Democratic backsliding is a global phenomenon, and Europe has not been spared. Indeed, judging by the prominence of countries such as Hungary and Poland in comparative constitutional studies of democratic backsliding, Europe – and Central and Eastern Europe in particular – would appear to have been at the forefront of the rise of autocratic legalism (Scheppele 2018) and authoritarian populism (Halmai 2019). Piercing national borders, the phenomenon is said to now target the very content of international norms (Ginsburg 2021), as well as to undermine, through misappropriation, international human rights (de Burca and Young 2023). Moreover, despite the apparent contradiction between sovereigntist arguments and cosmopolitan engagement, we are faced with well-documented transnational networks of disparate actors sharing legal expertise, strategies, and aims (Ayoub and Stoeckl 2024). Delayed and ineffective defences against constitutional replacement, attempted and successful constitutional amendments, legislative and judicial overhauls, and the breakdown of political conventions, all undermining democracy and the rule of law, have been followed by scholarly and political introspection.
Comparative constitutional scholarship in Europe has responded to democratic backsliding in two broad ways, which EUI professor Silvia Suteu characterises as ‘legalistic reinforcement’ and ‘material critique’. The first camp frames the contemporary backsliding problem as one of abuse of established norms and practices and, indeed, of constitutionalism itself. It searches for conceptual and doctrinal tools to resist this abuse while retaining and reinforcing the liberal democratic foundations of European constitutional orders. Tools of choice include constitutional identity review, unconstitutional constitutional amendment doctrines, EU rule of law and budget conditionality, and the embrace of a militant conception of the rule of law (Drinoczi and Faraguna 2022; Scholtes 2023; Scheppele and Morijn 2024; Sajo 2024). The second camp is differently oriented and seeks to identify the roots of the backsliding in the elitist and neoliberal foundations of constitutional projects nationally and at European level, in the persistent inequalities they support, and in the lack of a redistributive answer to the backsliding challenge (Wilkinson 2021; Bugaric and Tushnet 2021; Czarnota 2022; Bugaric 2023). This division is of course not airtight, though it does provide the contours of by-now solidified axes of research.
I will argue that, after more than a decade of sustained interest in the topic, the time is ripe to take stock of how this work on democratic backsliding reflects on comparative constitutional scholarship in Europe more broadly. The prism that will be adopted is that of developments in several Central and Eastern European constitutional orders. They will allow me illustrate the persistent methodological and normative assumptions and blind spots. Deriving from extrapolation from limited case studies, insufficient contextualism, poor interdisciplinary engagement, and a purported value neutrality which ignores central categories of analysis such as gender, these shortcomings risk being reproduced in the so-called transition 2.0 body of work on restoring constitutional democracy in the region (Bobek et al. 2023). The enduring pathologizing view of the ‘backwards East’, the return of the transitology paradigm, and the false choice between defence and critique of the liberal constitutional project demand reflection, not elision. They are all topics for comparative constitutional law soul-searching in Europe today.