Liberal Nationalism’s Precarious Prospects

This chapter pays tribute to the concerns that animate Sadurski’s work by examining one of the more intractable sets of reasons why liberty—and liberalism—demand eternal vigilance. The immediate political context of the liberal regime is typically the sovereign nation state. Equally, the immediate political context of the illiberal regime is also the sovereign nation state. This is no coincidence. Liberalism and illiberalism alike identify sovereignty and nationalism as important enabling conditions, and there is sufficient overlap in the manner in which and the consequences with which enabling operates in these ostensibly contrasting regimes that there is inevitable seepage from one to the other. Illiberalism, then, should be considered as the shadow and temptation of liberalism, as much as a reaction against it. The chapter assesses and compares the apparently rising prospects of populist illiberalism today in both Central and Western European states, keeping that close relationship in mind.

Extracting Voters from the Nation

Regimes that operate in a democratic manner without offering the possibility of changes in who rules the country represent the ultimate problem of illiberal democracies and authoritarian rule in general. The shaping of the electoral system in the 1860s and 1870s in England and Hungary was decisive for regime building. In liberal Hungary, the franchise and the electoral system were frozen because of nationalist hegemony. In consequence the governing party remained in power until the collapse of the country in 1918. In England, accidental reform enabled in the long run adaptation to social change and rather peaceful incorporation into the electorate of the working classes, which were thought in Hungary in the 1860s as dangerous, risking the establishment of national minorities. The Hungarian parliamentary debate indicates the importance of comparative constitutional law for liberalism.

Breaking Down the Meaning of Constitutional Breakdown

This chapter argues that Wojciech Sadurski’s work on the deterioration of Polish democracy suggests the Polish context may present a bridge between two key conceptual frameworks: democratic breakdown and democratic decay. In his 2019 book Poland’s Constitutional Breakdown Wojciech employs the term ‘constitutional breakdown’ to describe how the ruling Law and Justice (PiS) party has seriously degraded the democratic constitutional order since 2015. The concept of ‘breakdown’, which has a long pedigree, has fallen out of favour in contemporary literature on the deterioration of democracy worldwide, which rather emphasizes the decline of total breakdown and argues that slower, subtler dismantling of democracy is the dominant threat. This chapter explores the relationship between these frameworks by reflecting on why Wojciech frames the Polish experience as ‘breakdown’ rather than ‘erosion’ or ‘decay’, whether ‘breakdown’ literature offers useful insights beyond ‘democratic decay’ literature, and why Wojciech refers to ‘constitutional’ rather than ‘democratic’ breakdown.

Two Charters and a Pillar

This chapter retraces the post-enlargement trajectory of the protection of fundamental social rights in Europe. The chapter selects three years that signpost this trajectory: 2000, when the EU’s Charter of Fundamental Rights was adopted, with the inclusion of a social rights chapter; 2009, when the Lisbon Treaty seemed to contain a renewed promise of social progress in the Union; and 2017, when the European Union launched a European Pillar of Social Rights, as part of an effort to revitalize the social protection agenda of the European Union after the disappointing post-Lisbon years.

A Social Theory of Constitutional Imaginaries

This chapter focuses on the concept of constitutional imaginaries and their classic legitimation semantics of topos-ethnos-nomos. Constitutional imaginaries are considered internal symbolic constructs of self-constituted positive law and politics which make it possible to describe functionally differentiated modern society as one polity and distinguish between legal and political legitimacies and illegitimacies in this polity. They are not limited by the unity of topos-ethnos-nomos and evolve in national as well as supranational and transnational constitutions. In the context of European constitutionalism, general imaginaries of common market, universal rights, and democratic power are thus accompanied by specific imaginaries of European integration through economic performativity, social engineering, legal pluralism, and political mobilization. These imaginaries show that political constitutions include a poietic societal force impossible to contain by autopoietic legal norms and political institutions.

Reinvigorating Democracy in the European Union

This chapter begins with a brief summary of two sets of democratic challenge facing Europe—the original ‘democratic deficit’ of the EU and the more recent growth of populist illiberalism—which have in common the erosion of trust in conventional political institutions and processes. It considers these democratic challenges alongside another contemporary phenomenon, namely the growth of interest in alternative forms of citizen participation, whether deliberative, popular, digital, or other, in various parts of the world. The chapter moves on to examine in more detail a recent experiment with deliberative citizen participation in one EU Member State, namely Ireland’s use of citizens’ assemblies to introduce constitutional and public policy change, and asks whether Ireland’s experience could offer any possible lessons to address some aspects of the EU’s democratic ills.

The Rule of Law Paradox in the 2016 Constitutional Amendments in Albania

In 2016, the Albanian constitution underwent the most comprehensive constitutional reform since its adoption in 1998. One of the purposes of this reform was to transform the judicial system in Albania in order to detach it from corruption. One of the novelties of the reform was the vetting process of judges and prosecutors at all levels, including judges of the Albanian Constitutional Court. Following termination of mandates of some of the members to the Court, dismissals, and resignations in the context of the vetting process, Albania’s Constitutional Court did not function for more than a year. Although indisputably the constitutional reform and more specifically vetting were designed as a means of guaranteeing the rule of law, it seems that they were contributing factors to the stalemate within the Constitutional Court, thus ultimately undermining the rule of law. This chapter unfolds this paradox in Albania, an EU candidate country.

Public Reason and Illiberal Democracy

Illiberal democracy is characterized by four features: pretending to play the democratic rules of the game; instrumental use of the law to gain political advantage; location of the source of political legitimacy in majority rule; and recourse to religiously driven morality as a basis for state action. Paradoxically, in this regime, both legislators and constitutional adjudicators continue to use rational justification to legitimize public policies and court decisions, but the reasons they provide do not indicate an overlapping political consensus on a given matter. This contribution aims to demonstrate that in illiberal democracy public reason ceases to fulfil its two main functions: to discipline those who dominate the political process and to protect the autonomy of those who are prevailed upon. Hence, it argues, public reason in illiberal democracy has a new meaning: it denotes a hierarchy of values that prevail over individual rights and interests.

The Problem of Peer Review in Militant Democracy

Sadurski is the most important interpreter of Art 7 of the Treaty of European Union—the clause that allows for the suspension of membership rights of states that are in violation of fundamental European values. This Article has often been criticized because it involves other Member State governments in deciding whether sanctions are justified. Looked more abstractly, the underlying problem would appear to be the Article's reliance on something like peer review: liberal democratic governments judging whether another government is still sufficiently similar to them. The chapter examines peer review from a normative and legal point of view, not least because it also plays an important role in national forms of militant democracy. This chapter’s argument is that the introduction of what the Venice Commission calls a ‘political filter’ is justified, but there must also be means of getting through the filter in extreme circumstances.

Diffuse Constitutionality Review in Germany

This contribution analyses the cases in which ordinary German judges have annulled statutes for being unconstitutional and thus exercise what is also known as ‘diffuse constitutionality review’. In the past, this used to be the case under the Weimar Constitution and in West Berlin. However, what is less known is that even today, certain statutes that are deemed to be pre-constitutional or certain legislative provisions from the former GDR can be declared as conflicting with the German Constitution. This contribution argues that such diffuse constitutionality review might also have contributed to a further strengthening of the rule of law in Germany. Ultimately, from a comparative constitutional law perspective, this contribution also provides a more nuanced view of the German model of constitutionality review, which has been traditionally classified as belonging to the centralized ‘European’ or ‘Kelsenian’ model, with a specific constitutional court, the Bundesverfassungsgericht, having the monopoly over such review.