Despite a long process of democratisation, authoritarian styles of government have been on the rise in Western countries for several years. On the European continent, the rise of authoritarianism is particularly visible in relatively new democracies such as Poland and Hungary. But this does not mean that older democracies such as the United States, France, the United Kingdom, Italy, Germany and the Netherlands are immune to internal threats to liberal constitutional democracy.
How should we understand these internal threats to constitutional democracy, and how can we better protect it? Over the past decade, these internal threats have been interpreted primarily as a form of democratic decline. Providing an answer for the follow-up question of how to protect constitutional democracy therefore resulted in a revival of a research field that emerged in the first half of the twentieth century around the concept of militant democracy[1], which focuses in particular on the permissibility, effectiveness and legal design of party bans.
It is not obvious however, that the problems we see today and the solutions offered to them are primarily related to the functioning of the democratic process. Indeed, it seems that specifically constitutional democracy or the rule of law is in sharp decline today. Authors who refer to these developments (such as those in Poland, Hungary or the United States) as a form of constitutional decline or rule of law-backsliding therefore place another concept of resilience alongside the concept of militant democracy, namely that of constitutional resilience or militant constitutionalism.[2]
In this PhD research project, PhD candidate Chiel Kuypers is researching the normative theorisation of the concept of militant constitutionalism. The research initially focuses on providing a clear conceptual delineation of the problem of constitutional decline as described in relation to several countries (including Poland, Hungary, the United States, but also the Netherlands). The second part of the research addresses the question of how to shape instruments of constitutional resilience. A key element in the development of these instruments is the distinction – often made in the literature[3] – between the formal and non-formal institutions that can defend, strengthen and sustain the rule of law. These are, broadly speaking, legal (constitutional) arrangements on the one hand – also referred to in English as constitutional design – and a constitutional culture on the other hand.[4]
[1] K. Loewenstein, ‘Militant democracy and fundamental rights I,’ The American Political Science Review 1937, vol. 31 no. 3, p. 417-432.
[2] J. Gutmann & S. Voigt, ‘Militant constitutionalism: a promising concept to make constitutional backsliding less likely?’ Public Choice 2021.
[3] See for example: Huq & Ginsburg, UCLA Law Review 2018, 78, p. 68, 78-169, 176; or: Loughlin, Oxford Journal of Legal Studies, Vol. 39, No. 2, 2019, p. 439.
[4] See for example W. Sadurski, The University of Sydney Law School, Legal Studies Research Paper Series 2019/19, p. 1, 18; or C.R. Sunstein, Can it happen here? Authoritarianism in America, New York: Harper Collins 2018, p. 79.