The populist transformation of constitutional law: an analysis of « illiberal democracies

A debate is opening up over the term “illiberal democracy” which appears ever more frequently both in journalistic news and in the discussions among jurists. For certain French legal scholars it constitutes an hybridisation of “democracy” and “dictatorship” that would better codified by the term “democratorship” and not “illiberal democracy.” For others, as far as Hungary and Poland are concerned, the use of term “illiberal constitutionalism” is justified. The intellectual misunderstandings and so-called misuses of these terms appear more than normal when it comes to analysing democracy. H. Kelsen had already noticed the contradiction and confusion that the term democracy provokes due to the contradiction between the symbolic and the real of democracy. The aim of this article is to identify these contradictions under the prism of H. Kelsen, F. Zakaria and more recent legal scholars in order to propose a historical mapping of illiberalism, including its political context and rhetoric.