Formalism and Judicial Self-Restraint as Tools Against Populism? Considerations to Recent Developments of the Austrian Constitutional Court

Published in Fruszina Gárdos-Orosz / Zoltán Szente (eds.), Populist Challenges to Consti-tutional Interpretation in Europe and Beyond (2021) Routledge Publishing 75-94

17 Pages Posted: 12 Oct 2021 Last revised: 7 Feb 2022

See all articles by Konrad Lachmayer

Konrad Lachmayer

Sigmund Freud University, Faculty of Law

Date Written: May 4, 2021

Abstract

The paper brings together different perspectives of the topic over the last decades and claim the following hypotheses. First, the Austrian Constitutional Court´s methodological approach changed over time, but these changes did not relate to the populism. Second, the Court shifted in the last 10 years from a rights promoting approach to a rights protecting approach and became more self-restraint (again). Third, the Constitutional Court was confronted with different waves of populism. Fourth, the Court maintained its overall methodological approach when the Court was confronted with populism.

Regarding the analysis of these hypotheses the paper focuses in a first step on the development of populism in Austria. Discussing the question, what can be understood by populism in the Austrian context, the analysis focuses on the rise of populist Freedom Party in Austria and follows the trace of populism to the New People’s Party. In a second step the different approaches of courts towards populism will be examined and be applied to the Constitutional Court´s methodological approaches and its reaction to populism.

Keywords: Democracy, Supreme Court, Constitutional Court, Populism, Democracy, Methodology, Human Rights, Austria, Constitutional Law, Public Law, Constitutional Adjudication[comma separated]

Suggested Citation

Lachmayer, Konrad, Formalism and Judicial Self-Restraint as Tools Against Populism? Considerations to Recent Developments of the Austrian Constitutional Court (May 4, 2021). Published in Fruszina Gárdos-Orosz / Zoltán Szente (eds.), Populist Challenges to Consti-tutional Interpretation in Europe and Beyond (2021) Routledge Publishing 75-94, Available at SSRN: https://ssrn.com/abstract=3918334

Konrad Lachmayer (Contact Author)

Sigmund Freud University, Faculty of Law ( email )

Freudplatz 3
Vienna, 1020
Austria

HOME PAGE: http://www.lachmayer.eu

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