How to detect illiberal constitutional practices? From intent to effect

Recent developments around the world reveal the double-edged capacity of constitutional concepts and the possibility of their abuse leading to illiberalism. Many scholars see a bad faith or abusive intention of the ruling actors as the defining element of illiberal engagement with constitutional law. Yet, bad faith is an elusive concept, hard to detect persuasively since it is an internal category focusing on the ruler’s state of mind. I argue that comparative constitutional studies lack a practicable methodology of detecting bad faith intent. Accordingly, I propose shifting the focus from intent to effects of the legal measures in question. For that purpose, I introduce the test of foreseeable effects which is designed for early detection of illiberal measures potentially leading to democratic decay. I explain the stages of the test and demonstrate them on examples from Central and Eastern Europe.