Illiberal and Populist Challenges to Liberal Constitutionalism

Theoretical, Institutional, and Practical Challenges

After more than half a century spread of liberal constitutionalism worldwide, the twenty-first century has seen a significant shift toward illiberal constitutionalism. Embedded in the Enlightenment and tracing back to the late eighteenth century French and US revolutions, liberal constitutionalism greatly expanded its reach after World War Two, the fall of various Western European dictatorships in the 1970s, the transitions from dictatorship to constitutional democracy in Latin-America in the 1980s and 1990s, the transition to democracy of former Soviet East/Central European countries in the 1990s, and the emergence from apartheid in South-Africa. Twenty-first century illiberal constitutionalism, in contrast, has arisen in various ways, including the adoption of new constitutions as in Hungary; introducing illiberalism within and sometimes directly against a liberal constitutional regime as happened in Poland; and within the confines of traditional liberal constitutional democracies, as certain tendencies in countries such as India and the US suggest. Contemporary illiberal constitutionalism is often linked to exclusionary nationalism or populism and looms in certain cases as linked to transition to, or implantation of, authoritarianism. For some, such as Hungary’s Viktor Orban, the difference between liberal and illiberal constitutionalism amounts to a Kulturkampf that revolves around values, but leaves constitutional rule and democracy intact. For others, however, illiberal constitutionalism betrays both constitutional rule and democracy while turning the language and tools of liberal constitutionalism against the fundamental tenets of the latter.

Whether illiberal constitutionalism is in the end merely a variant of its liberal counterpart or an undermining and eventually a downright contradiction of the ideal of liberal constitutionalism is hard to unravel for many reasons. First, the terms ‘liberal’ and ‘illiberal’ are susceptible of varying interpretations that tend to fluctuate even further as one moves from one context to another. For example, are conservative US justices, such as Alito or Thomas, who stand against abortion or same-sex marriage constitutional rights nevertheless within the mainstream of liberal constitutionalism? Second, the ground and context of constitutional government and of constitutionally protected fundamental rights has shifted due to a number of highly consequential factors such as globalization, vast increases in wealth disparities, migratory shifts and dislocations, hardening and fragmentation of identitarian stances, repoliticization of religion, and tribalization of politics. Third, constitutional and political changes within and beyond Westphalian constitutional units have eroded confidence in the continuing viability of such liberal constitutional mainstays as sovereignty, the guarantees of the rule of law, the scope and confines of fundamental rights, and the preservation of a constitutional minimum of democratic guarantees. Fourth, on a theoretical level, is the turn to illiberalism a culmination stemming from an exhaustion with liberal ideology and the multiple ills of embattled liberal democracies? And fifth, what are the institutional and practical preconditions and consequences of actual transitions to illiberal and populist regimes that do not fall into pure authoritarianism?

We invite researchers from across the Max Planck Law network to attend the workshop. You can participate as a member of the audience, and those working on topics relevant to the workshop may also contribute a short presentation. If you are interested in securing one of these limited presentation opportunities, please contact the event co-organizer, Randall Stephenson, at r.stephenson@csl.mpg.de.

This event is for Max Planck Law researchers only. Please note that funding for travel and accommodation can be secured through each Max Planck Law registrant’s Institute. For further inquiries and assistance (including a booking code for a local Freiburg hotel), please contact: reisestelle@csl.mpg.de.

Faculty Participants

Susanna Mancini, Professor, University of Bologna, Italy
Jan-Werner Müller, Professor, Princeton University, USA
Michel Rosenfeld, Professor, Cardozo School of Law, New York City, USA
Pablo Riberi, Professor, National University, Cordoba, Argentina
Bernhard Schlink, Professor, Humboldt University, Berlin, Germany
Fabio de Sa e Silva, Professor, University of Oklahoma, USA
Przemysław Tacik, Professor, Jagiellonian University, Kraków, Poland
Weitseng Chen, Professor, National University of Singapore, Singapore