Populist Constitutionalism and Illiberal Democracies

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POPULIST CONSTITUTIONALISM AND ILLIBERAL DEMOCRACIES

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POPULIST CONSTITUTIONALISM AND ILLIBERAL DEMOCRACIES

Between Constitutional Imagination, Normative Entrenchment and

Political Reality

Edited by Martin Belov

Cambridge – Antwerp – Chicago

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Populist Constitutionalism and Illiberal Democracies. Between

Constitutional Imagination, Normative Entrenchment and Political Reality © Th e editor and contributors severally 2021

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To My Wife Teodora with Love and Admiration

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Intersentia vii

LIST OF CONTRIBUTORS

Martin Belov , Dr., is Professor in Constitutional and Comparative Constitutional Law at the University of Sofi a ‘ St. Kliment Ohridski ’ , Bulgaria. He is also Vice Dean of the Faculty of Law and is responsible for international relations and digitalisation of the education and scientifi c activities in the Faculty. He has been a visiting professor at many European universities, a project researcher at the Max-Planck Institute for European Legal History, Frankfurt am Main, Germany (2010–2012) and a visiting researcher at the Institute for Federalism, Fribourg, Switzerland (2014). He has published 18 books and more than 80 scientifi c papers.

Agnieszka Bie ń -Kaca ł a is Professor in the Department of Constitutional Law, Faculty of Law and Administration at Nicolaus Copernicus University in Toru ń , Poland. Her monograph on the sources of law was recognised as the best dissertation by the Chief of the Sejm Chancellery and the journal Sejm Review in 2014. Since 2015, she has been focusing on illiberal constitutionalism and has published, together with Professor T í mea Drin ó czi, several works on this topic. Th eir newest co-edited book is Rule of Law, Common Values, and Illiberal Constitutionalism (Routledge, 2021).

Paul Blokker is Associate Professor at the University of Bologna, Italy, and a research coordinator at Charles University, Prague, Czech Republic. He is co-editor of the journals Social Imaginaries and European Cultural and Political Sociology . His most recent book (with Laura Guercio) is Sociologia dei diritti umani (Mondadori, 2020).

Monica Bonini is Associate Professor at the Universit à degli Studi di Milano-Bicocca, Italy. Th ere, she is a member of several scientifi c committees, including the PhD committee, and teaches public law, communication law and policy and banking law. She is a visiting professor at the University of Konstanz, Germany, where she delivers courses on Italian constitutional law. Her research interests include public law,

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Intersentia List of Contributors

xiv

comparative constitutional law and EU law. Professor Bonini has numerous publications in the above-mentioned scientifi c fi elds and is a member of many research groups in these fi elds.

Carlo Alberto Ciaralli is PhD in Constitutional Law and Post-Doctoral Research Fellow at the University ‘ G. d ’ Annunzio ’ of Chieti-Pescara, Italy.

He obtained the international Master of Studies at the European Law and Governance School (ELGS) and is the author of several papers published in national and international scientifi c journals and reviews. His research topics concern the Italian and Spanish regional fi nancial autonomy, the crisis of political parties and representative democracy in a time of globalisation and the rise of populism in Europe.

Eoin Daly is a lecturer in law at the National University of Ireland, Galway.

His research focuses on the intersection between political theory and constitutional law, particularly republicanism, judicial review, Rousseau, secularism and France. He is the author of Rousseau ’ s Constitutionalism:

Austerity and Republican Freedom (2017) and Religion, Law and the Irish State (2012), as well as co-author of Th e Political Th eory of the Irish Constitution (2015).

Gianmario Demuro (PhD in Public Law, Florence, Italy) is Full Professor of Constitutional Law in the Department of Law, University of Cagliari, Italy. He was Adjunct Professor at John Marshal Law School, Chicago, USA, where he taught EU regulation and governance (1999–2019). His research focuses on political systems, constitutional conventions, human rights and multilevel constitutionalism; in the fi eld of human rights he co-edited W.BT. Mock and G. Demuro (eds), Human Rights in Europe.

Commentary on the Charter of Fundamental Rights of the European Union (Carolina Academic Press, 2010).

T í mea Drin ó czi is Professor in the Department of Constitutional Law at the Faculty of Law, University of P é cs, Hungary. She has been a visiting professor in several European universities, served as a professor at the Kenyatta University School of Law, Nairobi, Kenya (2018–2019) and regularly invited as an expert by OSCE ODIHR. Her research interests cover comparative constitutional change, illiberal constitutionalism, constitutional identity and the quality of legislation. Her newest co-edited book with Agnieszka Bie ń -Kaca ł a is Rule of Law, Common Values, and Illiberal Constitutionalism (Routledge, 2021).

Wojciech Engelking is a PhD candidate at the University of Warsaw, Poland. His main areas of research are Carl Schmitt, Leo Strauss, states

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List of Contributors

Intersentia xv

of exception and the relationship between law and literature. He was a research fellow at Mainz University, Germany, Tel Aviv University, Israel, and Universit é Paris 1 Panth é on-Sorbonne, France. His works have been published in History of European Ideas , Law, Culture and the Humanities and Pa ń stwo i Prawo . He is also a novelist and columnist of the Polish edition of Newsweek .

Angela Di Gregorio is Full Professor of Public Comparative Law at the University of Milano, Italy. Her research interests include transition to democracy, democratic deterioration, constitutional justice, transitional justice and academic freedom. She is a member of many Italian and international lawyer ’ s associations and is Editor-in-Chief of the journal Nuovi Autoritarismi e Democrazie (New Authoritarian Regimes and Democracies).

Marcin Kilanowski is Professor of Law at Nicolaus Copernicus University in Toruń , Poland. Aft er completing his studies and research in philosophy and law at Nicolaus Copernicus University, Utrecht University, the Netherlands, Oxford University, UK, and Harvard University, USA, he was a visiting researcher and a visiting scholar at Freie Universität, Germany, Th e Institute for Social Research at Johann Wolfgang Goethe-Universität, Germany, Harvard University and Science-Po Ecole de Droit in Paris.

Besides his previous work as a law tutor at Harvard College, teaching assistant at the Institute of Global Law and Policy at Harvard Law School and present work at Nicolaus Copernicus University, he worked as a member of the Prime Minister of Poland Working Group on Corporate Social Responsibility and in various ministries. His research focuses on the development of democracy, civil society, human rights and global governance.

Zolt á n Pozs á r-Szentmikl ó sy is Associate Professor of Constitutional Law at the ELTE E ö tv ö s Lor á nd University, Budapest, Hungary. He is a member of the Advisory Board of the ICON-S CEE Chapter. He is a regular co-author of the Hungarian report of the annual Global Review of Constitutional Law, and author and co-author of chapters published in international volumes on the current challenges related to the separation of powers and constitutional adjudication. In his current research, he focuses on alternative interpretations of the separation of powers.

Przemyslaw Tacik is Assistant Professor at the Institute of European Studies of the Jagiellonian University of Krak ó w, Poland. A philosopher, lawyer and sociologist by education, he holds PhDs in philosophy (2014)

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xvi

and international law (2016). In his academic work he combines both philosophical and legal perspectives, attempting to approach them from an interdisciplinary angle. His main fi elds of interest are international law, human rights law and EU law. He has authored three books: Sociology of Zygmunt Bauman (2012, in Polish), Th e Freedom of Lights. Edmond Jab è s and Jewish Philosophy of Modernity (2019) and Th e Accession of the European Union to the European Convention on Human Rights (2017, in Polish), over 40 articles and one translation of a poetry volume (from French to Polish).

Anna Tarnowska, Dr. hab., is Assistant Professor in the Department of History of Legal and Political Th ought and German Law at the Nicolaus Copernicus University in Toru ń , Poland. Her main fi elds of interest are history of public law in Poland and in Germany, history of modern constitutionalism and history of administration and state structures.

She was a member of an international group conducting research in the frames of the European Research Council Advanced Grant ‘ Reconsidering Constitutional Formation ’ , headed by Professor Ulrike M ü ssig (University of Passau, Germany, 2014–2018). Since 2017, Dr Tarnowska has been involved as a head of project in the National Science Centre grant:

Legislative delegation in a representative democracy (program OPUS 11).

Zoltan J. Toth, Dr., graduated in law from the University of Szeged, Hungary, in 2002. Since 2002, he has been working in the Faculty of Law at K á roli G á sp á r University, Budapest. He is also currently serving as a chief counsellor to the Constitutional Court of Hungary. Previously, his main research topic was the matter of capital punishment; now he studies the theoretical and practical aspects of constitutional adjudication and the issue of statutory interpretation. Altogether, he has published 14 books as author or co-author; the latest one is the monograph Changing Attitudes Towards the Death Penalty: Hungary ’ s Renewed Support for Capital Punishment (Palgrave Macmillan, 2020).

Julia Weso ł owska is a PhD candidate in the Department of Philosophy of Law and Legal Ethics of Jagiellonian University in Krak ó w, Poland. Her main research interests concern legal philosophy and legal realism: her work centres on the interactions between law and emotions (especially in tort law), as well as the relationships between law and religion. She is working on a dissertation concerning the legal and philosophical concept of harm and is conducting a research project funded by the National Science Centre of Poland concerning Polish courts ’ evaluation of emotional distress (2019).

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List of Contributors

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Wojciech W ł och , PhD in philosophy (2012) and law (2017), is an assistant in the Department of Constitutional Law, Nicolaus Copernicus University in Toru ń , Poland. His research interests focus on the philosophical and theoretical aspects of constitutional law. As part of his theoretical research, he studies I. Kant ’ s thought and post-Kantian tradition, and investigates the concepts of democracy, constitution and the rule of law. In the fi eld of legal research, he has used philosophical concepts to analyse legal phenomena. He is the Scientifi c Editor of the fi ft h volume of the Polish edition of collected works by I. Kant and author of the monograph on Kant ’ s philosophy of law. His last book (2018) is devoted to the concept of constitution in the doctrines of H. Kelsen and J. Rawls and their importance for understanding the essence of the democratic system.

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Populist Constitutionalism and Illiberal Democracies

POPULIST CONSTITUTIONALISM AND ILLIBERAL DEMOCRACIES

Between Constitutional Imagination, Normative Entrenchment and

Political Reality

Edited by Martin Belov

CONTENTS

LIST OF CONTRIBUTORS