19 October 2023
Post-populist Populism
Good news for democracy from Poland? It appears that in the recent general elections, the right-wing populist Law and Justice party (PiS), won most seats but not enough to allow it to form a coalition. Donald Tusk's Civic Coalition has a better chance of forming a coalition, which might put an end to PiS' eight years of rule. This, prima facie, seems like a victory of democracy over populism. While this is certainly true, in this post we wish to flag certain warning signs that this possible democratic rotation is not the end of the struggle for democracy but merely the beginning of this process. This is because even when populists are voted out of office, their legacy - at least partially - persists. Continue reading >>
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04 July 2023
Bolsonaro Faces the Rule of Law
On 30 June 2023, the Brazilian Electoral Superior Court ruled that former President Jair Bolsonaro is disqualified from running for any electoral position for the next eight years. Although there are fifteen other electoral actions brought against Bolsonaro by other political parties or by public electoral prosecutors, most of which refer to accusations of attempting to compromise the integrity of the 2022 elections, this was the first case to reach Brazil’s highest electoral court. Despite there being a precedent, the ruling is not a legal innovation, but the mere application of existing laws. Continue reading >>
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16 June 2023
The Brave New World of Areios Pagos
These are exciting times for Greek constitutionalists. In its capacity as electoral judge, the first section of the Greek Supreme Civil and Criminal Court (Areios Pagos) recently banned the participation of the neo-Nazi Hellenes National Party in the elections of 21 May. In order to accept the constitutionality of the legislative ban on Hellenes National Party, Areios Pagos had to provide not only a new interpretation of Greek constitutional provisions, but also a whole new vision of democracy, of the Greek and the European Constitution and of Greek constitutional politics. The brave new world of Areios Pagos is part of a new constitutionalist approach that is likely to affect the application of constitutional provisions in future cases, as the more recent decision concerning the elections of 25 June shows. Continue reading >>
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15 June 2023
Walking A Democratic Tightrope
That was fast. On 8 June, only 11 days after the Polish so-called ‘Lex Tusk’ was signed into force, the Commission launched an infringement procedure against Poland. For the first time, the Commission is relying on the principle of democracy in Art. 10 TEU as an autonomous plea, dropping another bombshell shortly after the first direct invocation of Art. 2 TEU in infringement proceedings against Hungary earlier this year. This contribution discusses both the perks and potential perils of the direct enforcement of the principle of democracy in Art. 10 TEU. On the one hand, a shift from what is arguably better called ‘militant rule of law’ towards more literally EU militant democracy is a positive development, as it better captures the nature and range of the principles which are de facto under threat in several EU Member States. On the other hand, the present infringement action illustrates the principled challenge of militant democracy to preserve the possibility of democratic regime change, all whilst not lapsing into a form of institutional conservatism. Continue reading >>
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24 May 2023
Greece’s Ambivalent Turn to Militant Democracy
On 2 May 2023, the Greek Court of Cassation (Areios Pagos) ruled on the certification of the candidate lists of the political parties that could lawfully participate in the Greek parliamentary elections of 21 May. It refused to certify the participation of the Hellenes National Party, the successor of the neo-Nazi Golden Dawn party. The refusal to certify the party breaks away from previous case law on political party certification and indicates a tentative, yet incomplete embrace of militant democracy by a jurisdiction that has traditionally been hostile towards its philosophy. Continue reading >>
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23 June 2022
Governing the Memory of the Present
Putin’s Russia is a global champion of memory laws that fabricate the state’s perennial innocence and glory and make it a criminal offense to diverge from the state-sanctioned historical narratives. The state’s propaganda has also promoted symbols that convey support for or condoning of the Russia’s war, such as the “Z”, “V”, and St. George's ribbon. The emergence of these symbols in the public sphere has put militant democracy provisions existing in many European legal orders into the spotlight, but also propelled lawmakers in some states to adopt new provisions prohibiting the use of such symbols. We discuss the reaction mechanism in Lithuania, Germany, and Poland. Continue reading >>
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17 December 2019
Democratic (Dis)Armament
On 3 September 2019, the Slovak Supreme Court ruled against an MP of the far-right political party Kotleba – People’s Party Our Slovakia. Due to the conviction, Mr Mazurek lost his seat and another candidate of the PPOS took his place. Depending on the factors considered, the case can be seen either as armament or as disarmament of democracy in Slovakia. Continue reading >>
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09 September 2019
Ein Volkskanzler
Jetzt mal angenommen, es käme einer. Mal angenommen, da wäre plötzlich einer, der die Menschen begeistert und mit Hoffnung erfüllt. Ein Neuer, ein Erneuerer, ein von der alten Bundesrepublik und ihrer Politik und ihrem zerfallenden Parteiensystem gänzlich Unkontaminierter. Ein Zukunftsszenario. Continue reading >>30 April 2019
A Failed Attempt to Dissolve a Political Party in Slovakia
On 29 April 2019 the Supreme Court of the Slovak Republic (SCSR) refused to dissolve the political party Kotleba – Ľudová strana Naše Slovensko (People’s Party Our Slovakia). A five-judge administrative senate essentially found insufficient evidence to ban the party and in a press release pointed the finger at the plaintiff, the General Prosecutor’s office, for mishaps in how the case was argued. Continue reading >>
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