A ‘Counter-playbook’ of Constitutional Resilience against Democratic Erosion: Any Lessons from Belgium?

This paper aims to identify elements of constitutional resilience against democratic erosion by analysing the relative resilience of the Belgian constitutional order against capture by populist parties. A series of potential primary and secondary constitutional safeguards, among which consociational democracy, federalism, proportional representation and compulsory voting, will be discussed. Although the analysis will focalize around the (potential) threat of the radical right Vlaams Belang party, the broader point of the paper is that a scenario (cf. Poland or Hungary) in which a single political party captures the Belgian constitutional order appears impossible. However, the lessons we can draw from this particular context for the development of a ‘counter-playbook’ of constitutional resilience remain limited, given that several of the identified elements of constitutional resilience cannot migrate easily to other constitutional settings.

Constitutional Openness versus Sovereignism: The Case of Italy

This paper explores the relationship between populism and constitutionalism in the context of Italy. In Part I, it will be argued that the relationship between populism and constitutionalism should not be seen in terms of mutual exclusion and perfect opposition. Indeed, populism frequently relies on concepts and categories drawn from constitutionalism, trying to reshape them and offering in this way a sort of constitutional counter-narrative. In this sense, the populist approach to constitutional categories can be described in light of two concepts: mimesis and parasitism. Both populism and constitutionalism are based on distrust towards political power and refer – prima facie – to similar concepts, but this analogy cannot be extended further. It will be argued that in constructing a constitutional narrative, populism borrows from the radical constitutional tradition, the revolutionary one. In Part II, the paper will deal with the connection between identity politics and sovereignism.

Resilient Legal Culture? How to Deal with Elements of Authoritarian Populism in Austria

Are we witnessing authoritarian populism in Austrian politics; and is Austrian democracy in decay? This paper seeks to answer these questions by taking stock of recent developments in Austria. The analysis will first outline several recent political scandals (1.). Second, the concept of authoritarian populism will be defined (2.). Afterwards, a matching analysis will be performed to evaluate whether political events fit the definition of authoritarian populism (3.). Based on this analysis, a diagnosis will be made that democracy is indeed in decay in Austria. Recent political events show a decrease in the functionality of Austrian democracy (4.). In response to this finding, the paper asks what constitutional law in particular and legal culture in general can do to prevent such events. It will also provide some proposals promising some relief (5.). The immediate future, however, seems rather dark since those protagonists who would need to act seem to be those in need of correction.

How Vulnerable Would the German Federal Constitutional Court be in the Case of an Authoritarian Populist Takeover Attempt?

The Federal Constitutional Court enjoys a far higher level of trust among citizens than any other state organ in Germany. But that trust could be quickly eroded if an authoritarian populist party decided to turn against the Court, particularly in the case of electoral victories at state and federal levels. This paper examines which features of the German constitutional and legal order an authoritarian populist party could exploit to undermine and ultimately take control of the Federal Constitutional Court, and which options exist to improve the Court’s resilience against such a challenge.

German “Militant Democracy”: A Solution to or a Step Towards Democratic Erosion?

German ‘militant democracy’ is sometimes regarded as a possible solution to recent authoritarian tendencies in democracies. The doctrine makes it possible to ban political parties, associations, monitor political groups etc. However, rather than offering a solution, these capacities of state authorities might breed authoritarian effects of their own. The paper will ask how Germany – and other countries – should deal with this well-known dilemma. The question has come under renewed scrutiny because of the recent rise of the far-right AfD party. The paper will evaluate, among others, whether the AfD should be monitored by domestic intelligence services as an alternative to a party ban.