Illiberal Projects

Project Summary

In recent years, the rise of authoritarian governments in East Central Europe and far right and populist movements across Europe has sparked concern that the liberal democratic order established after 1989 is falling apart. In Hungary and Poland, populist governments are employing the legal system to sustain illiberal forms of rule, cementing control through constitutional reforms.

The current debate centering on Hungary and Poland, however, tends to be either highly normative or highly technical, and, too often, ahistorical. Politically the response on European level to the illiberal turn in these EU member states was unconvincing and inconsequential. We agree with those commentators who argue that this is, indeed, an emerging challenge to Europe as a whole. Given the overall situation at the continent the nascent illiberal constitutionalism in Poland and Hungary might be rather permanent than temporary phenomenon and it might tend to spread beyond these two countries and thus endanger the constitutional and political landscape in EU and beyond. This situation creates an urgent need for interdisciplinary research and for building bridges between scholarly milieus, both geographical as well as disciplinary, which our project seeks to answer.

Thus, we aim to introduce much needed historical, interdisciplinary, practice-oriented and comparative perspectives to academic engagement with illiberal and authoritarian challenges to constitutional democracy. Many commentators have noticed that the illiberal constitutional architects of today were also in the front lines of the democratization movement in the 1980s and of the liberal transformation of the 1990s. This project intends to explain why it was so. We intend to situate present-day conflicts in the longer historical ebb and flow of ideas and practices of constitutionalism, democracy, legality and pluralism in East Central Europe. The project stretches from the post-war era with emphasis on the period since 1968, comprising the era of late state socialism, post-communist liberal transformation, into the present day. This will allow us to show how the rudiments of the rule of law and ‘liberal consensus’ of the 1990s evolved already in the late state socialist period and, similarly, how the rudiments of ‘illiberal challenge’ were born already within the liberal transition period.
This project will show why and how the East Central European experience is relevant to the current populist challenge to the constitutional foundations of liberal democracy in Europe and around the world. It supports junior researchers to focus on cutting-edge research on this urgent challenge, to form transnational network and thus to prepare the ground for their long-term academic engagement in the field.

Illiberal Team

Friedrich Schiller University, Jena

Professor Joachim von Puttkamer (PI Jena and Lead PI)

The Long Shadow of Interwar Authoritarianism

Joachim von Puttkamer will investigate references to the interwar regimes and their institutional setup in the political discourse of Poland, Czechia, Slovakia and Hungary, both in public and internal debates, and their impact on providing the new democracies of the 1990s with a presumed national tradition.

Such references can be traced on various levels, starting with administrative and legal terminology and going all the way to basic constitutional principles. Attempts to reestablish presumed national continuities tended to reach out to the 1930s rather than the 1920s and therefore to emphasize authoritarian rather than democratic elements. The Hungarian debate on how to properly label the Horthy regime’s character is a case in point. While public discourse on collective memory and summary assessments have been well researched, the project will investigate specific debates in the legal, administrative and constitutional fields and analyze them in a comparative framework.

Jakub Szumski, M.A. (Post-Doc)

From Socialist Legality to Illiberal Democracy? East Germany and Poland in Comparison

The period of state socialism in Eastern Europe is often associated with lawlessness and the instrumental use of law for political purposes. At the same time, attitudes towards the law evolved and the countries of the Eastern bloc developed their own ideas of socialist legality.

My project traces this historical development in order to establish the self-contained causes of the rule of law crisis in contemporary East Central Europe. It explores how the notions of legality (praworządność, Gesetzlichkeit) were understood during state socialism in both countries and asks how lawyers, intellectuals and politicians dealt with these notions after the fall of state socialism and what consequences it had on the establishment and the subsequent crisis of the liberal order.

Illiberal Projects

„The project will investigate specific debates in the legal, administrative and con-stitutional fields and analyze them in a comparative framework“

Joachim von Puttkamer

 

„The countries of the Eastern bloc developed their own ideas of socialist legality“

Jakub Szumski

University of Erfurt

Since reunification in 1990, mainstream German political culture has celebrated the year 1989 and the mass demonstrations in the German Democratic Republic that led to the collapse of state socialism as an important milestone in the country’s modern democratic history. It is usually taken as a given that 1989 represents the triumph of liberal democracy, constitutional rule, and the Rechtsstaat over the forces of illiberalism, authoritarianism, and extremism.

This mainstream narrative has, however, been contested by the far-right, which has sought to adopt 1989 and the peaceful revolution in the GDR for their own illiberal agenda. The Erfurt team will be exploring different aspects of how the populist right and the far right have sought to coopt the memory of 1989 and at the same time, examine more broadly the complex relationship between populism, illiberalism, and the peaceful revolution. This will include themes such as right-populist constitutionalism, the much-lamented right-wing turn of East German dissidents, and the far-right memory politics of 1989.

Illiberal Projects

„It is usually taken as a given that 1989 represents the triumph of liberal democracy, constitutional rule, and the Rechtsstaat over the forces of illiberalism, authoritarianism, and extremism.“

Sophie Lange and Dr. Ned Richardson-Little

Sophie Lange, M.A. (Post-Doc)

1989ers. The Peaceful Revolution and the New Right

The focus of the post-doc project analyzes historical roots of present day anti-liberal and illiberal ideas in the (East) German society. Observing the drift by former GDR citizen rights activists to the populist right, it will collectively trace the intellectual and political evolution of prominent dissident figures from the East German civil rights movement during the democratization of the GDR beginning in 1989/90. The project will examine competing visions of democracy from 1989/90, the national and anti-communist currents of the Peaceful Revolution as well as the spaces of cooperation or convergence between elements of the citizen rights activist movement and the populist right.

Dr. Ned Richardson-Little (PI Erfurt)

The Rights of the Volk: Human Rights, the Basic Law and the Far-Right since Reunification

Although commonly understood as opponents of the rule of law, constitutionalism and constitutional rights, in recent years, the German populist and far-right has sought to claim the mantle of the popular struggle for democracy the Basic Law, both historically and in the present. In order to distinguish itself from traditional far right ethnonationalism and avoid being surveilled or possibly banned as a threat to the free democratic order, the Alternative for Germany (AfD) has aimed to portray itself as the vehicle for the realization of the promise of the liberal transition of 1989 and the protector of

the basic rights of the German Volk. Positioning itself not as repudiation of the post-socialist liberal democratic transition, but as its natural heir the AfD and others in the far-right have sought to position any effort by to hinder the party in the name of preserving constitutional democracy as an extremist threat by the far-left, which threatens the rights of Germans and endangers the democratic transition from state socialism.

This surface level commitment to constitutionalism also acts to cover völkisch legal theories that claim the rights of the Basic Law should apply only to members of the German Volk and see human rights protections as foreign interventions in the constitutional order imposed by globalist elites from Berlin, Karlsruhe or Brussels.

 

„Historical roots of present day anti-liberal and illiberal ideas in the (East) German society …“

Sophie Lange

Czech Academy of Sciences, Prague

Dr. Michal Kopeček (PI Prague)

Questioning the Third Branch of Government: Critiques of the Judicial Power in Czechia and Hungary after 1989

Michal Kopeček will trace the various critiques of “juristocracy” and “judicialisation” of politics in the political discourses of two liberal democracies, Czechia and Hungary, throughout the 1990s. The establishment of strong judicial power and introduction of constitutional review—a model transplanted from Western Europe and especially from Germany—had been seen, after 1989, as a natural and uncontested reaction to the “lawlessness” of socialist dictatorships. Yet, judicial activism and alleged discretionary power of constitutional courts have been a matter of political and expert criticism.

The underlying question of the project is why the intra-systemic evolved into the extra-systemic critique of liberal democracy and later illiberal constitutional practice only in one of the two countries in focus.

Matěj Slavík, M.A. (Ph.D. student)

Western Constitutional Expertise in Eastern European Realities: Transfers and Adaptation of Western Liberal Constitutionalism in the Czech Republic and East Central Europe after 19989

In his PhD project, Matěj Slavík will examine the process of constitutional transfer, both institutional as well as normative, that was understood in the transition period as an indispensable precondition for the conformity with Western concepts of “free market” and “pluralist democracy”. The involvement of Western-based constitutional scholars in deliberations framing new constitutional structures following the 1989 democratic revolution will be reviewed with focus not only on their role in the debate regarding the “settings“ of checks and balances but also the one concerning other, less prominent concepts such as the structure of a modern welfare state. As the Federal and later Czech constitutional court played an important role in shaping national constitutional order from the early 1990s until today, its inclination to implement

Western legal concepts into Czech legal system will also be examined.

Finally, an important part of the analysis will be devoted to the process of European integration and its implications for the constitutional discourse in the 2000s, since it represents the most transparent engagement of Western constitutionalism into the realities of East Central Europe enhance also by a new generation of local constitutional scholars often educated at Western universities. Additionally, the Czech constitutional court, for instance, played an important role in this context too, with its case law being prone to follow its German counterpart.

„The various critiques of „juristocracy: and „judicialisation“ of politics in the political discourses of two liberal democracies throughout the 1990’s“

Dr. Michal Kopeček

 

„Involvement of western-based constitutional scholars in deliberations framing new constitutional structures following the revolutions of 1989.“

Matěj Slavík

University of Warsaw

Professor Marta Bucholc (PI Warsaw)

Mapping the discursive resources of illiberal constitutionalism in Poland

My research project consists of two parts: a thematic analysis of the publications in one of the oldest Polish legal journals “Państwo i Prawo” (Law and State) since 1981 (the year when the postulate to establish an institutionalized constitutional review was voiced in Poland by “Solidarność”) until 2021. The historical reconstruction of the academic legal discourse reflected in this journal will be used as a backdrop for a comparative analysis of constitutionalist discourses produced by two juristic think tanks, representing two radically different approaches to liberal constitutionalism in Poland: Archiwum Osiatyńskiego (est. 2017, critical of the current Polish government) and Ordo Iuris Institute for Legal Culture (est. 2013, supportive of the current Polish government).

I will trace conceptual continuities and discontinuities in the illiberal constitutionalist thinking back to the sources in the academic discourse predating both the post-Communist transformation and the dawning of illiberal constitutionalism in Poland.

Naum Trajanovski, M.A. (Ph.D. student)

Historicizing illiberal constitutionalism in Poland: The Ehrlich-Kaczyński link

My research project deals with the recent debates over Stanisław Ehrlich (1907-97) and his theory of state and law in contemporary Poland. A leading legal scholar and editor from the late 1940s up to the 1960s, Ehrlich’s name reemerged in the Polish public discourse after the 2015 governmental change and the constitutional crisis that followed. Ehrlich (and his oeuvre) – as the academic mentor of Kaczyński – thus became the usual suspect when historicizing the Polish constitutional illiberalism, not only via the jurisprudence references, but, more importantly, strikingly similar practices and conceptual approaches (constitution as embodiment of popular sovereignty, supremacy of political will, predominance of executive over judicial power etc.).

To trace the intellectual sources of the present debates and developments, I plan to look at Ehrlich’s editorial work at Państwo i Prawo (State and Law; 1945-66) and The Polish Round Table (1961-66), the reception of his work in Poland and beyond, his domestic and international professional networks and the modes of academic interactions he instigated.

„Trace the intellectual sources of the present debates and developments.“

Naum Trajanovski

Illiberal Projects

„Thinking back to the sources in the legal academic discourse predating both the post-Communist transformation and the dawning of illiberal constitutionalism in Poland.“

Marta Bucholc

Central European University, Budapest

Professor Renáta Uitz (PI Budapest)

Christianity and the normalization of illiberal constitutionalism in Hungary and East Central Europe

Renáta Uitz will study the normalization of illiberal constitutionalism in Hungary through the inclusion of ‘Christianity’ into the illiberal constitutional script and — consequently — to the constitutional canon. Generally, the normalization of illiberal practices presents a methodological challenge for the study of illiberal constitutional practices, as well as a practical challenge for countering the effect of illiberal practices in Europe amidst a global third wave of autocratization.

Hungary’s iterative constitutional changes to this effect were both prefaced and supplemented by practices elsewhere in Europe, involving supranational and private actors. A focused, comparative study will contribute to the consolidation of the illiberal constitutional canon, and also to the operation of mechanisms that prevent or undermine the efforts to counter the uses and misuse of Christianity in support of illiberal democracy.

 

 

„Normalization of illiberal constitutionalism in Hungary through the inclusion of ‘Christianity’ into the illiberal constitutional script.“

Professor Renáta Uitz

Illiberal Projects

VW Foundation

 

The project „Towards Illiberal Constitutionalism in East Central Europe: Historical Analysis in Comparative and Transnational Perspective“ is funded by the Volkswagen Stiftung within the programme Challenges for Europe (2021-2025).