Constitutional hypocrisy

Scholars have long been preoccupied with settings where a valid constitutional text exists yet is somehow detached from the reality of political power (described as sham, token or pseudo-constitutionalism). ‘A constitution without constitutionalism’ is sometimes depicted as a state where the conditions for the functioning of constitutional rules do not yet exist. I shall argue that both these approaches are ill-adapted to capture the phenomenon of constitutional hypocrisy: a setting where the impression of constitutional government is studiously maintained whilst the constraining force of the nominal constitution is effectively switched off. This phenomenon deserves much more attention, also in the EU where the rule of law is imposed as a legal requirement on regimes verging on authoritarianism. Europe is often presented as a model for others. In this case, however, we can better understand European developments by looking at some abusive political practices in Africa and Asia.