The resilient constitutional state

Duration
2022 until 2027
Project member(s)
Kuypers, M.R.A. (Chiel) Prof. Tinnevelt, R.B.J. (Ronald) , prof. dr. J.J.J. (Joost) Sillen
Project type
Research

In this PhD research project, PhD candidate Chiel Kuypers is investigating the normative theorisation of the concept of the resilient constitutional state (militant constitutionalism).

The research initially focuses on 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 constitutional resilience. A key element in the development of these instruments of resilience is the distinction – often made in the literature – between the formal and non-formal institutions that can defend, strengthen and sustain the rule of law. These are, on the one hand, legal (constitutional) arrangements – also referred to in English as constitutional design – and, on the other hand, a culture of the rule of law.

Despite a long process of democratisation, authoritarian styles of government have also 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 or 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. On the follow-up question of how to protect constitutional democracy, a new field of research emerged in the first half of the twentieth century around the concept of the resilient democracy, focusing in particular on the permissibility, effectiveness and legal design of party bans.

Nevertheless, it is not obvious that the problems we see today and the solutions offered to them are primarily related to the functioning of the democratic process. Indeed, the constitutional state also seems to be in sharp decline today. Authors who see developments (such as those in Poland, Hungary or the United States) as a form of constitutional decline therefore place another concept of resilience alongside the concept of resilient democracy, namely that of a resilient constitutional state. Following the example of democracy, the constitutional state should have a form of self-defence with its own instruments of resilience.

This research aims to provide a normative theory around this new concept of constitutional resilience in order to provide tools for a more effective protection of the rule of law. It focuses not only on the formal institutions that can make the constitutional state resilient (constitutional design), but also on the informal institutions (such as a culture of the rule of law).

Results

Kuypers, M.R.A. & Tinnevelt, R.B.J. (2023). Een weerbare Nederlandse rechtsstaat. Nederlands Juristenblad, 98 (17), 1382-1389.

Contact information