Illiberal Constitutionalism: Viable Alternative or Nemesis of The Modern Constitutional Ideal?

Gary Jacobson and Miguel Schor, eds., Comparative Constitutional Theory (2nd Edition)

Cardozo Legal Studies Research Paper No. 2024-13

31 Pages Posted: 28 Feb 2024

See all articles by Michel Rosenfeld

Michel Rosenfeld

Yeshiva University - Benjamin N. Cardozo School of Law

Date Written: February 28, 2024

Abstract

Illiberal constitutionalism has spread recently in various parts of the world raising the question of whether it is a viable alternative to its liberal counterpart or a pathway to authoritarianism. ‘Liberal’ and ‘illiberal’ are contested terms and liberal constitutions are compatible not only with philosophical liberalism, but also with republicanism, pluralism, and certain kinds of liberal communitarianism. Contemporary examples of illiberal constitutionalism fall into three different types: communal based, such as the one in Singapore; populist based such as that in Orban’s Hungary; and opportunistic, such as that invoked by Trump and Bolsonaro. Philosophically, illiberal constitutionalism works well with Karl Schmitt’s anti-liberal and anti-pluralist political theology. Ultimately, unlike its communal based counterpart, the populist kind of illiberal constitutionalism fails to conform with the four pillars deployed by liberal constitutionalism, and looms as a pathway to authoritarianism.

Keywords: authoritarianism, democracy, globalization, Kulturkampf, liberal and illiberal constitutionalism, pluralism, populism

Suggested Citation

Rosenfeld, Michel, Illiberal Constitutionalism: Viable Alternative or Nemesis of The Modern Constitutional Ideal? (February 28, 2024). Gary Jacobson and Miguel Schor, eds., Comparative Constitutional Theory (2nd Edition) , Cardozo Legal Studies Research Paper No. 2024-13, Available at SSRN: https://ssrn.com/abstract=4741850

Michel Rosenfeld (Contact Author)

Yeshiva University - Benjamin N. Cardozo School of Law ( email )

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