls (1993) believed that even deeply opposing but reasonable comprehensive doctrines can live together and all affirm the political concept of a constitutional regime. His belief proved naïve over time, because it expects that adherents of non-liberal (illiberal) doctrines will recognize the superiority of liberalism over time. In fact, proponents of illiberal comprehensive doctrines seek to extend the reach of those doctrines into the public sphere to influence public policy and law. The populist subordination of the institutions of the state to the ruling majority allows them to achieve this goal.

Populists thus moved to dismantle the division between the public sphere and the private sphere, which liberalism deemed free from state interference. By leaving individuals and their voluntary organizations, such as churches and religious associations, free to pursue their own conceptions of the good, political liberalism allowed the private sphere to become a terrain of oppression and subjugation. From the perspective of legal feminism, classical theories of the social contract have given rise to a sexual contract in which men exercise power and women perform domestic duties, and the law systematically fails to recognize women's ability to play an active role in the public sphere and refuses to recognize their contributions to the private sphere as civic contributions (Pateman, 1988). In this view, classical theories of the social contract promote what is implicitly a masculine, white standard of objectivity, especially in liberal jurisprudence (MacKinnon, 1989). While liberalism is attractive to feminists because of its emphasis on autonomy and freedom of personal choice, feminists argue that principles of justice should also apply to the private sphere (Okin, 1991).

Populists have not only taken advantage of the fact that the private sphere in the liberal state has largely remained a sphere of subordination and gender hierarchy (Stopler, 2021). Populists have also exploited the fact that the private sphere is not (and never has been) a zone free of state intervention. In their attack on the rights of women and sexual minorities, they have shown that private and family relations are shaped and sustained by law and court rulings. The populists have thus effectively rejected the liberal division between the public and private spheres in order to reclaim and dominate the private sphere.

Although it is important not to replicate the division of political actors into only two categories of liberals and populists (Paternotte and Verloo, 2018), liberals for the most part have no genuine interest in realizing women's rights or strengthening their political participation, and populists eagerly encroach on the private lives of women and sexual minorities to recover impugned masculinity and a patriarchal private sphere.

4. Right-Wing Populist Gender Backlash

In the following section, I show how the takeover of liberal institutions by right-wing populists has enabled a reversal of women's rights and the rights of sexual minorities. Right-wing populists are politicians with socially conservative views, although some also adhere to socialist views on state interventionism or social welfare. In their rhetoric, but also in their policies, right-wing populists recognize that same-sex rights, transgender rights, and progressively formulated reproductive rights threaten the family and the nation, and thus the state (Roggeband and Krizsán, 2020). They also oppose and reverse the application of anti-discrimination laws to allow both public and private entities, including corporations and private companies, to deny publicly available services based on religious beliefs. In this sense, the right-wing-populist backlash against women's rights and the rights of sexual minorities is a struggle for ideological cultural domination (Kuhar and Paternotte, 2017).

Globally, these strategies are presented as a cultural war against an invisible enemy - the so-called “gender ideology” (Butler, 2021). Anti-genderism is essentially a conservative defense against progressive laws promoting the rights of women and sexual minorities, combined with a critique of neoliberalism and globalization (Graff and Korolczuk, 2022). To this end, populists also use international forums such as UN bodies (Farrall, 2021; Rana, 2021) and international courts (McCrudden, 2015). In addition, they rely on a network of right-wing fundamentalist organizations and their funding in their fight against gender ideology (Datta, 2021). They also restrict civil society organizations that support women and LGBT people and limit their access to public and foreign funding. In its extreme form, backlash against the LGBT community takes the form of legal harassment and police violence against LGBT activists (Amnesty International, 2022).

The populist backlash against gender has particularly strong cultural resonance in Central and Eastern Europe (further CEE). Right-wing populists denounce gender as a product of feminism and link it to Marxism or neo-Marxism (Grzebalska, Kováts and Pető, 2017). In the CEE, the word “gender” is not easily translated into national languages and carries a heavy emotional charge of defending national values against the West. Hence, right-wing populists portray gender as colonization of the East by the West (Ostolski and Graff, 2020). They defend the biological notion of “gender” and biologically determined social roles (and thus patriarchal culture) and claim that gender (ideology) contradicts their national constitutions and identities.

The first area of populist backlash against women's rights is the sphere of reproductive autonomy. Populists have violently encroached on this sphere by keeping a pregnancy registry (Kocemba, 2022) or ordering women who choose abortion to listen to the fetal heartbeat (Strzyżynska, 2022). Their loudest chord was the overturning of the right to abortion as a fundamental right by the U.S. Supreme Court in Dobbs v. Jackson Women's Health Organization ² and the declaration of the unconstitutionality of abortion laws in situations of severe prenatal fetal defects by the Constitutional Tribunal in Poland. ³ . While the tightening of abortion laws is not a peculiarity of populist governments, it would not have been possible in either the US or Poland if the ruling populists had not staffed the highest courts with their loyalists. These two cases also show the close alliance of conservative political movements and religious organizations, which often work together in global networks to reverse progress on reproductive autonomy, access to contraception and assisted reproduction, and sex education (Suchanow, 2020).

The second area of populist mobilization is the restoration of the family order based on marriage between a man and a woman and their biological offspring. To this end, they attempt to write the definition of marriage and family in the text of the constitution. In their proposals for constitutional amendments, they limit the definition of marriage to heterosexual unions only and exclude other forms of families from the scope of constitutional protection. In most cases, they then put these proposals to a referendum vote but less often do they succeed in actually changing the constitution. Referendums on the constitutional definition of marriage and family were held in Bulgaria (2018), Croatia (2013), Estonia (2021), Latvia (2021 and 2022), Romania (2018), Slovakia (2015), and Slovenia (2012 and 2015), but led to the successful passing of the constitutional amendment in Croatia.

Populists also undertake campaigns that portray LGBT people as pedophiles and in need of conversion therapy. In some countries, populists pass laws that take away the rights of LGBT people once obtained. In Hungary, populist government prohibited legal gender reassignment, and the Hungarian Constitutional Court upheld this ban in 2023. ⁴ In Poland, more than a dozen local governments with populist majorities have adopted a declaration to introduce LGBT-free zones. Although in most cases they have been invalidated by administrative courts as illegal, in a few cases they remain in force and there is no agreement to revoke them. The fight for the family also affects the level of education, where populists introduce bans on “promoting homosexuality” in schools and restrict school authorities from cooperating with organizations working for tolerance and equality. Further moves include the ban on gender studies in Hungary and the attempts to introduce such a ban in Romania (Brodeală and Epure, 2021).

A third area of struggle for right-wing populists in Europe is the rejection of the Istanbul Convention on preventing and combating violence against women and domestic violence. The convention defines gender as “the socially constructed roles, behaviors, activities and attributes that a given society considers appropriate for women and men” (Article 3(c)) and holds gender stereotypes as a main source of violence against women. While several countries in the CEE region have refused its ratification, Turkey recently denounced the convention, and the Polish government is considering such a move. Moreover, the Bulgarian Constitutional Court has ruled the convention unconstitutional (Vassileva, 2018), and a similar motion is pending before the Polish Constitutional Tribunal. At the same time, populists in these countries claim that their laws effectively protect victims from domestic violence. They allege that national legislation protects women better than “foreign” norms, which is supposedly evidenced by the low level of reported violence. However, low reporting of domestic violence is not an indicator of the true scale of the phenomenon, but lack of trust toward law enforcement.

Despite the significant erosion of the rights of women and sexual minorities in countries ruled by right-wing populists, they remain popular. So one may wonder what lies at the root of their success and continued popularity. Undoubtedly, one explanation for why populists are popular, including among women, is their social programs aimed at families and the elderly. Social programs in Poland or Hungary were adopted to stem the trend of demographic decline, and while they have not helped increase fertility rates, they have undoubtedly been an effective means of combating extreme poverty for both families with children and the elderly. What's more, in Poland, the 500 + program, like the school subsidy program or other child benefits, is not contingent on Polish citizenship and is also available to refugees from Ukraine. While this is an element of public handouts, targeting specific groups of voters and contributing to the growing public debt, no previous government has made such a gesture. In this case, populist redistributive programs accurately diagnosed social needs and formed the basis of a new social contract (Adamski, 2019).

Therefore, the success of right-wing populists cannot be explained only by the mobilization of voters opposed to new social movements (feminism, anti-racism, multiculturalism, LGBTQ rights) and the emancipation of minority groups. It is also a consequence of long-term working-class disenfranchisement and social fatigue with “the lethal combination of austerity, free trade, predatory debt and precarious, poorly paid labor that characterize today's financed capitalism” (Fraser, 2017). The blame, then, lies with elite or corporate liberalism, which has failed to listen to the demands of working people, including working (single) mothers, for access to publicly financed education, child care or health. In this regard, some right-wing populists have responded to the problem of the financialization of care and the erosion of social rights by borrowing from feminist discourse a critique of the undervaluation of care as a valuable activity.

5. From Negative Liberties to Positive Obligations

The encroachment of populists into the private sphere shows the extent of disillusionment among citizens who condone such drastic restrictions on their freedom (privacy). Apparently, neither the concept of limited government nor negative liberties creates a lasting foundation for the community, so that its members are ready to defend them from those who want to destroy them. Perhaps, then, liberal constitutionalism has not brought individuals a sense of true freedom. It certainly did not instill in them a sense of responsibility for the community. As communitarians argued in the 1980s, individualism and self-reliance as a social virtue is a trap because society weans itself from thinking in terms of duties and belonging (Sandel, 1981; Taylor, 1985). Such thinking is also not generated by state-centered ideologies, because the legal imposition of duties does not give a sense of belonging, but of coercion, and builds a wall between society and the state coercive apparatus.

The problem with limited government and negative liberties is that they focus on guarantees of individual rights, but not on their effective implementation. Moreover, limited government remains passive in the face of oppression within communities, including religious communities that hide behind their autonomy. What is needed, therefore, is an active government that respects negative freedoms, but does not leave individuals to fend for themselves in the face of crisis. It is a government that grants autonomy to communities, including those that preach traditional values, but also responds effectively to oppression within their structures. It is also a government that responds to popular concerns and is open to the political participation of new social groups and, above all, to the alternatives they propose (Grzymala Busse, 2019). More specifically, the government must not stop at merely guaranteeing negative freedoms, but fulfill its positive duties to individuals and their communities and promote the realization of the duties of individuals and their communities to each other.

This normative proposal is a reminder that modern constitutionalism requires not only mechanisms to limit the arbitrariness of majority power, but also the active participation of the state in the realization of rights. This proposal recognizes the complementarity of negative and positive constitutionalism, and consequently of negative freedoms and positive duties. The above perspective is not new, but it resonates better with the European tradition of statehood and the welfare state. Moreover, in Europe, this vision is shaped by the jurisprudence of the European Court of Human Rights, which exposes the notion of positive duties that states should fulfill (Xenos, 2012).

Historically, positive constitutionalism derives from the much older Aristotelian tradition, which focuses on the effectiveness of the state and state institutions. In its weak version, the constitution legitimizes state power not only in what it constrains, but in what it enables (Stone and Weis, 2021). This means that both the limiting and enabling functions of the state (and its constitution) should focus on the well-being of the people (Barber, 2018; Jackson, 2010; Waldron, 2009). Therefore, an essential function of the state is to promote the pursuit of human flourishing, rather than mere individualism or laissez-faire (Waldron, 2016). In addition, positive constitutionalism authorizes state actions that protect individuals from both external threats and threats arising from private relationships. Hence, positive constitutionalism is not a new invention, as it is part of contemporary constitutional designs. As Martin Loughlin noted, its strength has grown as the utopian (idealistic) aspects of constitutionalism have declined, inversely proportional to the ability of governments to demand sacrifices from their citizens for the sake of future rewards (Loughlin, 2015:20).

From the perspective of women, positive constitutionalism realizes the expectation that an active state will improve the position of women in private and family relationships and in the labor market, as well as provide public services that socialize care work. An active state should not only provide remedies for existing violations, but also take proactive measures for equality and autonomy in horizontal relations. This expectation confirms that the private sphere cannot remain free from state interference. However, this interference can only be justified by defending individual autonomy. Consequently, human rights should be understood as safety valves when interpersonal relationships fail (Waldron, 1988). Depending on the context, privacy should mean both the right to be left alone and the right to state or social support, hence - the right not to be left alone.

6. Reimagining Women's Rights as Positive Obligations

The above sections have shown that the sin of liberalism is to withdraw from the private sphere and leave women to their fate within unequal social institutions. Populism, on the other hand, positively affirms the inequality (complementarity) of men and women within social institutions and entrenches patriarchal gender roles. The answer to this problem of the liberal government's absenteeism, on the one hand, and the populist government's ideological domination of the private sphere, on the other, is the proposal of positive constitutionalism, which aims to activate state resources for the realization of human rights. In this perspective, human rights are not only a shield against the interference of public power, but also a claim of individuals and their communities for state actions.

In this proposition, positive constitutionalism finds a source of autonomy in relations. This understanding of autonomy is developed by Jennifer Nedelsky in her seminal book. She argues that “[t]he collective is not simply a potential threat to individuals; it is constitutive of them and, thus, a source of their autonomy as well as a danger to it” (Nedelsky, 2011:132). She further notes that “the aim is not to achieve mythical autonomy, but to arrange relationships in a way that promotes autonomy” (Nedelsky, 2011:118). She also demonstrates that liberal individualism ignores how our basic humanity is neither possible nor understandable without the network of relationships of which it is a part (Nedelsky, 2011:248). Although feminism draws its interest in autonomy from liberalism, feminists understand that relationships can be both a source of freedom and oppression.

The idea, then, is that the state should promote the kind of relationships that provide individuals with autonomy, and rescue them from the kind of relationships that are oppressive. The question is how the state should shape and maintain relations between people so that they serve autonomy. This question presupposes that, like autonomy, rights are also relational: rights-holders are always matched with duty-bearers. Above all, however, rights require the creation of the conditions for their realization, that is, appropriate institutions, procedures, and public services, as well as broad social acceptance and participation. Only then the gap between law in books and the law in action vanishes.

Adopting this perspective, women's rights need to be reimagined not as “autonomous” individual rights, but as claims that depend on a network of institutions, procedures, and people who implement them. Women's rights, to be effective, require state action, but also the reformation of social relations. A shift in thinking in this direction is already taking place in the area of key reproductive rights, which definitively cannot be understood as “rights to be left alone” (Brandeis and Warren, 1890). Reproductive rights, and related sexual rights, are about access to appropriate services, but also about the procedures for obtaining that access. There is already a change in the understanding of reproductive and sexual rights, not as privacy or freedom from state interference, but as rights of access and health care, or in classic terms - social rights. This shift is due to the recognition of the sources of social inequality, which lie mainly in social relations. Importantly, limiting reproductive autonomy can perpetuate gender stereotypes and exclude women from participating in public life.

This paradigm shift in conceptualizing reproductive rights occurs now in constitutional jurisprudence. In the newest case-law, restrictive abortion bans are seen as a failure by the state to fulfill its positive health care obligations. Examples include the rulings of the Supreme Court in Nepal ⁵ and also the Colombian Constitutional Court. ⁶ Both decisions emphasize that criminalizing abortion not only violates the state's negative obligation to respect women's fundamental rights, but also the state's positive obligation to ensure women and girls’ right to health. While reproductive and sexual rights have long been defined in international human rights law as an element of the right to health, the adoption of this perspective by constitutional courts marks an important progress. In this view, the right to health is not only justiciable, but involves the state's obligations to ensure the availability, affordability, quality, and sustainability of professional health care. This framing is in line with the theoretical concept of positive constitutionalism, which reads the role of the state as an enabler of well-being.

In a similar vein, the Supreme Court of India emphasizes the dualistic nature of the state's obligations to women - first, to respect their choice, and second, to provide them with medical services. ⁷ Moreover, it invalidates the socially stigmatizing distinctions between single and married women. The Mexican Supreme Court, on the other hand, lists the conditions that the state must meet to allow women to exercise their freedom of choice until the twenty-fourth week of pregnancy. ⁸ While in all of these countries one might expect a gulf between the declaration from the judge's mouth and social reality, the rulings impose clear obligations on the legislature. Interestingly, in Spain, the legislature adopted a similar perspective without a court ruling, and amended the organic law on sexual and reproductive health. ⁹

Similarly, the fight against private violence requires not only redefining violence against women or domestic violence, but also making procedures to combat it socially effective. Therefore, the state should not only create effective procedures for responding to violence, but also build the confidence of society, including victims, in their enforcement. Although the law in question essentially implies negative freedom from bodily harm, its actual implementation requires the fulfillment of positive duties - not only by the state, but also by society. For this reason, the state should properly shape the perpetrator-victim relationship, but also the perpetrator-society and victim-society relationships through the law. Naming their specific rights and obligations in the law is not enough for society to change its attitude toward violence. Therefore, the state needs to take steps targeting various sectors of society to internalize the prohibition of any violence and reject its justification. Further steps would include mobilizing these groups - including religious communities - to develop other non-violent ways of discharging human emotions (such as anger, frustration or fear). Only then will we be able to reimagine violence as a social problem rather than a private matter. This change has already occurred in several countries as the prohibition of gender-based violence was explicitly enshrined in their constitutions. ¹⁰ Moreover, such prohibitions apply not only to institutional violence, but also violence in the family and in the society.

7. Conclusions

The reimagining of women's rights shows a shift in thinking about human rights not as a shield, but as a claim on the state. At the same time, positive constitutionalism assigns new functions to all components of liberal constitutionalism, such as separation of powers, rule of law and democracy. While in negative constitutionalism the separation of powers is constructed as a mechanism to constrain and control the government, in positive constitutionalism it emphasizes the differences in the competence of the various branches of government, as well as the need for them to work together to ensure the welfare of all citizens. While in negative constitutionalism the legislature establishes legal restrictions on human rights, and the courts examine their justifications (proportionality), in positive constitutionalism the legislature adopts laws enabling the realization of human rights. In turn, the executive branch is responsible for the effective operation of public services, as well as the control of private entities responsible for providing services available to the public. Finally, the role of the courts is not only to examine whether public officials have exceeded their powers, but whether they have contributed to ensuring individual autonomy.

Further, the rule of law is not only to deter arbitrariness of power, but to create laws that realize the autonomy of individuals and their communities. To this end, the law is to be clear and precise, and to provide for appeal procedures and for the participation and hearing of concerned individuals and their organizations in these procedures. Similarly, the principle of democracy should be realized not only through majority rule, but through as many self-determination venues as possible. These forums for self-determination should allow for the participation and hearing of various stakeholders. Ensuring the participation of all those who are genuinely interested (either for ideological reasons or because of knowledge, personal experience or competence) in influencing a given area of regulation will simultaneously ensure broad inclusion and foster pragmatic solutions.

Just as liberals once created a vision of a society of free individuals based on the concept of property and autonomy in the private sphere, positive (post-populist) constitutionalism should now be based on a vision of interdependent individuals and the concept of mutual care. As Nedelsky observes “[i]f we ask ourselves what actually enables people to be autonomous, the answer is not isolation, but relationships—with parents, teachers, friends, loved ones—that provide the support and guidance necessary for the development and experience of autonomy” (Nedelsky, 2011:124). Such a vision implies not the protection of property as the basis of the social contract, but the care and creation of conditions for the development of one's own abilities. This is where it resembles the childrearing model. The sense of belonging to a society cannot be built on the promise of equality of opportunity in the enjoyment of rights, which in reality amounts to a legal right to justify limitations on rights (Kumm, 2010). Instead, belonging must be founded on the effective realization of rights. Therefore, the state should be held accountable not for whether it proportionately restricts rights, but for whether (and how) it seeks to ensure their fullest possible realization for all.

Positive constitutionalism recognizes the active exercise of political power by the state in the spirit of liberal egalitarianism. In this spirit, liberal egalitarianism and social welfare are seen as essential for human flourishing and the realization of political egalitarianism. In this regard, the idea of positive constitutionalism contradicts the original idea of the U.S. Constitution: that “the people who wrote the Bill of Rights were not concerned that government could do too little for the people, but that it could do too much for them.” ¹¹ The shift from negative constitutionalism to positive constitutionalism in the spirit of liberal egalitarianism and the welfare state also justifies the move away from using the bourgeois-liberal “privacy” argument in defense of social security. On the contrary, the strength of the state comes from how it fulfills its obligations to society, by promoting social solidarity and public services, the lack of which becomes a social hardship for the poor and a social obligation for women.