Athena – Critical Inquiries in Law, Philosophy and Globalization

A Pluralist Theory of Constitutional Justice. Assessing Liberal Democracy in Times of Rising Populism and Illiberalism

Sara Canduzzi — 2024-05-21

A Pluralist Theory of Constitutional Justice. Assessing Liberal Democracy in Times of Rising Populism and Illiberalism advances a theoretically rich and extremely engaging case for the suitability of liberal constitutionalism to achieve justice in contemporary globalised and pluralistic societies. While acknowledging that actual liberal constitutional models have oftentimes failed to effectively address some of the most significant challenges of our time, the book offers a valuable contribution to the debate by shedding light on the potential of liberal constitutionalism, when taken in its ‘ideal’ form, as well as its conceptual superiority over competitors such as illiberalism, populism, and authoritarianism. In doing so, the author Michel Rosenfeld relies on the notion of comprehensive pluralism as a conception of the good in its own right that ought to be incorporated within liberal constitutionalism in order to secure and improve the ability of the latter to meet the demands of justice. While the author's case for comprehensive pluralism is extremely compelling, the connection that the book seeks to establish between the requirements of justice under comprehensive pluralism and the liberal constitutional model requires further discussion.

Identity Politics and the Militarisation of Constitutional Law

Giuseppe Martinico — 2024-05-21

In this article, I shall focus on the legal consequences of one of the most obvious features of populisms: identity politics. In particular, I shall explore how populists in power use constitutional law to identify and fight the alleged enemy, thus confirming their Schmittian flavour. In Schmitt, public law becomes part of a constitutional narrative that represents the people as forged by a static identity that goes back to the mythological origin of the legal system. This reconstruction is based on an organicistic reading of the concept of the people. This identitarian public law makes instrumental use of the moral argument, the historical argument and the religious argument. Populists in government tend to militarise constitutional law in many ways and in this article I will focus on two strategies: one that looks backwards, consisting of the instrumentalisation of the argument of constituent power; and one that looks forward and leverages the use of constitutional amendment.

The Fragility of Liberal Democracy Faced with Fascism and Climate Politics

Johan Van der Walt — 2024-05-21

This article engages with the particular fragility of liberal democracy in current times. The particularity at stake here concerns the two major challenges that liberal democracy faces today, notably the rising allure of fascism (mostly AF hereafter) and the rise of climate politics (mostly CP hereafter). The article is not concerned with the external threats that fascism and climate politics pose for liberal democratic law. It engages with the way that any endeavour to deal with these threats threatens liberal democracy with the internal self-destruction of its essential ideals and principles.

Democracy in Latin America: Between Backsliding and Resilience

Flavia Freidenberg — 2024-05-21

Democracy is strongly threatened, but, even so, it still resists. Although comparative literature is divided between pessimists and optimists (Freidenberg and Saavedra Herrera, 2020), or between those who see its setbacks (Bermeo, 2016; Diamond, 2020; Haggard and Kaufman, 2021) and those who highlight its resilience (Freidenberg 2024; Merkel and Lührmann 2021; Boese et al. 2021; Lieberman et al., 2022; Freidenberg 2023; or Levitsky and Way 2023), this research critically assesses the health of democracy, especially in two dimensions: electoral and liberal for 18 Latin American countries since 1978. The main argument contends that there is no single trend indicating global backsliding or, on the contrary, a generalized advancement of democracy, but rather, in any case, there are changes in different directions within the two main dimensions. While the liberal dimension is receding, the electoral dimension is being resilient. Backsliding is identifiable in relation to loss of basic commitments and the elites' disloyalty to democracy; difficulties in maintaining the currency of the Rule of Law, pluralism, respectful coexistence, and the independence of institutions; strategic manipulation of the formal rules and difficulties of access to resources and welfare; while advancements are visible in stability and cleanliness of elections, autonomy and professionalism of electoral arbitrators; alternation of power and the fact that those who govern lose elections; active participation of pro-democracy citizens; efforts for the inclusion of underrepresented groups and the building of parity democracies, among others.

Cut off the King's Head? Constitutional Democracy and the State Against Arbitrariness

Donald Bello Hutt — 2024-05-21

Constitutional democracies are increasingly perceived as limited devices. Against invitations to reducing their influence and size, these pages highlight one aspect or function that the State and constitutionalism share and which turn them into valuable instruments: avoidance of arbitrariness. I here argue that a central feature of both institutions is a commitment to making sure that citizens must lead lives that can be planned with some degree of certainty and reasonableness.

Foreword

Massimo Fichera — 2024-05-21