The IACL Roundtable on "Current Challenges to Constitutional Democracy": Summary and Outcomes

Uwe Kischel & Francesco Biagi

University of Greifswald & University of Bologna

Editors’ note: This post is a report by members of the IACL Executive Committee of the IACL Roundtable on Current Challenges to Constitutional Democracy held in Rome on 3 and 4 October 2024.

Democracy is never easy. To make democratic States work, to ensure continued freedom, citizens must be willing to participate, must live and, if necessary, defend the basic values for which their society stands. Democratic States have always faced challenges, and had to work to overcome them. The IACL roundtable that was held in Rome at the Sapienza Università di Roma on October 3-4, 2024 started from the assumption that, in recent years, the threats to constitutional democracies have escalated to a degree that potentially jeopardizes their very nature, despite regular elections giving the impression of a stable democracy. In this respect another concept, the rule of law, was seen as the foundation of constitutional democracy. Therefore, the conference aimed at a reexamination of the relationship between democracy and rule of law. It intended to analyze the concept of "democratic backsliding" leading to "hybrid regimes" – going under the different labels of "illiberal democracy", "electoral autocracy", or "populist regimes" – and to discuss them in terms of democratic transformation and deviation from constitutional democracy. In doing so, the Roundtable was designed to pay attention both to the empirical question of how democratic backsliding has developed in different countries, and to the theoretical features of the concept as distinguished from, and also connected with, the various versions of hybrid regimes.

In their opening speeches, Helle Krunke, President of the IACL, and Cesare Pinelli, Professor at Sapienza University and generous host of the Roundtable, gave a short overview of the topic, pointing to populism, elections, artificial intelligence and the rule of law as some of the main components of the current crisis of democracy. From a more practical point of view, they underlined that three cases usually come to mind when talking about challenges to constitutional democracy: Donald Trump in the United States, the situation in Hungary, and the recently replaced government of Poland (a country which is now experiencing a process aimed at restoring the rule of law).

In his wide-ranging keynote speech, Michel Rosenfeld focused on the connection between distributive justice and democracy, noting, inter alia, the exclusionary tendencies of populist thinking. He also noted the important relationship between ethnos and demos, requiring some minimum level of commonality within the populace for a working democracy. The overview of the multitude of topics that potentially fall into the category of challenges to democracy made clear that the topic is more a catch phrase for any number of perceived problems than a single issue that can be analyzed and possibly solved in a focused way. By contrast, the keynote speech by Wojciech Sadurski focused on a very specific challenge that recently emerged with respect to Poland, namely the challenge of rebuilding a constitutional democracy after authoritarian populism. Sadurski pointed out that the number of countries affected by authoritarian decline is sometimes exaggerated, and that illiberal democracies respect the right to free, competitive elections, even if the context might not always be fair. Therefore, populists not only win, but also lose, elections. The outcome is generally determined by the degree of erosion of democratic institutions, especially the judiciary, that has taken place before the respective election. As the sole exception to this rule, Polish populists lost the last election in spite of prior heavy erosion of democratic institutions. Sadurski then painted a fascinating picture of the problems faced by the new government trying to rebuild liberal democracy without itself breaking the rule of law. It finds itself caught between, on the one hand, a deep decline of democratic procedures and, on the other hand, democratic institutions formally still intact but with many of the authoritarian rules entrenched and, therefore, difficult to change. Sadurski called for new solutions and for dispensing with an overly traditional way of viewing the strictures of the rule of law. He expressly accepted that this means bringing about the rule of law while violating it at the same time.

The first panel addressed the question of populism in the 21st century. The problem was rephrased by Yves Mény: Can democracy lead to undemocratic results? Is populism a danger for democracy or its expression? The center of the problem seems to be the open concept of "the people", which is easily manipulated. Mény's core question consequently was whether populism is an expression of short-term discontent, or rather a structural component of democracy. Democracy, he maintained, walks on two legs: a constitutional one, that has dramatically changed in recent years, and a popular one, which has basically remained unchanged, and which needs to be strengthened. Susanna Mancini explored the relationship between populism and gender, pointing out that in this respect, populisms and illiberalism vastly overlap. She identified gender conservatism as a common trait of all illiberal groups and opposed the de-politicization and privatization of gender issues within the global cultural wars. Merris Amos explained the relationship between populism and human rights law reforms in the United Kingdom. She pointed out that this topic is right now of a more historical interest, since the current UK government is not populist anymore. She then concentrated on the restrictions on human rights proposed by the – in the end unsuccessful – Human Rights Bill of 2022, and on the use of autocratic methods, the features of which she explained in detail. Pablo Riberi spoke on institutional decay and antipolitical qualunquismo in Latin America's faltering democracies. As a starting point he chose the seemingly simple question: How can a community secure the benefit of social cooperation without being ruled by a master or dictator? Shared power, pluralism and common good were among the central, traditional elements of the answer, which however finds itself in a new environment under the conditions of democracy. Riberi than applied his insights to the current populist Argentine government under President Milei.

The second panel on elections in democracies in crisis began with a presentation by Jasmin Dawood that argued in favor of a reconceptualization of elections in the age of democratic decline and disinformation. For this purpose, Dawood distinguished between the election day model and the democratic government model. For her, effective government is an important part of democracy. Elections alone do not ensure an effective democratic government. Autocratic rulers come to power by way of elections. To prevent this, the results of elections must conform to basic standards that devolve, for instance, from equality. With respect to disinformation, Dawood called for a multifaceted public-private approach. Continuing the argument that democracy must be effective, Jan Zielonka asked whether elections sustain or pervert liberal democracy. Digitalization was a gamechanger that created a flat world at high speed to which democracy has not adapted. For instance, problems like migration cannot be solved by democracies since they require support action in other countries, and not at the border. Democracies, he maintained, are not competent, yet it is sovereignist thinking that often wins in elections. Valentina Rita Scotti then talked about the decline of Turkish electoral democracy, outlining recent developments and their impact on Turkey. The government changed electoral procedures, made the opposition much less visible, and created a nepotistic system, to name just a few of the problematic changes. Eleonora Bottini focused on the judicial oversight of elections, assessing the role of courts in preventing democratic backsliding. She pointed out that courts increasingly put aside the political question doctrine and get involved in election oversight, and she went into details on the example of Senegal which she explained against the background of French constitutional law.

The third panel – for junior scholars – was devoted to democracy in the age of Artificial Intelligence (AI). Maria Kotsoni discussed the need to adapt the right to education in the digital era. She examined a recent statement by the European Committee of Social Rights, and a proposal aimed to constitutionalize digital literacy in Portugal. Kotsoni emphasized the need to rethink the content of the right to education, which should include, inter alia, a new constitutional vocabulary (e.g. digital exclusion, digital literacy). Tainá Garcia Maia analyzed one of the new frontiers of democracy, i.e. the challenges caused by AI in governance and electoral processes, with a particular focus on Brazil. Garcia Maia showed that these challenges are related to the “boundaries of truth” (with the risk of misinformation and disinformation) and to key principles such as accountability and transparency. Boldizsár Szentgáli-Tóth discussed the role of AI in parliamentary work. In his opinion, AI offers numerous important advantages, but at the same time it is crucial to adopt a series of safeguards. After providing different examples, Szentgáli-Tóth concluded his presentation arguing that AI should assist, and not replace human intervention in parliaments. He also argued that inclusion of AI in parliamentary work should always be under human supervision, rather than adapting the parliamentary framework to the special needs of AI. Miki Kadota discussed the legitimacy of smart video surveillance of public assemblies. By mainly relying on the case study of Germany, Kadota explained why intelligent surveillance represents an indirect intervention in freedom of assembly, and proposed ways to limit the negative impact that this form of surveillance may have on fundamental rights. Marek Piotr Kaczmarczyk focused on the right to a fair trial in a digital world. More specifically, Kaczmarczyk discussed to what extent AI should be involved in the administration of justice, examining both benefits and risks of the use of new technologies in this field. Finally, Robert Rybski focused on the boundaries of digitalizing money in liberal constitutional democracies, explaining the complex (and often controversial) relationship between Central Bank Digital Currencies and AI.

The fourth Panel was devoted to the rule of law in the age of democratic decline. Gonçalo de Almeida Ribeiro focused on judicial independence in the European Union, with a special focus on the Court of Justice of the EU (CJEU). Ribeiro critically examined a series of judgments (e.g. regarding Portugal and Poland) delivered by the CJEU over the past few years in this field, and discussed the relationship between the CJEU and national courts (including constitutional courts), including for example in the well-known Taricco case. George Katrougalos analyzed the relationship between democracy and the rule of law, a relationship that – when not correctly balanced – may lead to illiberal democracy or undemocratic liberalism. Katrougalos then examined the people’s weak trust in institutions and politics, especially in the West, and the problem of the inequal distribution of wealth. Katrougalos also stressed that populism is not a cause, but rather a symptom, of the crisis of democracy. In her presentation, Rachel E Lopez challenged the idea according to which, within the context of transitional countries, the prosecution of key political and military leaders necessarily leads to more democratic outcomes. Relying on the case study of Guatemala, Lopez showed that sometimes prosecuting political actors can also backfire, and can also increase the polarization of society. Devinder Singh and Shruti Dahiya examined the impact of the colonial legacy on the rule of law in India. Singh and Dahiya also discussed a series of ongoing conflicts and tensions between societal practices and the rule of law existing within Indian society, particularly in the fields of the codification of the personal status code, divorce, inheritance rights, and honor killing.

The presentations and discussions of this Roundtable identified many of the problems involved, analyzed their meaning and sometimes proposed solutions. As could be expected with such a broad topic, much still is in need of clarification. For instance, the notion of populism, central to all arguments about the challenges to democracies, needs to be more clearly defined and delineated, and such a definition needs to be strictly adhered to throughout the analysis. In particular, future research should more clearly determine the difference between, on the one hand, populism as a structural and legal problem, and on the other hand, mere conservative political positions that reject progressive or liberal (in the US sense of the word, i.e. left-wing) policies and values. The fight against any dangerous democratic backsliding, as it occurred for instance in Poland, would gain additional support and momentum if this fight was clearly distinguished from a simple political argument against conservative worldviews or in favor of a progressive change of society, which should be decided by majority vote. The contributions to this Roundtable showed a wide variety of explicit and implicit positions on this difference. In a similar vein, constitutional law scholars should be careful not to throw out the baby with the bathwater, arguing against elections or rule of law in the name of democracy because they politically do not like some results of majority rule within the limited restraints imposed by constitutional law in general and its civil rights provisions in particular.

Uwe Kischel is Professor of Public Law, European Law, and Comparative Law at the University of Greifswald and a Member of the Executive Committee of the IACL.

Francesco Biagi is an Associate Professor of Comparative Public Law, University of Bologna Department of Legal Studies and the Deputy-Secretary General of the IACL.

Suggested citation: Uwe Kischel and Francesco Biagi, ‘The IACL Roundtable on "Current Challenges to Constitutional Democracy": Summary and Outcomes’ IACL-AIDC Blog (26 November 2024) The IACL Roundtable on "Current Challenges to Constitutional Democracy": Summary and Outcomes — IACL-IADC Blog