Addressing democratic backsliding
Panel formed with individual proposals.
Authoritarian ideologies towards law and legal institutions are a determining feature of law and politics in these regimes. As scholars pay greater attention to historical authoritarian regimes, the role of courts and possibilities for resistance comes to the fore. We observe a good deal of variation between the two main authoritarian ideologies of Europe of the twentieth century, Nazism/ fascism and communism. This article surveys the literature and develops a framework for understanding under what circumstances authoritarian rulers resorted to independent legal institutions as a means of repression and legitimation, how they sought to obtain the compliance of these institutions with their policies of oppression, and what we can learn from these experiences for addressing the current authoritarian turn in the EU. The analysis relies on Hungary as a case study and draws on archival materials of the Hungarian Socialist Workers' Party concerning the judiciary (1957-1988).
How and why do apex courts matter in shaping the legal regime of regulation of rights in the name of democracy protection? Conventional answers distinguish between ‘militant‘ and ‘tolerant‘ approaches but, aside from a few theoretical accounts, miss the wider variety of positions available and the ways how courts are essential in choosing among them. Using examples from apex courts in Czechia, Hungary, and Slovakia, all systems facing or undergoing democratic deconsolidation, this paper develops a more elaborate conceptualization of judicial approaches to protection of democracy. The resulting typology improves the understanding of the diverse responses of apex courts to the challengers of democracy. It also serves as a starting point for understanding the apex court-generated conditions that affect the capacity of antidemocratic actors, if they gain power, to ‘abuse‘ the very same court for the purpose of cementing their position in the political system.
In their recent book How to Save A Constitutional Democracy, Tom Ginsburg and Aziz Huq have effectively presented different methods of democracy erosion and possible techniques to confront the erosion. They argued, among other things, that militant democracy framework, the European most widely accepted device for democracy self-defense, is not just an inadequate technique for confronting democratic backsliding but also may turn dangerous in practice as it may discriminate minorities, especially Muslims. In this paper, I will argue that militant democracy should be distinguished from the idea of a “counter-terror“ state and interferences with the public manifestation of one‘s religion, and show that militant democracy measures could be a barrier to illiberalism (together with other anti-erosion measures), especially if imposed by translational and international institutions.
Whereas populism and democratic decay have received significant attention in constitutional scholarship in recent years, solutions on how to manage harmful political populism are underdeveloped. This paper proposes civic education as a solution to harmful populism. The paper makes two main claims: that constitutional civic education provides a powerful tool to counter harmful populism - and that there is a significant overlap between the ends of constitutional civic education and constitutional theory. With regard to the former claim, studies show that levels of constitutional and political knowledge foster greater faith in democracy and trust in constitutional values and institutions. With regard to the latter, it argues that civic education and constitutional theory both share similar aims including supporting a robust public sphere and avoidance of the domination of citizens - a relationship which warrants further attention in constitutional scholarship.
Based on the invocation of the “people“ populist projects seek to justify mis(uses) of constitutional law, to reach their political goals. Over the past decade a wave of authoritarian populism has emerged in international level, which poses a serious threat to constitutional democracies, once it priorizes national security over civil rights. The paper aims to analyze the authoritarian populist constitutionalism of Bolsonaro‘s administration in Brazil during the Covid sanitary crisis. The study of the relation between populism and constitutional law is important, especially during the pandemic, because of populist governments‘ attempts to concentrate powers through emergency normative acts. The Federal Supreme Court has played an important role in this context: within its judicial review competences has responded firmly to the populist attacks by the federal government. One can only hope that the STF itself does not take a populist stance and resist bravely the drive of public opinion.